DECEMBER 2002

THERE WERE NO COMMISSION DECISIONS OR ORDERS

ADMINISTRATIVE LAW JUDGE DECISIONS

12-03-2002 Original Sixteen to One Mine, Inc.
12-18-2002 Kinder Morgan Operationg L.P. "C"
12-23-2002 Cord Easley v. Morrill Asphalt Paving
12-24-2002 Arnold Crushed Stone, Inc.
12-31-2002 The Ohio Valley Coal Company

i

WEST 2002-224-M Pg. 1053
KENT 2003-85-R
Pg. 1055
WEST 2001-133-DM Pg. 1058
CENT 2002-242-M Pg. 1070
LAKE 2002-61
Pg. 1072

DECEMBER 2002

No cases were filed in which Review was granted during the month of December:

No cases were filed in which Review was denied during the month of December:

ii

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

December 3, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2002-224-M
A. C. No. 04-01299-05542

V.

Docket No. WEST 2002-225-M
A. C. No. 04-01299-05543

ORIGINAL SIXTEEN TO ONE MINE,
INCORPORATED,
Respondent

Sixteen To One Mine

DECISION
Appearances: Matthew Vadnal, Esq., Office of the Solicitor, U.S. Department of Labor,
San Francisco, California, on behalf of Petitioner;
Michael Miller, President, Original Sixteen to One Mine, Inc.,
Alleghany, California, on behalf of Respondent.
Before:

Judge Melick

These cases are before me upon petitions for assessment of civil penalty under Section
105(d) of the Federal Mine Safety and Health Act of 1977 (the Act). Citations No. 7992100 and
7987759 have been severed from Docket No. WEST 2002-224-M and consolidated with Docket
No. WEST 2002-224-M(A).
At hearings the Secretary vacated Citations No. 7992098, 7996613 and 7992158 and
proposed to settle the remaining citations. Modification of certain citations and a reduction in
penalty to $852.00, were proposed. I have considered the representations and documentation
submitted in this case and I conclude that the proffered settlement is acceptable under the criteria
set forth in Section 11O(i) of the Act.

WHEREFORE, the motion for approval of settlement is GRANTED, and it is
ORDERED that Respondent pay a penalty of $852.00, within 40 days of this order.

/ ,1

/

.

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I l
\(

l;.if 1.' \ -l/ /Il i ·1!( I
1

l.v..- v~

Gary tyiclick )

l~

Admi~istrati Vet Law Judge
(202) 434-9971

1053

!

v _/

Distribution: (Certified Mail)
Matthew Vadnal, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson St., Suite
1110, San Francisco, CA 94105
Michael M. Miller, President, Original Sixteen to One Mine, Inc., P.O. Box 909, 527 Miners St.,
Alleghany, CA 95910
\mca

1054

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
600 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001
Telephone: (202) 434-9958
Fax: (202) 434-9949

December 18, 2002

KINDER MORGAN OPERATING
L.P. "C",
Contestant
v.

CONTEST PROCEEDINGS
· Docket No. KENT 2003-85-R
Citation No. 7648459; 5/2112002
Docket No. KENT 2003-86-R
Citation No. 7648560; 5/21/2002

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Docket No. KENT 2003-87-R
Citation No. 7648561; 5/21/2002
Docket No. KENT 2003-88-R
Citation No. 7648562; 5/21/2002
Docket No. KENT 2003-89-R
Citation No. 7648563; 5/21/2002
Docket No. KENT 2003-90-R
Citation No. 7648565; 5/30/2002
Docket No. KENT 2003-91-R
Citation No. 7648566; 5/31/2002
Docket No. KENT 2003-92-R
Citation No. 7648567; 5/31/2002
Docket No. KENT 2003-93-R
Citation No. 7648572; 6/12/2002
Docket No. KENT 2003-94-R
Citation No. 7648685; 7/16/2002
Grand Rivers Terminal
Mine ID 15-18234

1055

ORDER OF DISMISSAL
Before:

Judge Barbour

On November 4, 2002, counsel for the operator, Kinder Morgan Operating, L.P.
("Kinder") filed a notice of contest for ten citations issued in the above captioned cases. In
the notice of contest, Kinder admits the untimely filing, but contends its employees
inadvertently failed to forward the citations to company officials due to the employees'
confusion over MSHA jurisdiction in other cases currently on appeal in the U.S. Court of
Appeals for the 6th Circuit. The Secretary of Labor ("Secretary"), subsequently filed an
answer and Motion to Dismiss, arguing that Commission case law requires the dismissal of
contest proceedings if they are not timely filed.

Although Kinder may have been confused about MSHA jurisdiction, the
Commission has made no exception to the 30 day restriction for "confusion." As the
Secretary correctly asserts, a long line of cases dating back to the Interior Board of Mine
Operation Appeals have held the late filing of notices of contest of citations is not
permissible under the Mine Act and under its predecessor the Federal Coal Mine Health and
Safety Act of 1969. Consolidation Coal Co., 1 MSHC1029 (1972); Old Ben Coal Co., 1
MSHC 1330 (1975); Alexander Brothers, 1 MSHC 1760 (1979); Island Creek Coal Co. v.
Mine Workers, 1FMSHRC989 (Aug. 1979); Amax Chemical Corp., 4 FMSHRC 1161
(June 1982); Industrial Resources, Inc., 7 FMSHRC 416 (Mar. 1985); Allentown Cement
Company, Inc., 8 FMSHRC 1513 (Oct. 1986); Rivco Dredging Corp., 10 FMSHRC 889
(July 1988); Big Horn Calcium, 12 FMSHRC 463 (Mar. 1990); Prestige Coal Co., 13
FMSHRC 93 (Jan. 1991); Costain Coal Inc;., 14 FMSHRC 1388 (Aug. 1992); Diablo Coal
Co., 15 FMSHRC 1605 (Aug. 1993); C and S Coal Co., 16 FMSHRC 633 (Mar. 1994);
Asarco, Inc., 16 FMSHRC 1328 (June 1994); See also, !CI Explosives USA, Inc., 16
FMSHRC 1794 (Aug. 1994).
Accordingly, the Secretary's Motion to Dismiss is GRANTED. Kinder should note,
however, that the fai lure properly to contest a citation does not preclude it from challenging
in a subsequent civil penalty proceeding the violations alleged in the citations.

_])~1(/(~A~

DaviCl Y.~arbour Chief Administrative Law Judge

1056

Distribution:
Charles E. Allen, III, Esq., Frost, Brown, Todd, LLC, 400 West Market St., 3211d Floor,
Louisville, KY 40202
Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard
Jones Road, Suite B-201, Nashville, TN 37215-2862

/fb

1057

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

December 23, 2002
CORD EASLEY,

DISCRIMINATION PROCEEDING
Complainant
Docket No. WEST 2001-133-DM
WEMD00-13

V.

Portable Crusher #1
Mine I.D. 45-03357

MORRILL ASPHALT PAYING,
Respondent

DECISION
Appearances:

Devin Poulson, Esq., Lacy & Kane, East Wenatchee, Washington,
for Complainant;
Lewis L. Ellsworth, Esq., Gordon, Thomas, Honeywell, Malanca,
Peterson & Daheim, Tacoma, Washington, for Respondent.

Before:

Judge Manning

This case is before me on a complaint of discrimination brought by Cord Easley
against Morrill Asphalt Paving ("Morrill") under section 105(c)(3) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §815(c)(3) (the "Mine Act"). Mr. Easley alleges that he
was terminated from his employment with Morrill because he complained about safety
conditions at the crusher. An evidentiary hearing was held in Wenatchee, Washington. The
parties filed post-hearing briefs. For the reasons set forth below, I find that Mr. Easley
established a prima facie case of discrimination but that Morrill established that it would have
terminated Easley for his unprotected activities alone.
I. SUMMARY OF THE EVIDENCE

At all pertinent times, Morrill was in the sand and gravel business. Prior to November
2000, Morrill operated a portable rock crushing plant in the State of Washington. This case
arose as a result of events that occurred between January and May 2000 at the portable
crusher.
Cord Easley starting working for Morrill in July 1999 as a groundsman. He performed
various tasks such as greasing bearings and cleaning up spilled material from under conveyor
·
belts. After he had worked for Morrill for several months, he was transferred to the
1058

maintenance crew. As a maintenance employee at the crusher he welded guards on
equipment, replaced bearings on shafts, and repaired equipment.
In October 1999, the portable crusher was moved from Gold Bar, Washington, to
Maple Valley, Washington. Sometime after the crusher was set up in Maple Valley, Easley
was assigned to work on the evening maintenance shift assisting Mike Fletcher. They were
the only employees working on this shift during which equipment maintenance was
performed. Sometime in January 2000, Fletcher was transferred to the day shift as a plant
operator and Easley remained on the evening shift as the maintenance man.

Because Morrill needed to have more than one person working on the evening shift, it
hired Don Drinkwater to work with Easley. Easley functioned as the chief mechanic on the
evening shift. Easley and Drinkwater reported to work about two hours before the end of the
day shift, so there was an overlap of shifts. Their supervisor was Roger Harting, the plant
superintendent.

In January, Fletcher, Easley, and other employees became concerned that Drinkwater
and Randy Syria were either drinking on the job or drinking before they arrived at work. They
believed that both employees smelled of alcohol. Easley testified that he saw Drinkwater go
to his truck on a number of occasions to get a drink during the evening shift. (Tr. 42). Easley
testified that he could smell alcohol on Drinkwater's breath. Easley also stated that
Drinkwater admitted that he was drinking. (Tr. 43). Easley testified that sometime before
Christmas 1999, when he was working the day shift, he noticed that Syria sometimes smelled
of alcohol. (Tr. 41 ). He would be surly when he had been drinking. Easley was concerned
that these employees could cause an accident or injury.
Easley discussed the drinking issue with Fletcher and John Partridge, another Morrill
employee. Approximately a week after Drinkwater started work, Easley raised the drinking
issue with Mr. Harting. About a week later, Fletcher and Easley became concerned that
Harting was not doing anything to stop employees from being intoxicated at work. Fletcher
had previously developed a relationship with Richard Thody, the safety director for
Goodfellow Brothers, Inc., the parent company of Morrill. Fletcher called Thody on the
telephone to discuss the drinking problem. Fletcher handed the phone to Easley so that Easley
could describe what he knew from events that occurred on his shift. This short conversation
was the only contact that Easley had with Mr. Thody.
Thody raised the drinking issue with upper management. Morrill held a meeting at the
crusher on February 8, 2000, to discuss alcohol abuse. Easley, Fletcher, Syria, Drinkwater,
and all other crusher employees were in attendance. Chris Gibbs, Morrill's shop
superintendent, was also present. Gibbs supervised Morrill's maintenance shop in Wenatchee,
Washington, but he also indirectly supervised maintenance employees at the crusher. At this
meeting, employees were told that anyone who was suspected of consuming alcohol on the job

1059

would be tested and that, ifhe tested positive, he would be immediately terminated from his
employment.
Immediately following this meeting, Harting told Fletcher that he was being laid off
from his job. He was not given much of an explanation except that Morrill did not need two
plant operators at the crusher. When he discussed his lay-off with Thody, Thody told him that
he may have been discriminated against for raising safety issues. Fletcher filed a
discrimination complaint with the State of Washington under the Washington Industrial Safety
and Health Act ("WISHA"). The Washington Department of Labor and Industries ("L&I")
investigated Fletcher's complaint. Fletcher also filed a discrimination complaint with the
Department of Labor's Mine Safety and Health Administration ("MSHA"). After MSHA
determined that he was not discriminated against, Fletcher filed a complaint on his own behalf
under section 105(c)(3) of the Mine Act. Following an evidentiary hearing, I determined that
Morrill discriminated against Fletcher in violation of the Mine Act. Fletcher v. Morrill
Asphalt Paving, 24 FMSHRC 232 (Feb. 2002).
Easley testified that neither Syria nor Drinkwater exhibited any signs of drinking after
the meeting of February 8, 2000. As far as Easley could tell, these employees were no longer
drinking on the job after that date. On May 12, 2000, Easley was interviewed by.an
investigator from L&I about Fletcher's WISHA complaint. An attorney for Morrill was
present during the interview. Easley told the investigator that, although he did not have any
proof that Fletcher was laid off because of his safety complaints, "[t]hat's just what he
figured." (Ex. R-2 p. 7). Easley also told the investigator that Morrill had not retaliated
against him for his involvement in any safety complaints. Id. Easley continued working for
Morrill until May 26, 2000, when he was told that he was being laid off. Easley contends that
he was separated from his employment because he talked to Thody about employees drinking
on the job and, to a lesser extent, because he told the L&I investigator that he "figured" that
Fletcher was laid off because of his safety complaints.
Mr. Harting testified that Easley's termination was not a result of his phone
conversation with Thody about drinking on the job or by his statement to the L&I investigator.
Harting and Gibbs testified that he was terminated because Morrill was dissatisfied with his
skills as a mechanic.* Specifically, they testified that after Easley became the chief mechanic
for the crusher, the crusher was down for repairs more frequently than when Warren Smithers
was the chief mechanic. Morrill attributed this increased down time to Easley' s lack of skill.

• At the hearing, counsel for Easley objected to the testimony of Gibbs because he was not
included in Morrill's list of witnesses provided in response to the notice of hearing. (Tr. 102-05).
Counsel for Morrill responded that the omission was an oversight. The parties did not conduct any
discovery in this case. I allowed ·Gibbs to testify, but I scheduled the lunch break immediately
following his direct examination so that Easley could prepare for cross-examination during the break.
1060

Harting and Gibbs also testified that Morrill's mechanics are required to bring basic
tools for use at the crusher. Because Easley did not bring any tools to the crusher, he had to
borrow Harting's tools. Harting testified that Easley used his tools every day and lost some of
them. Harting testified that he had warned Easley that he must bring his own tools for use at
the crusher if he wanted to continue working for Morrill.
Harting testified that when Easley talked to him about employees being intoxicated at
work, he discussed the matter with Drinkwater. Harting also testified that he could not smell
alcohol on Drinkwater's breath and that Drinkwater denied that he had been drinking. Harting
stated that after he told Gibbs about the incident, the February 8 meeting was set up to discuss
alcohol abuse with crusher employees. Harting also testified that he made arrangements for a
drug and alcohol testing program with the hospital in nearby Enumclaw, Washington, so that
if an employee at the crusher was suspected of substance abuse, he could be sent there for
immediate testing.
Gibbs testified that he made the ultimate decision to terminate Easley. (Tr. 133). He
testified that the "straw that broke the camel's back" with respect to Easley's employment was
an event that occurred a few days before he was terminated. (132). Harting told Gibbs that
Easley failed to properly tie off when he was removing an electric motor from the cone screen.
Jim Lyon, an equipment operator at the crusher, testified that Easley was wearing a safety
harness as he was attempting to remove the motor which weighed more than 100 pounds and
was about 20 feet above the ground. (Tr. 111 ). Lines from a crane were supporting the motor
which would then lower it to the ground once it was detached from the cone screen.
Apparently, Easley had tied off to the motor itselfrather than to the frame of the cone screen
so that he would have gone down with the motor, if someone else had not noticed the mistake.
(Tr. 112). Gibbs testified that this unsafe act was not the direct cause of Easley's dismissal
but is illustrative of his poor work performance and contributed to his decision to terminate
him. (Tr. 132). Gibbs stated that he "structured it as a layoff' so that Easley could collect
unemployment compensation. (Tr. 133). Gibbs testified that Easley was not really laid off for
lack of work, but was terminated because of his poor job performance.

II. SUMMARY OF THE PARTIES' ARGUMENTS
A. Mr. Easley
Easley argues that it clearly established a prima facie case of discrimination. Easley
engaged in a protected activity when he complained about employees being under the
influence of alcohol at work and he suffered an adverse action as a result of these complaints.
Easley contends that MolTill knew that Easley had engaged in these protected activities;
Morrill was hostile to these activities; there was a coincidence in time between the protected
activities and the adverse action; and Easley was disparately treated.

1061

Easley further argues that-Morrill failed to meet its burden of establishing that his
termination was not motivated by his protected activities. . Easley maintains that Morrill did
not provide a credible explanation why it terminated him. Morrill told Easley and the state
employment security department that he was laid off: Easley was never told by Harting or
anyone else that his performance was not acceptable. At the hearing in this case, on the other
hand, Morrill maintained that Easley was terminated because he was responsible for increased
down-time in production at.the crusher. Easley contends that this post hoc rationalization
should not be given any credibility. Easley points to the fact that under Washington law,
unemployment benefits will not be denied for "mere incompetence, inefficiency, erroneous
judgment, or ordinary negligence.,, (Easley Br. 5) (citation omitted). Thus, Morrill would not
have put Easley's unemployment benefits at risk by telling the department of employment
security that he was terminated for not properly maintaining the crusher. The only inference
that can be drawn from Morrill' s actions is that it had no real reason to terminate Easley other
than to retaliate for his protected activities. Merrill's explanation that the crusher was shut
down for repairs more frequently when Easley was the mechanic cannot be verified because
Merrill's records for the crusher are "conveniently missing." Id. Easley points to the fact that
Morrill was aware of his MSHA complaint long before it permanently shut down the crusher
and it could have easily preserved these records. Fletcher and Partridge credibly testified, on
the other hand, that Easley was a good mechanic.
Finally, Easley points to the fact that Morrill has a history of making up reasons for
terminating employees. Its post hoc explanation of why it discharged Easley is simply pretext
seized to cloak its discriminatory motive. The events in this case make sense only if
discriminatory animus is added in as the motivating factor.

B. Morril~ Asphalt
Morrill argues that its evidence demonstrates that Easley's termination was not tainted
by Easley's single complaint that a co-worker smelled of alcohol on the job. It maintains that
the evidence shows that Easley's termination, which occurred three months after his
complaint, was the result ofMorrill's continuing concerns regarding Easley's work
performance. Thus, Morrill contends that it successfully rebutted Easley' s prima facie case.
Morrill contends that Harting discussed Easley's work performance with him in April
2000 and on subsequent occasions. Morrill also relies on evidence that other employees
complained to management about Easley's work performance. Gibb made the decision to
terminate Easley after Easley had failed to secure himself safely when he removed the motor
from the cone screen. Morrill contends that its evidence should be credited.
Morrill also argues that Easley did not present evidence showing that Merrill's stated
reason for terminating Easley was pretextual. Morrill took immediate action to respond to
Easley's complaint that a co-worker smelled of alcohol. Crusher employees were advised that
a drug and alcohol screening program had been established at a nearby medical facility and
.1062

that any employee who tested positive would be terminated. Basley admitted that he did not
smell alcohol on anyone's breath after this program was established. In addition, Easley
admitted in his L&I interview that Morrill did not take any action against him because he
complained about alcohol use at work.
In his attempt to establish discriminatory animus, Easley relies on two statements made
by Harting: Harting's admonition to Easley that he must bring his tools to work and his
comment to Easley that "this back stabbing better stop." (Morrill Br. 7). First, all mechanics
were required to use their own tools at work. In addition, Harting's "back stabbing" remark
should be given little weight because it was an isolated event that occurred several months
before Easley was terminated.

Finally, Easley's contention that he was discharged for talking to the L&I investigator
about Fletcher's complaint in May should not be considered. This charge is contradicted by
Easley's own testimony. Morrill maintains that there is no evidence to support this argument
in any event.

III. DISCUSSION WITH FINDINGS OF FACT AND
CONCLUSIONS OF LAW
Section 105(c) of the Mine Act prohibits discrimination against miners for exercising
any protected right under the Mine Act. The purpose of the protection is to encourage miners
"to play an active part in the enforcement of the [Mine] Act" recognizing that, "if miners are
to be encouraged to be active in matters of safety and health, they must be protected against
any possible discrimination which they might suffer as a result of their participation." S. Rep.
No. 181, 951h Cong., !51 Sess. 35 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2"d Sess., Legislative History ofthe Federal
Mine Safety and Health Act of 1977 at 623 (1978). "Whenever protected activity is in any
manner a contributing factor to the retaliatory conduct, a finding of discrimination should be
made." Id. at 624.
A miner alleging discrimination under the Mine Act establishes a prima facie case of
prohibited discrimination by presenting evidence sufficient to support a conclusion that he
engaged in protected activity and suffered adverse action motivated in any part by that activity.
Secretary of Labor on behalfofPasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797800 (October 1980), rev 'don other grounds, 663 F.2d 1211 (3d Cir. 1981 ); Secretary of
Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April
1981 ); Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998). The mine
operator may rebut the prima facie case by showing either that no protected activity occurred
or that the adverse action was in no part motivated by the protected activity. Pasula, 2
FMSHRC at 2799-800. If the mine operator cannot rebut the primafacie case in this manner,
it nevertheless may defend by proving that it was also motivated by the miner's unprotected
activity and would have taken the adverse action for the unprotected activity alone. Id.;
1063

Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d
639, 642 (41h Cir. 1987).

A. Easley eni:ai:ed in protected activity.
Mr. Easley engaged in protected activity when he complained about alcohol use by his
fellow employees. This complaint was safety related because he feared that these employees
could injure him as they operated heavy equipment. To the extent that he discussed safety
issues, Easley's statements to the L&I investigator were also protected.

B. Easley established that Morrill's decision to dismiss him was motivated, at
least in part, by his protected activity.
In determining whether a mine operator's adverse action was motivated by the miner's
protected activity, the judge must bear in mind that "direct evidence of motivation is rarely
encountered; more typically, the only available evidence is indirect." Secretary ofLabor on
behalfof Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510(November1981), rev'd on
other grounds, 709 F.2d 86 (D.C. Cir 1983). "Intent is subjective and in many cases the
discrimination can be proven only by the use of circumstantial evidence." Id. (citation
omitted). In Chacon, the Commission listed some of the more common circumstantial indicia
of discriminatory intent: (1) knowledge of the protected activity; (2) hostility or animus
towards the prote.cted activity; (3) coincidence in time between the protected activity and the
adverse action; and (4) disparate treatment of the complainant. See also Hicks v. Cobra
Mining, Inc., 13 FMSHRC 523, 530 (April 1991).
There can be no dispute that Harting was aware ofEasley's complaints about Syria and
Drinkwater. Harting was also aware that Easley was interviewed by an L&I investigator on
May 12, 2000, although he did not know what Easley said during this interview. Because
counsel for Morrill was present at the interview, I conclude that Morrill was aware that Easley
told the investigator that he "figured" that Fletcher was fired for making safety complaints.
Easley's discrimination complaint in this case includes references to this interview so it is
withjn the scope of my jurisdiction.
In Fletcher, I found that Morrill had demonstrated animus toward Fletcher's protected
activities. 24 FMSHRC at 239-40. I specifically determined that "[c ]ircumstantial evidence
shows thatHarting did not welcome the safety activities of Thody and Fletcher." Id. I
concluded that Fletcher was terminated from his employment because of his safety activities.
Easley's safety activities were much more limited, however. He raised concerns with Thody
about employees drinking during a phone call in January 2000, after he had discussed the issue
with Harting. Fletcher had initiated this call and Easley spoke only briefly about what he had
observed during the evening shift. Unlike Fletcher, Easley did not have a prior history of
reporting safety deficiencies and he did not have an ongoing relationship with Thody. The
only safety complaint that Easley ever made was about drinking in January 2002.

1064

I believe that Easley established that Morrill was hostile toward employees who
reported safety problems to Mr. Thody. No animus was established with respect to employees
discussing safety issues with Harting but, based on my findings in Fletcher, I find that Morrill
was hostile toward employees who reported safety problems to Thody. Easley's contact with
Thody was quite limited.
Easley established a coincidence in time between Easley's safety complaints and his
layoff. The four month gap between his safety complaint and the adverse action is not
significant in this instance. In reaching this conclusion, I also take into consideration Easley's
testimony before the L&I investigator on May 12.
I also find that Easley submitted evidence that he was treated differently from other
similarly situated employees. Although Morrill did not have a very extensive history of
layoffs and dismissals, the fact that both Fletcher and Easley were singled out for termination
establishes a prima facie case of disparate treatment in this instance. Although other
employees complained about Syria and Drinkwater, including Partridge, only Fletcher and
Easley discussed the issue with Thody.
I find that Easley established a prima facie case of discrimination. The circumstantial
evidence establishes that the termination of Easley may well have been motivated at least in
part by his safety activities. The motivation behind a termination is subjective and direct
evidence is rarely encountered. I note, however, that Easley's prima facie case is not nearly as
strong as the case established by Mr. Fletcher in his discrimination case.

C. Morrill established that it would have terminated Easley for his unprotected
activities alone.
As stated above, Morrill presented evidence that Easley was terminated because his
supervisors had become dissatisfied with his work as a mechanic. In addition, Harting
previously warned Easley that he was required to bring his own tools to work for use on the
crusher. Finally, Morrill argues that the incident in which Easley failed to properly tie off
when he was working 20 feet above the ground also contributed to the company's decision to
terminate him. Morrill maintains that it told Easley that he was being laid off so that he could
be paid unemployment compensation benefits. I credit the testimony ofMorrill's witnesses
that Easley was not laid off but was terminated for cause.
I credit the testimony of Harting and Gibbs that Morrill was in the process of taking
steps to address the drinking problem following the complaints made by Fletcher, Easley, and
Partridge. Harting did not immediately discuss the matter with Easley because, when he
approached Drinkwater after Easley's complaint, he could not detect any evidence that
Drinkwater had been drinking. Harting did not want to make false accusations or create
discord among the crusher employees. Gibbs believed that he could not take action against
Drinkwater or Syria because he did not have objective proof that they had been drinking and

1065

they denied that they had been drinking. (Tr. 152-53). As a consequence, Morrill set up a
program to test employees who are suspected of drinking rather than further investigating
these particular incidents.
Given the series of events that occurred at the crusher, including the termination of
Fletcher, I find that Morrill did not affirmatively establish that the termination was not
motivated in any part by the protected activity. Harting's statement to Easley that "this back
stabbing better stop," indicates that he was hostile to an employee going over his head to
discuss safety issues with someone in the corporate office, such as Thody. (Tr. 46, 80, 175).

If a mine operator cannot establish that the protected activity played no part in its
decision to terminate the complainant, it may nevertheless defend by proving that (1) it was
also motivated by the miner's unprotected activities, and (2) that it would have taken the
adverse action in any event for the unprotected activities alone. I must analyze whether
Morrill would have terminated Easley if he had not engaged in any protected activity.
I must carefully analyze the reasons given by Morrill for the adverse action to
determine whether such reasons are simply a pretext. In Chacon, the Commission explained
the proper criteria for analyzing an operator's business justification for an adverse action:
Commission judges must often analyze the merits of an
operator's alleged business justification for the challenged
adverse action. In appropriate cases, they may conclude that the
justification is so weak, so implausible, or so out of line with
normal practice that it was mere pretext seized upon to cloak the
discriminatory motive.
The Commission and its judges have neither the
statutory charter not the specialized expertise to sit as a super
grievance or arbitration board meting out industrial equity.
Once it appears that a proffered business justification is not
plainly incredible or implausible, a finding of pretext is
inappropriate. We and our judges should not substitute for the
operator's business judgement our views on "good" business
practice or on whether a particular adverse action was "just" or
"wise." The proper focus, pursuant to Pasula, is on whether a
credible justification figured into the motivation and, if it did,
whether it would have Jed to the adverse action apart from the
miner's protected activities. If a proffered justification survives
pretext analysis ... , then a limited examination of its
substantiality becomes appropriate. The question, however, is
not whether such a justification comports with a judge's or our
sense of fairness or enlightened business practice. Rather the
1066

narrow statutory question is whether the reason was enough to
have legitimately moved that operator to have disciplined the
mmer.
Chacon, at 3 FMSHRC 2516-17 (citations omitted). The Commission further explained its
analysis as follows:
(T]he reference in Chacon to a "limited" and "restrained"
examination of an operator's business justification defense does
not mean that such defenses should be examined superficially or
be approved automatically once offered. Rather, we intended
that a judge, in carefully analyzing such defenses, should not
substitute his business judgment or a sense of "industrial
justice" for that of the operator. As we recently explained, "Our
function is not to pass the wisdom or fairness of such asserted
business justifications, but rather only to determine whether they
are credible and, if so, whether they would have motivated the
particular operator as claimed."
Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982) (citations omitted).
I find that Morrill 's justification for dismissing Easley is credible and that Morrill
would have taken this action even if Easley had not engaged in any protected activity. Both
Harting and Gibbs believed that Easley was not competently maintaining the crusher. Lyon
testified that Easley was not properly maintaining and repairing the crusher and he discussed
Easley's poor work with Harting on several occasions. (Tr. 109-10). Lyon was especially
critical of Easley's performance at welding. Lyon also believed that the crusher had to be shut
down for repairs more frequently after Easley became the head mechanic. I agree with Easley
that the disappearance of records that would have established whether the crusher had to be
shut down more frequently may be viewed with suspicion. Nevertheless, the fact that Morrill
permanently shut down and sold the crusher provides a rational explanation.
Morrill' s concerns about Easley' s workmanship is corroborated by the evidence.
Whether Easley was, in fact, not a good mechanic is not nearly as important as whether
Morrill management believed that he was not. I find that Harting and Gibbs genuinely
believed that Easley was not maintaining the crusher as well as a head mechanic should have
been. Once Easley became chief mechanic, Gibbs received phone calls "virtually daily"
reporting that the crusher was down for repairs. {Tr. 125). Gibbs testified that he sent Roger
Dagget, a mechanic at the Wenatchee shop, to the crusher in Maple Valley on a regular basis
because he was concerned about Easley's ability to maintain the crusher. Gibbs testified that
Dagget told him that he was "very unimpressed with
Mr. Easley's performance." (Tr. 157). Gibbs developed a maintenance check list for Easley
to use specifically because of his concerns that Easley was not performing all of the required
1067

maintenance and was not reporting aJl of the work that needed to be done. (Tr. 129). Gibbs
testified that the checklist was not properly completed much of the time with the result that he
could not determine whether the maintenance was being properly performed. Unknown to
Gibbs, Easley gave the checklists to Drinkwater to fill out. (Tr. 181 ). This fact tends to
confirm Gibbs's concerns that Easley was not performing his work in a professional manner
because he was not taking personal responsibility to keep Morrill management informed about
the condition of the crusher through the maintenance check list.
Harting discussed his work performance concerns with Easley in April. For example,
Harting reported that on April 19, 2000, Easley left the crusher packed with mud with the
result that the production crew had to delay starting the crusher until they could clean it out.
(Tr. 166; Ex. R- 3). Harting testified that he warned Easley on a number of occasions that he
needed to improve his performance, but that he "tried not to overdo it." (Tr. 167). Harting
testified: "I tried to promote, well, you're doing a good job more than bad, because I'd like to
get him to try a little harder and do a little better." Id. I credit the testimony of Harting that he
attempted to counsel Easley rather than bark at him. Easley denies that these conversations
ever took place, but I believe that he simply did not understand what Harting was trying to
communicate. I do not credit Easley's testimony on rebuttal that he was never advised that he
had to improve his job performance. (Tr. 182-84).
Morrill required each mechanic to bring and use his own tools at the crusher. Morrill
supplied specialty tools. Easley consistently failed to provide his own tools. All the other
mechanics used their own tools, including Drinkwater. (Tr. 170). Harting believed that
Easley owned a set of tools but that he did not want to use them. (Tr. 164). Harting testified
that Easley was the only mechanic who consistently borrowed his tools and he believes that he
lost a number of them. Id. Harting advised Easley that he must furnish his own tools several
times before Easley complained about alcohol abuse. Id. Easley's refusal to bring in tools to
use on the job contributed to Morrill's decision to terminate him. I do not credit Easley's
rebuttal testimony on this issue. (Tr. 180-81).
The events of May provided the immediate impetus for Easley's dismissal. As stated
above, Easley did not properly tie off when he was attempting to remove a motor from the
cone screen. Although this event was not the reason for his discharge, it was a contributing
factor and it led Gibbs to the conclusion that he was not an effective mechanic and should be
let go. Gibbs made the decision to terminate Easley. At that time, he was not aware that
Easley had been interviewed by the L&I investigator. (Tr. 133, 139). I reject any claim that
Easley's friendship with Fletcher contributed to his discharge.
I find that Gibbs terminated Easley based on his perception that Easley's work
performance and job skills were not acceptable for the job. Gibbs would have taken this
action if Easley had not engaged in any protected activity. The fact that Gibbs labeled the
termination as a layoff does not alter my findings. Gibbs did not have any "malice towards
Mr. Easley'' so he wanted to make sure that he would be entitled to unemployment
1068

compensation. (Tr. 133). He rarely terminated anyone and was not knowledgeable of the
requirements for obtaining unemployment compensation.

IV. ORDER
For the reasons set forth above, the complaint filed by Cord Easley against Morrill
Asphalt Paving under section 105(c) of the Mine Act is DISMISSED.

Distribution:
Devin Poulson, Esq., Lacy & Kane, P.O. Box 7132, East Wenatchee, WA 98802-0132
(Certified Mail)
Lewis L. Ellsworth, Esq., Gordon, Thomas, Honeywell, P.O. Box 1157, Tacoma, WA 984011157 (Certified Mail)
RWM

1069

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001
Telephone No.: (202) 434-9958
Telecopier No.: (202) 434-9949

December 24, 2002

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 2002-242-M
A.C. No. 41-03882-05515

V.

Mine: Arnold Crushed Stone
ARNOLD CRUSHED STONE,
INCORPORATED,
Respondent

ORDER DENYING MOTION TO REOPEN PENALTY ASSESSMENT
ORDER TO PAY
ORDER OF DISMISSAL
Before:

Chief Judge Barbour

On July 18, 2002, I issued an order to Arnold Crushed Stone, Inc. ("Arnold"), to submit
more information as to why it failed to timely fil e a notice of contest in the above captioned case.
Arnold was required to file the information within 20 days of the date of that order. When I
received no response, on October 24, 2002, I issued an Order to Respondent to Show Cause, in
which I required Arnold to either file the required information or show cause for its failure to do
so within 20 days of the date of that order. Finally, on December 12, 2002, I issued a Second
Order to Respondent to Show Cause, in which I required Arnold to file a response within 15 days
of the date of that order. The record includes return receipts indicating Arnold received all three
orders.
Subsequently, on December 19, 2002, Arnold faxed three letters to the Commission,
which include explanations of why it seeks to contest the citations. However, the letters fai l to
address the issue of why the company did not timely file a notice of contest despite the fact that
all three orders required the company to do so. Therefore, I conclude that Arnold has failed to
establish adequate cause to reopen the penalty assessment.

1070

Accordingly, the request to reopen the proposed penalty assessment is DENIED, and
Arnold is ORDERED TO PAY the proposed penalty assessment of$3,412.00 within 30 days of
the date of this order.
This case is DISMISSED.

-Dw/·c1f g_ /

David F. Barb~~
Chief Administrative Law Judge

Distribution: (Certified Mail)
W. Christian Schumann, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Boulevard, 22"d Floor, Arlington, VA 22209-2247
Mike Arnold, President, Arnold Crushed Stone, P.O. Box 632, Blum, TX 76627

/mvc

1071

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, DC 20001

December 31, 2002

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATlON (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2002-61
A.C. No. 33-01159-04192

v.

THE OHIO VALLEY COAL COMPANY,
Respondent

Powhatan No. 6 Mine

DECISION
Appearances: Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago,
Illinois, for Petitioner;
Michael 0. McKown, Esq., General Counsel, The Ohio Valley Coal Company,
Pepper Pike, Ohio, for Respondent.
Before:

Judge Hodgdon

This case is before me on a Petition for Assessment of Civil Penalty brought by the
Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA), against
The Ohio Valley Coal Company, pursuant to section 105 of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 815. The petition alleges two violations of the Secretary's mandatory
health and safety standards and seeks a penalty of $50,000.00. A hearing was held in Wheeling,
West Virginia. For the reasons set forth below, I vacate one citation, affirm the other as modified
and assess a penalty of $5,000.00.

Backeround
The parties stipulated to the facts in this case. (Jt. Ex. 1.) They are set out below in
narrative fashion.
The Ohio Valley Coal Co. owns and operates the Powhatan No. 6 underground coal mine
in Belmont County, Ohio. The Ohio Valley Resources, Inc., a subsidiary of Murray Energy
Corporation, is the parent company of The Ohio Valley Coal Co.
At about 5:15 p.m. on April 19, 2001, the pre-shift examiners examining the 2nd Main
North belt heard a flapping noise somewhere around the stationary take-up roller at break 62.
The plastic mesh guarding the belt drive and take-up unit was in place and they were unable to
1072

detennine the cause of the flapping noise. The examiners did not report the noise in the pre-shift
examiners book.
Later that evening, at about 8:30 p.m., Randy Brunner and Dennis Miller, two belt
repairmen, parked their jeep at break 61 so that they could repair the 1st Main North belt wings,
located near break 60. During the repairs, Brunner returned to the jeep to get some parts. While
there he observed a jeep park at break 62. He could tell by the cap light that there was only one
person, but was unable to identify who it was. As they were finishing the job, the repairmen
could see a cap light at the 2nd Main North belt drive take-up unit, about 180 to 200 feet away.
°The 1st Main North belt was not shut down during the 15 minutes while the repairs were
performed.
Approximately one minute after completing the job and returning to their jeep, the
repairmen heard a voice calling for help. Looking toward the spur switch, they saw the
unidentified miner running and staggering along the track and then falling to the mine floor.
They ran to the miner and discovered that it was Thomas Ciszewski, the belt foreman. Ciszewski
was missing his left arm and had facial cuts.
While Ciszewski was being tended to underground, Miller went to the accident site to try
to find the arm. It was lying outside of the guarding in the walkway on the return side of the 2nd
Main North belt conveyor, adjacent to the take-up cart. Miller took the arm back to where
Ciszewski was. Ciszewski was carried to the surface where he was pronounced dead at 9:00
p.m.
MSHA was notified of the accident at 9:20 p.m. An initial response team arrived at the
mine at 10:15 p.m. A 103(k) order, 1 30 U.S.C. § 813(k), was issued, preliminary information
was collected, an investigation was begun and photographs, measurements and drawings of the
accident scene were collected. The team found that the two guard panels adjacent to the take-up
unit on the return side had been removed from their top hangers at one end and were hanging
down on the mine floor, creating a two inch gap at the top and a six inch gap at the bottom
between the panels. In this condition, the panels could be swung inward or outward. There was
approximately 26 inches of space between the guarding and the moving belt, which normally

1

Section 103(k) provides that:
In the event of any accident occurring in a coal or other
mine, an authorized representative of the Secretary, when present,
may issue such orders as he deems appropriate to insure the safety
of any person in the coal or other mine, and the operator of such
mine shall obtain the approval of such representative, in
consultation with appropriate State representatives, when feasible,
of any plan to recover any person in such mine or to recover the
coal or other mine or return affected areas of such mine to nonnal.

1073

operates at 700 feet per minute (about 8 mph). A steel jack handle, measuring l x 24 inches, was
found partially inside the guarded area and partially in the walkway.
An MSHA Accident Investigation team, as well as investigators from Ohio, arrived at the
mine on April 20, to continue the investigation and conduct interviews. The investigators
determined that a grease hose, which had gotten wrapped around the shaft of the stationary takeup roller on the track side of the belt, was making the flapping noise heard by the pre-shift
examiners. They concluded that the accident had occurred when Ciszewski's left arm contacted
and was caught in the pinch point between the moving belt and the stationary roller of the belt
take-up unit.
As a result of the investigation, two citations were issued to the company. Citation No.
7088894 alleges a violation of section 75. l 722(a) of the Secretary's mandatory health and safety
standards, 30 C.F.R. § 75. l 722(a), because the guarding on the belt drive had been removed from
the hangers, allowing access to the belt and roller.2 (Jt. Ex. B.) Citation No. 7089484 charges a
violation of section 75.1725(c), 30 C.F.R. § 75.1725(c), in that:
Based on evidence revealed during the accident
investigation, Thomas M. Ciszewski failed to comply with the
cited regulation, when he attempted to repair or perform
maintenance on the belt take-up unit, while the belt and take-up
unit were still in operation and not blocked against motion.
Thomas M. Ciszewski, foreman, was fatally injured on April 19,
2001, while conducting assigned duties on the 2nd Main North belt
conveyor. While attempting to assess or repair a noise problem on
the return walkway side of the belt take-up roller, Mr. Ciszewski
had displaced two guarding panels installed on hangers around the
belt take-up unit so that he could position himself within the
confines of the guarding. Evidence indicates that his left arm was
detached from his body at the shoulder, when he became caught in
the pinch point between the moving belt and the take-up stationary
roller causing his death shortly thereafter. 3
(Jt. Ex. C.)

2

This citation originally alleged a violation of section 75.1722(c), 30 C.F.R.
§ 75. l 722(c), but was modified on June 28, 2001, to cite section 75. l 722(a) and to raise the level
of negligence from "low" to "moderate."
3

This citation was originally issued as a 104(d)(l) order, 30 U.S.C. § 814(d)(l), but was
modified on June 28, 2001, to a 104(a) citation, 30 U.S.C. § 814(a), as well as to substitute a new
narrative description of the violation and to lower the level of negligence from "high" to
"moderate."
1074

Findini:s of Fact and Conclusions of Law
The company concedes that the guarding violation occurred. (Tr. 194.) With regard to
the second citation, however, Ohio Valley claims that the Secretary has failed to prove that it
violated the regulation. The Secretary maintains that the Respondent violated both regulations.
However, the Secretary's position, with regard to the second citation, is not supported by a
preponderance of the evidence.
Citation No. 7088894
This citation alleges a violation of section 75. l 722(a), which requires that: "Gears;
sprockets; chains; drive, head, tail, and tak.eup pulleys; flywheels; couplings, shafts; sawblades;
fan inlets; and similar exposed moving machine parts which may be contacted by persons, and
which may cause injury to persons shall be guarded." The evidence that the guards, which were
in place during the pre-shift examination, were found, immediately subsequent to Ciszewski's
accident, to have been removed from their hangers so they could be swung open, clearly supports
the operator's concession that this regulation was violated.

Significant and Substantial
The Inspector found this violation to be "significant and substantial." A "significant and
substantial" (S&S) violation is described in Section 104(d)(l) of the Act, 30 U.S.C. § 814(d)(l),
as a violation "of such nature as could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard." A violation is properly designated S&S
"if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a reasonably serious nature."
Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the Commission set out four criteria
that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v. FMSHRC, 52
F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir.
1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies
criteria). Evaluation of the criteria is made in terms of "continued normal mining operations."
U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a
particular violation is significant and substantial must be based on the particular facts
surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 2007 (December 1987).
In order to prove that a violation is S&S, the Secretary must establish: (1) the underlying
violation of a safety standard; (2) a distinct safety hazard, a measure of danger to safety,
contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury will be of a reasonably serious
nature. Mathies, 6 FMSHRC at 3-4.
1075

Turning to these criteria, I make the following findings: (1) there was a violation of a
safety standard, section 75. l 722(a); (2) removing the guarding from the pinch points of an
operating belt contributed to the danger of being caught in a pinch point; (3) there was a
reasonable likelihood that a miner would be caught in a pinch point which was not guarded,
while the belt was running, and suffer an injury; and (4) there was a reasonable likelihood that
such an injury would be reasonably serious in nature. Manifestly, the removal of the guarding
was a significant contributing cause to the fatal accident, making it "significant and substantial."
Walker Stone Co., Inc., 19 FMSHRC 48, 53 (January 1997). Accordingly, I so conclude.
Citation No. 7089484
This citation charges a violation of section 7 5 .1725(c), which provides that: "Repairs or
maintenance shall not be performed on machinery until the power is off and the machinery is
blocked against motion, except where machinery motion is necessary to make adjustments." The
company argues that Ciszewski was performing neither repair nor maintenance, rather he was
performing an inspection, and that, therefore, section 75. l 725(c) is not applicable to what
happened. (Tr. 192-93.) It is the Secretary's position that assessing what repair or maintenance
is required is included within the scope of the regulation. (Jt. Ex. C, Tr. 99-105.)
No one knows exactly what Ciszewski did or why he did it. It appears unlikely, however,
that he was trying to repair the flapping noise by reaching in to remove the grease hose.
Corporate Safety Director Jerry Taylor testified that:
I don't believe there's no way that Mr. Ciszewski was reaching in
to pull out that grease hose. He couldn't even see it vibrate or
going around. I was there when we started the belt back up after
the fatality, before the grease hose was removed. You could hear
the noise, but you couldn't see the grease hose. That belt is
running at 700 feet a minute and knowing Tom and the size of that
belt, it's 54 inches wide with like one-inch thick rubber.
There's no way that Tom Ciszewski would reach in there to
try to pull that hose out. How he got entangled in the belt, sir, I
have no idea, but I cannot for the life of me believe that he is with all the common sense and the experience that that individual
has that he would reach in there to try to grab a hold of something
that he couldn't see that was making noise. It just - there's no
logic to that at all to me.
(Tr. 155-56.) MSHA Inspector Charles Thomas, who was in charge of the investigation of the
accident, agreed Ciszewski was probably not trying to grab the grease hose because: "I think with
a man with that much experience and worked around belts, and there's probably been some near
misses in his career, that it would be a foolish thing to do to grab that grease hose." (Tr. 106.)
1076

Since the evidence does not indicate that Ciszewski was trying to repair the belt, then he
must have been assessing the situation to determine what repairs were needed. Consequently,
whether his failure to turn off the power and block the belt against motion, when performing that
function, was a violation, depends on whether merely assessing the problem is included in
"repairs or maintenance." The Commission has held that when "the language of a regulatory
provision is clear, the terms of the provision must be enforced as they are written unless the
regulator clearly intended the words to have a different meaning. See, e.g. Utah Power & Light
Co., 11 FMSHRC 1926, 1930 (October 1989) (citing Chevron US.A. , Inc. v. Natural Resources
Defense Counsel, Inc. , 467 U.S. 837, 842-43 (1984))." Walker Stone, 19 FMSHRC at 51.
The Commission has defined the words "repair" and "maintenance," in a similarly
worded regulation,4 as follows:
The term "repair" means "to restore by replacing a part or putting
together what is tom or broken: fix, mend ... to restore to a sound
or healthy state: renew, revivify .... " Webster's Third New
International Dictionary, Unabridged 1923 (1986). The term
"maintenance" has been defined as "the labor of keeping
something (as buildings or equipment) in a state ofrepair or
efficiency: care, upkeep ... " and "(p]roper care, repair and keeping
in good order." Id. at 1362; A Dictionary ofMining, Mineral, and
Related Terms 675 (1968).
Id. In addition to these definitions, "perform" is defined as "to carry out or bring about:
accomplish, execute . ... " Webster's Third New International Dictionary 1678 (1993).

Reading these definitions together, it is evident that the regulation means that fixing,
mending or keeping machinery in a state of repair shall not be carried out until the power is off
and the machinery blocked against motion. Plainly, it connotes action and deals with the
physical acts of fixing, mending or keeping in a state ofrepair. It follows that it does not include
assessing what repair or maintenance is needed. Accordingly, I find that the regulation is plain
and unambiguous on its face and that it does not apply to this situation.
This is not to say that Inspector Thomas was incorrect in saying that the proper way for
Ciszewski to have investigated the flapping noise was to first shut down the belt line, only that
Ciszewski's failure to do so was not a violation of this regulation. Therefore, the citation wil1 be
vacated.

4

Section 56.14105, 30 C.F.R. § 56.14105, states: "Repairs or maintenance of machinery
or equipment shall be performed only after the power is off, and the machinery or equipment
blocked against hazardous motion."
1077

Civil Penalty Assessment
The Secretary has proposed a penalty of $15,000.00 for the violation in Citation No.
7088894. However, it is the judge's independent responsibility to determine the appropriate
amount of penalty in accordance with the six penalty criteria set out in section 11 O(i) of the Act,
30 U.S.C. § 820(i). Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984);
Wallace Brothers, Inc., 18 FMSHRC 481, 483-84 (April 1996).
In connection with these criteria, the parties have stipulated that the Powhatan No. 6 mine
extracted 4,619,247 tons of coal from February 1, 2001, to February 1, 2002, which makes it a
large mine, and that Murray Energy extracted 17,647, 608 tons of coal during the same period,
which makes it a large operator. They have also stipulated that payment of the proposed penalty
will not affect the Respondent's ability to remain in business. In addition, I find that the
company demonstrated good faith in abating the violation in a timely manner.
The parties have also stipulated that the company had 848 violations in the two years
preceding the violation. Inspector Thomas testified that the operator had a higher than average
history of violations. (Tr. 84.) Based on his testimony and the Assessed Violation History
Report, (Govt. Ex. l ), I find that Ohio Valley has a worse than average history of violations.
I find the gravity of this violation to be very serious. No more need be said than that a
death occurred.
Inspector Thomas determined that this violation was a result of "moderate" negligence on
the part of the company. The company argues that Ciszewski's negligence should not be
imputed to it based on the so-called Nacco defense. The Commission has summarized the
imputation of negligence and the Nacco defense as follows:
It is well established that the negligent actions of an
operator's foremen, supervisors, and managers may be imputed to
the operator in determining the amount of a civil penalty. See, e.g.,
Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-64 (August
1982). In Nacco Mining Co., 3 FMSHRC 848 (April 1981), the
Commission recognized a narrow and limited exception to this
principle. The Commission held that the negligent misconduct of a
supervisor will not be imputed to an operator if: (1) the operator
has taken reasonable steps to avoid the particular class of accident
involved in the violation; and (2) the supervisor's erring conduct
was unforeseeable and exposed only himself to risk. 3 FMSHRC
at 850. The Commission emphasized, however, that even a
supervisory agent's unexpected, unpredictable misconduct may
result in a negligence finding where his lack of care exposed others
to risk or harm or the operator was otherwise blameworthy in hire,

1078

training, general safety procedures, or the accident or dangerous
condition in question. 3 FMSHRC at 851.

Wilmot Mining Co., 9 FMSHRC 684, 687 (April 1987).
Here the second part of the test is clearly met. Ciszewski's conduct was unforeseeable
and he exposed only himself to risk.
Attempting to show that the operator had not taken reasonable steps to avoid this
particular class of accident, the Secretary offered the testimony of Randy Brunner, a rank-and-file
miner. He claimed that other than his fellow belt repairman, Dennis Miller, no one trained him
to do belt repair. (Tr. 27-28.) When asked if he had ever done belt repair work without shutting
the belt down, he replied: "Yeah, we've dropped hot rollers out. I have. And other minor stuff
on it. We just shut the switches off to cut flappers off and drop rollers to the remote switches.
We never tagged them out and locked them out, I never have." (Tr. 29.) He also testified that he
had removed a guard from a belt to "look at splices" while the belt was running. (Tr. 30.)
When asked if there were safety procedures the belt repairmen were supposed to follow,
Brunner said: "If it was splices and stuff like that, they're supposed to lock them out. You're
supposed to have your own lock. They always had one boss or somebody go lock them out, you
know." (Tr. 32-33.) He later stated that he guessed there were safety procedures, but he was not
aware of them. (Tr. 39) When asked if anyone had ever discussed safety procedures with him,
he stated: "No, not to me. Not that I know of. I mean, I'm not saying they didn't because I'm
not 100 percent sure." (Tr. 39.) Finally, he admitted that he had received new miner training and
annual refresher training. (Tr. 40.)
To rebut this evidence, the company offered the testimony of Jerry Taylor and Roy
Heidelbach, mine superintendent. Taylor described the training offered at the mine as follows:
In their initial training when they're brought on board,
they're explained all the hazards of working around conveyor belts,
around the drives and so on, and about maintaining the guards in
place and that the guards have to be - the belt has to be deenergized before the guards can be removed. They're explained all
the things, the remote switches, how they can turn the belts off and
on temporarily. And that they're not to rely on remote switches as
a means, excuse me, to de-energize the belt. We want them to go
to the breaker and de-energize it.
They're explained the procedures for removing structures
on the longwall, if they work on the lo[n]gwall tailpiece. It has a
different set of guidelines than the other ones do. And also not
only on belts, they're also given the procedures on de-energizing
1079

any type of equipment before they work on it doing repairs and
maintenance to the equipment.
{Tr. 134-35.) He also testified that safety meetings were held "biweekly, sometimes more often"
y the mine safety director or a foreman. {Tr. 136.) Finally, he testified that "awareness
meetings" were periodically held for the entire workforce on a shift and that safety was covered
at those meetings. (Tr. 137.).
Heidelbach testified concerning training that:
Well, there's a wide variety of subjects that are covered.
There are several different types of training. There's annual
retraining, which all employees have eight hours annually. There's
also task training, which involves any time an employee is working
on a new task, the supervisor or an experienced employee in that
task may train him as to the hazards and the things to look for on
the job. And we also have regular safety meetings that also discuss
hazards and the proper work procedures.
(Tr. 165.) He also testified that miners had been disciplined for failing to follow safety
procedures. (Tr. 166-67.)
I find that the operator was neither blameworthy in its hiring, training, and general safety
procedures, nor was it answerable with regards to the accident or dangerous condition in
question. Ciszewski had close to 20 years experience in underground coal mines and was a very
experienced belt foreman. (Tr. 161.) There was no reason for the company to expect him to
remove the guarding while the belt was running and place himself in a position where he could
fall into the pinch point. 5 Further, the testimony of Taylor and Heidelbach is entitled to more
weight concerning the general safety procedures at the mine, than the inconsistent testimony of a
single rank-and-file miner, who was not "100 percent sure."6 Finally, while the company has a
worse than average history of violations, it does not appear that they had an inordinate amount of
guarding violations.
Consequently, I find that Ciszeski's conduct in removing the guarding was unforeseeable
and only he was exposed to risk and that the operator had taken reasonable steps to avoid the type
of accident involved in the violation. The citation will be modified to show that the operator was
not negligent in the commission of this violation.

5

I find from the evidence that this is the most likely explanation of what happened.

6

The Secretary subpoenaed another miner, Dennis Miller, who was present at the
hearing, but elected not to call him.
1080

Taking all of the penalty criteria into consideration, I conclude that a $5,000.00 penalty is
appropriate for Citation No. 7088894.
Order

Accordingly, Citation No. 7089484 is VACATED and Citation No.7088894 is
MODIFIED by reducing the level of negligence from "moderate" to "none" and is AFFIRMED
as modified. The Ohio Valley Coal Company is ORDERED TO PAY a civil penalty of
$5,000.00 within 30 days of the date of this decision.

~~~

Administrative Law Judge

Distribution: (Certified Mail)
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St., 81h
Floor, Chicago, IL 60604
Michael 0. McKown, Esq., General Counsel, The Ohio Valley Coal Company, 29325 Chagrin
Blvd., Suite 300, Pepper Pike, OH 44122

/hs

1081

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Federal Mine Safety & Health Review Commission
Calendar Year 2002 Index
This index of decisions and orders issued during the calendar year 2002 is divided into two
parts: decisions and orders issued by the Commission, followed by those issued by the
Administrative Law Judges (ALJ's). The listings include titles, docket numbers, date of
issuance, and page numbers in the Federal Mine Safety and Health Review Commission
Decisions Bluebook (FMSHRC), volume 24. Where the Secretary of Labor, Mine Safety and
Health Administration is a party, listings are under the name of the opposing party.

Commission Decisions and Orders
Case Name

Docket Number

Date

Page
Number
FMSHRC,
Vol. 24

American Coal Co.

LAKE 2000-111-R

06-26-2002

Pg.542

Applegate Shale

WEST 2002-367-M

05-21-2002

Pg. 495

Arnold Crushed Stone

CENT 2002-242-M

07-10-2002

Pg.635

Asarco, In c.

WEST 2002-199-M

03-20-2002

Pg. 257

Aurora Materials, Inc.

CENT 2002-223-M

07-10-2002

Pg.631

B & B Crushing

WEST 2002-109-M

05-10-2002

Pg. 453

Cactus Canyon Quarries of Texas,
Inc.

CENT 2001-379-M

03-28-2002

Pg. 262

Cactus Canyon Quarries of Texas,
Inc.

CENT 2001 -363-M

03-28-2002

Pg.266

Cascade Sand & Gravel, Inc.

WEST 2002-20-M

10-17-2002

Pg. 12

Catenary Coal Co.

WEY A 2002-47

04-30-2002

Pg.334

CDG Materials, Inc.

WEST 2002-404-M

07-10-2002

Pg.642

CDG Materials, Inc.

WEST 2002-299-M

05-07-2002

Pg.419

1

Case Name

Docket Number

Date

Page
Number
FMSHRC,
Vol. 24

Cholla Ready Mix, Inc.

WEST 2002-276-M

05-07-2002

Pg.432

Cranesville Aggregates Co.

YORK 2002-52-M

07-22-2002

Pg.645

Disciplinary Proceeding

D 2000-1

01-31-2002

Pg.28

Disciplinary Proceeding

D 2001-1

05-14-2002

Pg. 465

Douglas R. Rushford Trucking

YORK 1999-39-M

07-22-2002

Pg.648

Freeman United Coal Co.

LAKE 2000-102-R

06-24-2002

Pg. 613

Garcia (Sec'y of Labor on behalf
of) v. Colorado Lava, Inc.

WEST 2001-14-DM

04-30-2002

Pg.350

Harrison v. Sidco Minerals

CENT 2000-88-DM

05-10-2002

Pg.461

Harvey v. Mingo Logan Coal Co.

WEVA 2001-38-D

07-26-2002

Pg.699

Highlands Mining & Processing
Co.

KENT 2002-110

07-24-2002

Pg. 685

Hocker Construction

WEST 2002-259-M

05-16-2002

Pg.488

Holnam Texas Ltd.

CENT 2002-74-M

05-07-2002

Pg.436

J . P. Donmoyer, Inc.

PENN 2002-164-M

07-23-2002

Pg.665

John Richards Construction

WEST 2000-168-M

07-23-2002

Pg.655

Kerr Enterprises, Inc.

CENT 2002-24-M

01-04-2002

Pg. 1

Kilauea Crusher, Inc.

WEST 2002-58-M

04-30-2002

Pg.342

Leeco, Inc.

KENT 2002-38

04-30-2002

Pg.338

Lodestar Energy, Inc.

KENT 2000-79

07-25-2002

Pg.689

Mission Valley Rock Co.

WEST 2001-618-M

04-30-2002

Pg.330

Original Sixteen to One Mine, Inc.

WEST 2000-63-M

01-30-2002

Pg.26

Original Sixteen to One Mine, Inc.

WEST 2000-63-M

02-27-2002

Pg. 148

2

Case Name

Docket Number

Date

Page
Number
FMSHRC,
Vol. 24

Pasco Gravel Co.

WEST 2001-585-M

10-17-2002

Pg. 16

Pea Ridge Iron Ore Co.

CENT 2002-159-M

05-07-2002

Pg. 423

Pea Ridge Iron Ore Co.

CENT 2002-23-M

01-17-2002

Pg. 4

Phelps Dodge Sierrita, Inc.

WEST 2002-429-M

07-23-2002

Pg.661

Pioneer Aggregates, Inc.

PENN 2002-142

07-10-2002

Pg.639

Rogers Group, Inc.

CENT 2001-316-M

03-20-2002

Pg. 253

Rosebud Mining Co.

PENN 2002-50

05-10-2002

Pg. 457

Southdown, Inc.

PENN 2002-22-M

01-17-2002

Pg. 8

Stanley (employed by Mine
Management Consultants, Inc.)

VA 2001-42

02-25-2002

Pg. 144

Texas Mining, L.P.

CENT 2002-236-M

06-24-2002

Pg.520

Tide Creek Rock, Inc.

WEST 2002-202-M

05-07-2002

Pg. 428

Trico Recycling, Inc.

CENT 2002-250-M

06-26-2002

Pg. 560

U.S. Quarried Slate Products, Inc.

YORK 2002-4-M

01-23-2002

Pg.21

United Metro Materials

WEST 2000-35-RM

02-19-2002

Pg. 140

Vermont Unfading Green Slate Co.

YORK 2000-65-M

05-09-2002

Pg.439

Virginia Slate Co.

VA 1999-8-M

06-19-2002

Pg.507

Watkins Engineers &
Constructors

WEST 1999-280-M

07-23-2002

Pg.669

Webster Scale, Inc.

CENT 2002-192-M

05-12-2002

Pg.491

Wedron Silica

LAKE 2002-18-M

04-30-2002

Pg.346

Woodruff v. Hollinger
Construction

WEST 2002-163-D

04-29-2002

Pg.327

3

ALJ Decisions and Orders

Case Name

Docket Number

Date

Page
Number
FMSHRC,
Vol. 24

Adams v. Calvin Lenig Coal
Preparation and Sales, Inc.

PENN 2002-37-D

11-15-2002

Pg. 973

Aggregate Industries, West
Central Region

WEST 2002-317-RM

09-04-2002

Pg. 903

Arnold Crushed Stone, Inc.

CENT 2002-242-M

12-24-2002

Pg. 1070

Averette employed by Jim Walter
Resources, Inc.

SE 2002-86-M

10-31-2002

Pg.937

Bailey Quarries, Inc.

CENT 2002-108-M

09-16-2002

Pg. 882

Becon Construction, Inc.

WEST 200 1-204-RM

09-09-2002

Pg.908

Begley (Sec'y of Labor on behalf
of) v. Coastal Coal Co.

KENT 2002-195-D

10-23-2002

Pg.955

Bennett (Sec'y of Labor on behalf
of) v. Smasal Aggregates

WEST 2002-292-DM

04-16-2002

Pg. 381

Bernardyn (Sec'y of Labor on
behalf of) v. Reading Anthracite
Co.

PENN 99-158-D

03-04-2002

Pg.28 1

Bernard yo (Sec'y of Labor on
behalf of) v. Reading Anthracite
Co.

PENN 99-158-D

02-01-2002

Pg. 151

BGS Construction, Inc.

WEYA 2002-41

05-03-2002

Pg. 787

BGS Construction, Inc.

WEYA 2002-41

06-20-2002

Pg. 791

~

4

ALJ Decisions and Orders
Case Name

Docket Number

Date

Page
Number
FMSHRC,
Vol. 24

Bilbrough Marble Division/Texan
Architectural Aggregate

CENT 2001-394-M

03-15-2002

Pg.285

Black Beauty Coal Co.

LAKE 2002-20

08-22-2002

Pg.866

Bundy (Sec'y of Labor on Behalf
of) v. Kennecott Utah Copper
Corp.

WEST 2001-608-DM

08-22-2002

Pg. 822

Cactus Canyon Quarries of Texas,
Inc.

CENT 2001-279-M

01-30-2002

Pg. 133

Cactus Canyon Quarries of Texas,
Inc.

CENT 2001-363-M

02-01-2002

Pg.247

Cactus Canyon Quarries of Texas,
Inc.

CENT 2002-80-M

06-06-2002

Pg.599

Cactus Canyon Quarries of Texas,
Inc.

CENT 2002-379-M

06-17-2002

Pg. 604

Cactus Canyon Quarries of Texas,
Inc.

CENT 2002-124-M

06-1 7-2002

Pg.609

Cannelton Industries, Inc.

WEVA 2000-1 13

08-23-2002

Pg.840

Cannelton Industries, Inc.

WEVA 2002-111-R

07-10-2002

Pg. 707

Caudill (Sec'y of Labor on behalf
of) v. Leeco, Inc.

KENT 2002-114-D

05-29-2002

Pg.589

Caudill (Sec'y of Labor on behalf
of) v. Leeco, Inc.

KENT 2002-114-D

10-21-2002

Pg. 948

CDK Contracting Co.

WEST 2001-420-RM

04-18-2002

Pg.413

Chino Mines Co.

CENT 99-20-M

02-20-2002

Pg. 189

Consolidation Coal Co.

WEVA 2002-21

02-06-2002

Pg.249

5

ALJ Decisions and Orders
Case Name

Docket Number

Date

Page
Number
FMSHRC,
Vol. 24

Cougar Coal Co.

KENT 2000-133

02-14-2002

Pg. 176

Dakota Cement

CENT 2001-218-M

07-31-2002

Pg. 782

Darwin Stratton & Son Inc.

WEST 2002-146-M

08-15-2002

Pg. 817

Darwin Stratton & Son, Inc.

WEST 2001-528-M

01-30-2002

Pg. 137

Darwin Stratton & Son, Inc.

WEST 2001-528-M

04-29-2002

Pg.403

Day Mining, Inc.

WEYA 2001-66

09-17-2002

Pg. 895

Dye v. Mineral Recovery
Specialists

WEST 2002-408-DM

09-06-2002

Pg.906

Dykoffv. U.S. Borax, Inc.

WEST 2001-409-DM

03-27-2002

Pg. 300

Easley v. Morrill Asphalt Paving

WEST 2001-133-DM

07-26-2002

Pg. 801

Easley v. Morrill Asphalt Paving

WEST 2001-133-DM

12-23-2002

Pg. 1058

Fletcher v. Morrill Asphalt Paving

WEST 2001-150-DM

04-22-2002

Pg.401

Fletcher v. Morrill Asphalt Paving

WEST 2001-150-DM

02-22-2002

Pg.232

Freeman United Coal Mining Co.

LAKE 2000-102-R

07-05-2002

Pg. 705

Georges Colliers, Inc.

EAJ 2002-2

06-14-2002

Pg.572

Georges Colliers, Inc.

CENT 2000-157

01-03-2002

Pg. 51

Griffitts (Sec'y of Labor on behalf
of) v. Coalfield Services, Inc,

VA 2002-32-D

04-12-2002

Pg. 376

Hamilton Pipeline, Inc.

CENT 2001-330-M

10-17-2002

Pg. 915

Hanson Permanente Cement

WEST 2002-370-RM

10-31-2002

Pg.941

Harvey v. Mingo Logan Coal Co.

WEVA 2001-28-D

01-08-2002

Pg. 71

Hernandez v. Asarco, Inc.

WEST 2001-308-DM

03-20-2002

Pg.293

6

ALJ Decisions and Orders
Case Name

Docket Number

Date

Page
Number
FMSHRC,
Vol. 24

Higman Sand & Gravel, Inc.

CENT 2000-208-M

01-17-2002

Pg. 87

Jordan Construction

KENT 2002-4 16

11-22-2002

Pg.999

Kinder Morgan Operation L.P.

KENT 2003-85-R

12-18-2002

Pg. 1055

Knaak Sand

CENT 2002-127-M

09-11-2002

Pg. 910

Knaak Sand

CENT 2002-127-M

11-12-2002

Pg.964

Kunkel (Sec'y of Labor on behalf
of) v. Silver Cloud Coal, Inc.

KENT 2002-225-D

05-23-2002

Pg.500

Lattimore Materials Co.

CENT 2002-171-M

09- 11-2002

Pg. 879

Left Fork Mining, Inc.

KENT 2001-129

04-09-2002

Pg.365

Lexicon

CENT 2001-370-M

11-26-2002

Pg. 1014

Lodestar Energy, Inc.

KENT 2001-53

08-07-2002

Pg. 803

Lodestar Energy, Inc.

KENT 2001-200

03-08-2002

Pg. 320

Lowe (Sec'y of Labor on behalf of)
v. Island Creek Coal Co.

VA 2001-24-D

04-19-2002

Pg.392

McClernan (Sec'y of Labor on
behalf of) v. Lakehead
Constructors, Inc.

LAKE 2001-58-DM

11 -27-2002

Pg. 1032

McGill (Sec'y of Labor on behalf
of) v. U.S. Steel Mining Co.

SE 2000-39-D

10-16-2002

Pg. 913

Mine Management Consultants,
Inc.

VA 2001-37

06-11-2002

Pg. 563

Mining Property Specialists, Inc.

VA 2001-20

02-05-2002

Pg. 156

Nelson Brothers Quarries

CENT 2002-65-M

11-19-2002

Pg.980

Nelson Brothers Quarries

CENT 2001 -284-M

02-14-2002

Pg. 167

7

ALJ Decisions and Orders
Case Name

Docket Number

Date

Page
Number
FMSHRC,
Vol. 24

Ohio Valley Coal Co.

LAKE 2002-61

12-31-2002

Pg. 1072

Ohio County Coal Co.

KENT 2001-428

05-28-2002

Pg.502

Olson v. Wyoming Fuels

WEST 2002-304-D

07-03-2002

Pg.794

Original Sixteen to One Mine, Inc.

WEST 2002-224-M

12-03-2002

Pg. 1053

Original Sixteen to One Mine, Inc.

WEST 2001-61-M

09-04-2002

Pg. 869

Owens (Sec'y of Labor on behalf
of) v. Drummond Co.

SE 2002-114-D

07-26-2002

Pg. 768

Paiute Aggregates, Inc.

WEST 2002-269-M

10-18-2002

Pg.943

Paiute Aggregates, Inc.

WEST 2002-441-M

10-22-2002

Pg.950

Pero v. Cyprus Plateau Mining
Corp.

WEST 97-154-D

03-15-2002

Pg. 291

Perry County Coal Corp.

KENT 2001-298

03-11:-2002

Pg. 323

Peterson v. Sunshine Precious
Metals, Inc.

WEST 1998-307-DM

08-09-2002

Pg. 810

Pittsburg & Midway Coal Mining
Co.

CENT 2002-39

03-13-2002

Pg.325

Polly v. Powell Mountain Coal Co.

KENT 2002-253-D

08-13-2002

Pg.864

Pronghorn Drilling Co.

EAJ 2001-4

03-04-2002

Pg.279

Pronghorn Drilling Co.

EAJ 2001-4

01-15-2002

Pg. 82

Pronghorn Drilling Co.

EAJ 2001-4

02-14-2002·

Pg.252

Pronghorn Drilling Co.

EAJ 2001-4

03-01-2002

Pg.276

Read Sand & Gravel

YORK 2001-65-M

04-16-2002

Pg.389

San Juan Coal Co.

CENT 2001-102

02-13-2002

Pg. 165

8

ALJ Decisions and Orders
Case Name

Docket Number

Date

Page
Number
FMSHRC,
Vol. 24

Sansoucie (Sec'y of Labor on
behalf ot) v. Vessell Mineral
Products

CENT 2001-228-DM

06-28-2002

Pg. 579

Shaffer v. Gray Quarries, Inc.

LAKE 2002-47-DM

07-24-2002

Pg. 715

Simp-A-Lex

KENT 2001-297

01-04-2002

Pg.69

Sullivan (Sec'y of Labor on behalf
ot) v. 3M Co.

CENT 2003-43-DM

11-25-2002

Pg. 1006

Summit Anthracite, Inc.

PENN 1999-213

07-25-2002

Pg. 720

Sykes v. Har-Lee Coal Co.

VA 2002-33-D

07-17-2002

Pg. 713

Tide Creek Rock, Inc.

WEST 2000-368-M

02-21-2002

Pg. 201

Tilden Mining Co.

LAKE 2002-94-RM

01-03-2002

Pg. 53

U.S. Quarries Slate Products, Inc.

YORK 2001-53-M

01-22-2002

Pg. 124

UMWA, Local 2368 v. Jim Walter
Resources, Inc.

SE 2002-22-C

07-05-2002

Pg. 797

UMW A, Local 2368 v. Jim Walter
Resources, Inc.

SE 2002-22-C

10-18-2002

Pg.931

UMW A, Local 1248 v. Maple
Creek Mining

PENN 2002-24-C

01-15-2002

Pg. 131

Vermont Unfading Green Slate Co.

YORK 2000-65-M

09-16-2002

Pg. 890

Western Industrial, Inc.

WEST 2001-473-M

03-01-2002

Pg.269

Williams Brothers Coal Co.

KENT 2001-136

01-17-2002

Pg. 110

Womack v. Graymont Western
U.S.

WEST 2002-138-DM

11-21-2002

Pg. 1049

Woodruff v. Hollinger
Construction, Inc.

WEST 2002-163-D

11-05-2002

Pg.957

9

ALJ Decisions and Orders

10