APRIL
COMMISSION DECISIONS
04-01-86
04-18-86

Minerals Exploration Company
Westmoreland Coal Company

WEST 81-189-RM
WEVA 82-152-R

Pg. 4 77
Pg. 491

CENT 85-20-M
WEST 84-134-M
LAKE 85-47
KENT 83-212
WEST 85-85-45-M
PENN 86-43
VA
85-32-D

Pg. 495
Pg. 506
509
Pg. 517
Pg. 520
524
Pg. 526

SE
85-36-R
LAKE 86-33-D
VA
85-5-D

Pg. 568
Pg. 598
Pg. 602

WEST 86-56-R
WEVA 85-226-D

Pg. 604
Pg. 605

LAKE 85-74-R
WEST 85-169
WEVA 85-278
VA
86-4-D
VA
85-26
WEST 84-117-RM
CENT 85-132-D
KENT 85-108-D
WEVA 82-152-R
WEVA 86-69-D

Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.

WEST 85-34

Pg. 648

ADMINISTRATIVE LAW JUDGE DECISIONS
04-01-86
04-02-86
04-03-86
04-04-86
04-04-86
04-07-86
04-07-86
04-08-86
04-09-86
04-09-86
04-10-86
04-10-86
04-17-86
04-21-86
04-21-86
04-22-86
04-23-86
04-23-86
04-24-86
04-28-86
04-28-86
04-28-86
04-30-86

Homestake Mining Company
Big Horn Construction Co.
Wilmot Mining Company
Pyro Mining Company
Anderson Milling Company
Helvetia Coal Company
Secretary of Labor for Earl Kennedy & Larry
Collins v. Raven Red Ash Coal Corp.
Jim Walter Resources, Inc.
Ann Riley Owens v. Monterey Coal Co. (Order)
Secretary of Labor for Larry Collins v.
Raven Red Ash Coal Corp.
Emery Mining Corporation
Secretary of Labor for John Kline v.
Consolidation Coal Company
Youghiogheny & Ohio Coal Company
Consolidation Coal Company
Otis Elevator Company
Don Keen, et al v. Garden Greek Pocahontas Co.
Banner Coal Company, Inc.
FMC Corporation
A.D. Bracken v. Apline Construction Co.
David Ratliff v. Bethenergy Mines, Inc.
Westmoreland Coal Company
Secretary of Labor for Kevin Smith v.
Consolidation Coal Company
Mid-Continent Resources

606
612
620
622
628
631
642
643
645
Pg. 647

APRIL
The following case was granted for review during the month of April:
Emerald Mines Corporation v. Secretary of Labor, Docket No. PENN 85-298-R.
(Judge Melick, March 5, 1986)
The following case was denied for review during the month of April:
Secretary of Labor, MSHA v. Youghiogheny & Ohio Coal Company, Docket No.
LAKE 85-37. (Judge Maurer, March 7, 1986)

COMMISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

April 1, 1986
MINERALS EXPLORATIOP COMPANY
Docket No, WEST 81-189-RM

v.

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

BEFORE:

Backley, Lastowka and Nelson, Commissioners
DECISION

BY THE COMMISSION:
This case arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1982), and involves two related proceedings.
The first is a consolidated contest by Minerals Exploration Company
("Minerals") of an imminent danger withdrawal order issued pursuant to
30 U.S.C. § 817(a) and a civil penalty proceeding dealing with an alleged
violation by t1inerals of 30 C.F.R. § 55.3-5 (1984). That matter was
presided over by Commission Administrative Law Judge John A. Carlson.
The second proceeding, heard on an interlocutory basis by former Commission Administrative Law Judge Jon D. Boltz, involves Minerals' motion
for sanctions against officials of the Department of Labor's Mine Safety
and Heal th Administration (''MSHA") and the Secretary of Labor's trial
counsel for alleged improprieties in prosecuting the proceeding before
Judge Carlson. In an unpublished order issued on April 7, 1982, prior
to Judge Carlson's decision on the merits, Judge Boltz denied Minerals'
motion for sanctions. Approximately one year later, Judge Carlson
issued his decision upholding both the imminent danger withdrawal order
and the citation and the judge assessed a civil penalty. 5 FMSHRC 669
(April 1983)(ALJ). Following Judge Carlson's decision, Minerals filed
with the Commission a petition for discretionary review primarily
challenging Judge Boltz's order denying sanctions. 'J:_/

'J:_f
The Commission is an independent adjudicatory agency established to
resolve legal disputes arising under the Mine Act. 30 U.S.C. § 823.
The Commission is not a part of and is in no way connected with the
Department of Labor or the Mine Safety and Health Administration.

477

The crucial issues before us concern allegations of impropriety on
the part of MSHA officials and counsel for the Secretary. For the
reasons set forth below, we affirm Judge Roltz's order denying sanctions
and we affirm Judge Carlson's decision on the merits. At the same time,
we express our strong disapproval and, as appropriate, serve warning
with respect to some of the activities of certain MSHA officials and the
Secretary's trial counsel.
I.

Facts and Procedural History
At the time of the operative events in this case, Minerals operated
the Sweetwater uranium project, a large surface uranium mine located
near Rawlins, Wyoming. The underlying case arose in connection with a
citation and imminent danger withdrawal order issued in February 1981 by
MSHA to Minerals for allegedly violating section 55.3-5 by permitting
loose, overhanging rock on the east wall of the C-1 pit. 2/ A hearing
on the merits of the citation and withdrawal order was held before Judge
Carlson in April 1981, and was continued until June 29, 1981.
Prior to resumption of the hearing, a telephone conference call was
held on June 22, 1981, among Judge Carlson, Anthony Weber, counsel for
Minerals, Phyllis Caldwell, counsel for the Secretary, and Revelyn
Suter, President of the Progressive Mineworkers Union ("the Union"),
representative of miners at the Sweetwater mine. The conference call
was initiated by Judge Carlson for the purpose of discussing the TJnion's
written request that Union Secretary Daphne Hamilton be permitted to
appear at the hearing to "help make sure that the facts are correctly
represented." During the call, Ms. Suter expressed concern that falsified documents would be introduced by Minerals at the hearing. Attorney
Weber subsequently testified that due to a bad connection he could not
hear Sutervs end of the conference call. Weber did understand, however,

2/

Former section 55.3-5 provided:
Mandatory. Men shall not work near or under dangerous
banks. Overhanging banks shall be taken down immediately
and other unsafe ground conditions shall be corrected
promptly, or the areas shall be barricaded and posted.

30 C.F.R. § 55.3-5 (1984). In January 1985, this provision was replaced
by 30 C.F.R. § 56.3005 (1985), which is virtually identical.

478

through the comments of Judge Carlson, whom he could hear, that the
Union was concerned over possibly falsified documents being used by
Minerals at the hearing. 3
Later that same day, following the conference call, attorney Caldwell
received a telephone call from the MSHA sub-district office covering the
Sweetwater mine, informing her that a letter had been received from
Union Secretary Hamilton making similar allegations that falsified
documents would be introduced at the hearing. As a result of that phone
call, Caldwell and her supervisor, Senior Attorney James Barkley, arranged
for an MSHA investigation into the claims of document falbification.
MSHA Special Investigator Jerry Thompson was assigned to the task.
Inspector Thompson began talking privately with Minerals drafting department employees and, by the next day, June 23, 1981, learned that Brian
Baird was the Minerals draftsman who had worked on original drawings of
the C-1 pit -- drawings that had become the focus of the inspector's
investigation. Caldwell directed Inspector Thompson to interview Baird.
The inspector visited Baird's home in the Rawlins area on Sunday,
June 28, 1981, the day before the resumption of the hearing before Judge
Carlson. Thompson identified himself as an MSHA special investigator
and stated that he wanted to ask Baird questions about the documents to
be used at the hearing the next day in the Denver. Baird indicated that
the drawings of the C-1 pit originally had been completed from survey
notes but later had been changed, supposedly upon the basis of visual
observations. Baird showed Thompson one of the original drawings and
told him that there were other original drawings at the mine. Baird
expressed concern that the modified drawings were not accurate. Before
Thompson left Baird's home, he obtained a written statement from Baird
regarding the changes in the drawings.
3/
During the call, Weber made comments which led other participants
in the conversation to believe that he was threatening with discharge
Union representatives Suter and Hamilton (who were then on sick-leave
status with Minerals) if they participated in the hearing. Weber's
comments became the focus of several additional proceedings. Prior to
the resumption of the hearing on June 29, 1981, the Secret~ry filed with
Judge Carlson a letter seeking the institution of disciplinary proceedings against Weber. Judge Carlson referred this letter to the
Commission and the Commission referred the matter to Commission Administrative Law Judge Paul Merlin for disciplinary proceedings. The matter
was resolved, based on stipulations, at a hearing before Judge Merlin.
The judge admonished Weber concerning his remarks but held that no
further disciplinary proceedings were warranted. Disciplinary
Proceeding (Minerals Exploration Co.), 3 FMSHRC 1919, 1920-21 (August
198l)(ALJ). The Secretary also initiated a discrimination case against
Minerals based on this incident. FMSHRC Docket No. WEST 82-38-DM. That
case eventually was settled by the parties.

479

The hearing on the merits reconvened in Denver on June 29, 1981.
Prior to the taking of testimony, counsel for the Secretary presented
Judge Carlson with the letter requesting disciplinary proceedings against
Minerals' counsel, Weber (n. 3 supra). On the afternoon of June 29,
Minerals began its defense by presenting the testimony of Project Manager
Larry Dykers. Mr. Dykers testified about the plan map covering the C-1
pit. After Weber moved for introduction of the drawing, counsel for the
Secretary, Barkley, requested voir dire. Barkley established that the
map originally had been drawn by Baird and, as presented at the hearing,
showed the existence of a safety bench on the east wall of the C-1 pit.
Barkley then objected to the admission of the map as "irrelevant because
it would seem to be a document that may have been falsified to the point
that it is irrelevant." M. Tr. 472. 4/ Barkley indicated that he was
prepared to subpoena Minerals' entire drafting department to testify
concerning the alleged falsification.
Weber reacted with surprise but expressed a willingness to bring
the Minerals employees to the hearing in order to resolve the matter.
It was then 5:00 p.m. and the judge suggested an adjournment -- but only
until the afternoon of the following day. Weber did not request a
longer continuance or object to this procedure. This procedural decision
set into motion the main series of events which led to the present
litigation.
Barkley requested subpoenas for Minerals' employees and documents.
The judge issued signed subpoenas in blank to Barkley. The evidence
indicates that the parties never reached any understanding as to the
individuals who would be subpoenaed. Barkley conferred with Inspector
Thompson concerning the Minerals employees to be subpoenaed. They
agreed that Thompson and another MSHA Inspector, Merrill Wolford (who
had issued the underlying citation and imminent danger order), were to
drive 250 miles to Rawlins to serve the subpoenaed individuals. Thompson
telephoned Baird from Denver to inform him that he would be subpoenaed
that evening to appear at the hearing in Denver the following day.
Thompson asked Baird to inform the other draftsmen that they would be
subpoenaed.
Thompson inquired as to whether Baird had brought home his
original drawings of the C-1 pit. Baird replied that he had not.
Thompson told Baird not to worry because he would be bringing a subpoena
requiring Baird to obtain the original documents.
At approximately 1:30 a.m. on June 30, 1981, the two inspectors
arrived in the Rawlins area and began serving the subpoenas. Apart from
Baird, they served four Minerals employees, all of whom refused an offer
of transportation to Denver. The inspectors reached Baird's home at
3:00 a.m., and then proceeded to the mine offices, some 40 minutes away,
to obtain original drawings of the C-1 pit. Baird questioned the propriety
of taking the documents from the mine, and Thompson replied that the
subpoena required that action.
4/
For purposes of this decision, transcript citations to the hearing
before Judge Carlson on the merits are designated M. Tr.
Transcript
citations to the hearing before Judge Boltz on Minerals' Motion for
Sanctions, are designated s. Tr.

480

The inspectors and Baird arrived at the mine offices at 4:00 a.m.
After finding several mine entrances to be locked, the party finally
found one that was unlocked. They proceeded to Baird's desk, where
Baird picked up a cardboard tube containing the drawings. They then
drove to Denver. The other subpoenaed Minerals employees went to work
later in the morning of June 30 and they attempted to gather all documents
possibly relevant to the C-1 pit. They then flew to Denver in two
company chartered planes.
Barkley met with Baird on the morning of June 30, 1981, upon the
latter's arrival in Denver. Baird again expressed concern about his
removal of the documents from the mine and Barkley told him "not to
worry about it." S. Tr. 842. Later that morning, Barkley arrived at
the Commission's Denver office, where the hearing was being held. He
instructed Inspector Thompson to locate two of the subpoenaed witnesses,
who worked in the drafting department, so that he could talk with them.
Those two individuals told Barkley that the modifications in the drawings
were based upon good faith subjective judgment. Barkley stated that
"people had gone to jail trying to take refuge in subjective judgment."
Dickey Affidavit at 4; Hill Affidavit at 6-7.
When the reconvened hearing commenced, Barkley announced that he
would present all his evidence through Baird, and excused the other four
subpoenaed employees. During the course of Baird's testimony, Barkley
used the drawings that Baird had obtained from Minerals' office. These
documents were entered into evidence without objection from Weber. At
the conclusion of Baird's testimony, Weber requested and Judge Carlson
permitted a continuance to allow Weber to respond on the matter of
possible document falsification. After the close of the hearing, and
upon request from Barkley, the judge ordered that the documents which
had been produced in response to the subpoenas be kept in the hearing
room overnight. The parties agreed that the next morning Minerals'
employees would separate the documents into relevant and irrelevant
categories. The Secretary's counsel was to arrive later in the morning
for document inspection.
The following morning, Weber departed from the Denver area and left
Minerals' Project Manager Dykers, who is not a lawyer, in charge of the
document separation and production process. Dykers decided that the
daily reminder diaries that some of the employees had brought did not
have to be produced. Those employees returning to the mine that morning
took their diaries with them. Barkley and other representatives of the
government arrived later in the morning and proceeded to review the
documents, including those separated out by Minerals as irrelevant,
During the examination of the documents, it was realized that the
daily diaries were not present. Dykers indicated that they had been
determined to be irrelevant and had been given to the employees returning
to Rawlins. At Barkley's insistence, Dykers agreed to try to retrieve
the diaries from the Minerals employees at the Denver airport. Dykers
succeeded, and when the diaries were returned to the Commission offices,
Barkley took them into a separate room for examination. Barkley subsequently
refused to return the diaries to Minerals for a period of months, despite
repeated requests from Minerals.

481

The hearing on the merits did not resume as anticipated. Initially,
the delay was because of the Secretary's request for disciplinary proceedings against Weber. After that matter was concluded, Minerals filed
in September 1981 the motion for sanctions that is the primary subject
of this review. That motion was transferred to then Judge Boltz because
of the possibility that Judge Carlson might be called as a witness. The
hearing on the sanctions motion covered four days (November 9-12, 1981),
and Judge Boltz issued his order denying sanctions on April 7, 1982. 2../
In his decision denying Minerals' motion for sanctions, Judge Boltz
found that Inspector Thompson had not coerced Baird's written statement
and that Inspectors Thompson and Wolford had not acted improperly by
serving the subpoenas and by entering the mine property with Baird in
order to obtain the subpoenaed documents. The judge also determined
that there was no impropriety on the part of counsel for the Secretary
in conducting an independent investigation of the falsification allegations without notifying Minerals' counsel, in examining the subpoenaed
documents that Minerals had designated as irrelevant, and in retaining
and refusing to return the daily reminder diaries of Minerals' employees.
The judge concluded that he found "nothing in the conduct of counsel for
the Secretary or in the conduct of Inspectors Thompson and Wolford that
was improper in the circumstances of this case." Slip op. 8.
Subsequently, on September 15, 1982, following negotiations between
the parties, a joint motion for decision on the merits based on the
existing record was filed with Judge Carlson. The judge issued his
decision on the merits on April 6, 1983. In finding a violation, Judge
Carlson did not utilize the record from the hearing before Judge Boltz
on sanctions. Judge Carlson indicated that he was "not prepared to hold
whether or not the drawings were 'falsified'," because "such a holding
(was] not necessary to reach a proper decision on the merits of the
case. 11 5 FMSHRC at 676. The judge stated:
I did find Baird an earnest and believable witness
with no discernible motive for dissembling. At
the very best, the process by which the final set
of drawings came about betrays a subjectivity, a
flexibility, which robs them of any weight favorable to Minerals. Beyond that, even if the modified
drawings were accepted as accurate, they would not
persuade me of the absence of violation.
Id. Finding that other evidence independently supported a finding of
violation, the judge concluded that Minerals had violated section 55.3-5
and that the imm~nent danger order had been issued appropriately.
5/
Minerals petitioned the Commission for discretionary review of
Judge Boltz's order denying its motion for sanctions. The Commission,
treating Minerals' petition as one for interlocutory review, denied the
request without prejudice to renew after final disposition of the case
by Judge Carlson.

482

II.

Disposition of Minerals' Assertions
of Improprieties

On review, Minerals repeats the assertions of governmental impropriety
raised before Judge Boltz. Minerals argues that it was prejudiced by
the actions of MSHA officials and counsel for the Secretary and requests
vacation of the civil penalty and dismissal of the proceeding. Minerals
contends that these sanctions are necessary to deter the government from
future impropriety and illegality, and to prevent the tainting of Commission
proceedings. We examine separately each assertion of impropriety.
A.

Minerals' objections concerning the Secretary's initial
investigation into the possible falsification of evidence
1.

The general propriety of the Secretary's investigation

Minerals contends that it was improper for the Secretary to authorize
and direct between June 22 and 28, 1981, a "secret" investigation involving
interviews with employees of the opposing party without advising the
judge and opposing counsel. Minerals argues that such actions violated
Commission discovery procedure and opened the door to unethical conduct.
As Judge Boltz noted, the time period for completion of discovery
under Commission Procedural Rule 55, 29 C.F.R. § 2700.55, had expired on
June 22, 1981. However, when charges surfaced during the June 22 conference call that falsified evidence might be introduced, it was wholly
appropriate for both parties' attorneys -- as responsible advocates and
as officers of the court -- to pursue the matter.
We hold that at that
juncture of the case, in light of the nature of the allegations, either
party could have proceeded properly by requesting the reopening of
discovery (see 29 C.F.R. §§ 2700.55(a) & (b)), or by investigating the
allegations-.~Within the adversarial framework of Commission trial
proceedings, there is no general bar against investigations by either
party into possible new evidence whose existence is suggested during the
course of a trial.
We reject the contention that Minerals' counsel, Weber, was not on
notice as to the existence of the falsification problem and the likelihood
that the opposing party would have a vital interest in determining the
truth of the allegation. As noted above, Weber was made aware from the
comments of Judge Carlson during the conference call that the Union was
raising an issue concerning his client's possible falsification of
evidence. Weber should have been alert to the obvious implications of
such a charge.
Thus, we discern no impropriety in the fact that the Secretary
decided to investigate further the Union's allegations of falsified
evidence. We note, however, certain ethical constraints relevant to
such private inquiries. The American Bar Association ("ABA") Model
Code of Professional Responsibility provides in relevant part:

483

During the course of his representation of a
client a lawyer shall not ••• communicate or
cause another to communicate on the subject of
the representation with a party he knows to be
represented by a lawyer in that matter unless he
has the prior consent of the lawyer representing
such other party ••••
DR 7-104(A)(l)(l980 ed.). Cf. ABA, Model Rules of Professional Conduct,
Rule 4.2 (1983). These model rules prohibit communications with an
opposing "party" without the other lawyer's consent. We do not find it
necessary in the present context to adopt formally these particular
model rules or to construe the full scope of the term "party." Here,
the Minerals employees contacted during the Secretary's private investigation appear to have been non-managerial draftsmen lacking substantial
organizational responsibility. Moreover, we are mindful of the important
purpose of these contacts and of the unusual circumstances of this case.
For present purposes, we remind the Commission Bar of the need to be
respectful of the ethical provisions cited above and of the developing
law in this area. Cf. Massa v. Eaton Corp., 39 FEP 1211 (D. Mich.
1985). On the basi°'S""of the foregoing, we agree with Judge Boltz that
there was no general impropriety in the Secretary's undertaking his
investigation into allegations of evidentiary falsification.
2.

Whether Inspector Thompson coerced Baird's
written statement

Minerals contends that Inspector Thompson coerced Baird's written
statement during their meeting at Baird's home. The evidence shows that
Inspector Thompson identified himself to Baird as an MSHA special investigator and indicated that he wanted to discuss the drawings which were to
be presented at the hearing in Denver. Inspector Thompson also told
Baird that a refusal to talk with him could be construed as assisting in
an attempt to cover up the falsification.
Judge Boltz found that Baird's statement was not coerced. The
interview with the MSHA investigator occurred in Baird's home and was
conducted in the presence of his wife. It lasted 45 minutes and unfolded
in a conversational atmosphere. Baird himself displayed a generally
cooperative attitude, although he experienced some understandable discomfort
in supplying information that he believed might reflect badly on his
employer. He volunteered a drawing from his portfolio and made free-hand
sketches to help the inspector understand the modifications made to the
drawings. On the other hand, Thompson's statement that a refusal to,
talk with him could imply guilt was overbearing and a reflection of poor
judgment. We disavow such investigative tactics, but we conclude that
this errant statement did not coerce a statement from Baird. Accordingly,
in consideration of the totality of the circumstances, we find that
substantial evidence supports Judge Boltz's conclusion that Baird's
statement was not coerced.

484

3.

Barkley's use of Baird's statement at the reconvened
hearing

Minerals asserts that Barkley's use of the products of the Secretary's
investigation into the allegations of falsified evidence at the reconvened
hearing was improper. Minerals a,rgues that Barkley introduced Baird's
statement in a theatrical effort to disrupt its case by interrupting the
hearing and catching Minerals by surprise. The surprise in question was
not the type removed by the procedural rules or cases cited by Minerals.
The surprise was collateral--that is, it was intended as an attack on
the credibility of evidence. There was no change in the theory of the
case upon which either side was proceeding. Moreover, given the fact
that Weber was aware of the falsification allegations as of June 22,
1981, it strains credulity to believe that Barkley's production of
Baird's statement could have come as a complete surprise to Minerals.
B.

Mineral's objections to the subpoena process

Minerals' next major claims of impropriety focus on the subpoena
process, which began at the recess of the hearing on June 29, 1981,
following the introduction of Baird's statement. It is obvious that
this juncture of the hearing was an unfortunate turning point, and most
of the additional allegations of misconduct can be traced to the failure
of the parties and the judge to evaluate adequately a practical and just
method for proceeding with the case and resolving the complication that
had arisen. The judge's late afternoon decision to allow a continuance
of only one-half day when the witnesses and documents to be subpoeanaed
were 250 miles away in Rawlins, Wyoming, was ill-conceived. Sound
judicial practice requires that sufficient time be provided for the
issuance, service of, and compliance with subpoenas. Such practice will
avoid serving subpoenas in the middle of the night, that require witnesses
to travel with subpoenaed documents 250 miles to a hearing the next
afternoon. However, we must observe that Weber's lack of protest and
his acquiescence in this procedure seriously undercut Minerals' present
objections.
1.

Subpoenas in blank

Minerals challenges the judge's issuance of subpoenas in blank to
Barkley. The issuance of subpoenas in blank is authorized by Fed. R.
Civ. P. 45(a), which applies nso far as practicable 11 to Commission
proceedings. 29 C.F.R. § 2700.l(b). Therefore, we perceive no error in
the judge's issuance of blank subpoenas although such practice must be
governed by careful discretion.
2.

Scope of the subpoenas

Minerals n:ext objects to the scope of the subpoenas duces tecum, in
that they covered documents relevant to the entire C-1 pit from December
11, 1980, rather than being limited to the section of the east wall of
the C-1 pit at issue from the later date of citation in February 1981.

485

Relevance is the touchstone in analyzing the proper scope of a subpoena
or discovery request. We have no trouble concluding that the request
was relevant, especially in the context of a possible falsification of
documents. In any event, even if the subpoena was overbroad, the
appropriate remedy for Minerals was to object on the basis of irrelevance
or burdensomeness. 29 C.F.R. § 2700.58(c). However, trial counsel for
Minerals failed to object to the scope of the subpoenas. Accordingly,
we find no error.
3.

Service of the subpoenas

Minerals also objects to the service of the subpoenas in the middle
of the night and by an interested party. As a general legal proposition,
there is no prohibition against either of these occurrences, although
obviously better and preferable practice calls.for service during normal
hours. This is particularly so in a situation like the present, in
which a reasonable continuance could have been granted without prejudice
to either party. The subpoenas then could have been served during
normal hours and the subpoenaed individuals would have had sufficient
time to travel the 250 miles to the hearing in Denver. As a matter of
policy, we do not encourage or favor service of ComMission subpoenas in
the middle of the night absent genuine emergency or extraordinary circumstances, which were not present here.
However, the clear inconvenience attendant upon the service conducted
in this case does not render the service improper or illegal. Again, it
must be emphasized that Weber, counsel for Minerals, failed to object
and failed to urge an alternate timetable. We are also influenced by
the fact that all hut one of the subpoenaed Minerals employees was
notified by telephone in the early evening of June 29, 1981, that they
were to be subpoenaed to appear at the hearing in Denver the following
day.
Notwithstanding the above, we are compelled to observe and disapprove the heavy-handed manner in which Thompson proceeded. The record
indicates that he represented himself in a manner causing several of the
subpoenaed witness to believe that they were being confronted by an
agent of the Federal Bureau of Investigation. S. Tr. 278, 280, 312,
410, 443, 444. Moreover, several of these witnesses testified that
Thompson 1 s early morning intrusion caused genuine fear and intimidation.
S. Tr. 253, 254, 346, 347, 413.
As to Minerals' objection to service by an interested party, Commission Procedural Rule 58(a) governing subpoena service states that a
subpoena "may be served by any person who is not less than 18 years of
age. 11 29 C.F.R. § 2700.58(a). Inasmuch as Rule 58(a) does not prohibit
service by an interested party (assuming Inspector Thompson to be such a
party), we find no irregularity in service of the subpoenas by Inspector
Thompson.

486

4.

Entry of Inspectors into Minerals' mine offices

Minerals challenges Judge Boltz's finding that there was no impropriety in the actions of Inspectors Thompson and Wolford in connection
with Baird's removal of drawings from the mine office at approximately
4:00 - 4:30 a.m. on the morning of June 30, 1981. The Secretary argues
that the inspectors did nothing illegal and that it was Baird who took
the documents as required by the subpoena. Our review of the record,
however, convinces us that Baird would not have travelled to the mine
and taken the documents on his own. In the early hours of June 30 when
the inspectors served Baird with the subpoenas and proceeded with him to
the mine offices, Baird questioned the propriety of taking the documents
from the mine and Thompson replied that the subpoena required it. To
this extent, the entry and taking of the documents may be viewed as the
action of MSHA. Thus, the next question is whether the removal of the
documents was illegal or otherwise improper.
In deciding this question, control or custody of documents as well
as ownership is critical in the determination of the propriety of document
production under subpoena. Service on one who has control of documents
may be sufficient as against the owner. See, e.g., Mattie T. v. Johnston,
74 F.R.D. 498, 502 (N.D. Miss. 1976), and authorities cited. However,
the present case is different from the control involved in the cases
relied upon by the Secretary. In those cases, the person subpoenaed
exerted substantial control over the documents. Here, the evidence
shows that Baird's control over the drawings was nominal, encompassing
only the requirements of his immediate work assignment. In short, the
subpoena did not allow Baird to take the documents without the permission
of his superior. Thus, Judge Boltz's conclusion that there was no
impropriety on the part of the inspectors in removing the drawings from
Minerals' mine offices is erroneous. We are particularly disturbed by
the MSHA inspectors' middle-of-the-night entry into private mine offices,
without identification to appropriate agents of the operator. We strongly
denounce Thompson's abuse of authority and reiterate our disapproval of
the ill-controlled subpoena process agreed to by the parties.
Despite our conclusion that the exhibits were improperly obtained,
we find no prejudice to Minerals. The outcome on the merits rested on
adequate, independent grounds. Accordingly, we deem it inappropriate
to invoke the extreme remedy of dismissal of the proceedings on the
merits.
C.

Mineral's objections to counsel's conduct after service
of the subpoenas
1.

Barkley's treatment of the subpoenaed Minerals employees

Minerals argues that counsel for the Secretary, Barkley, improperly
questioned two of its employees who had been subpoenaed and that Judge
Boltz failed to address this objection. Dealing with the latter assertion
first, we note that although Judge Boltz did not address this objection

487

directly he resolved it indirectly when he found that counsel for the
Secretary had not abused the Commission subpoena power and that the
persons subpoenaed were witnesses for MSHA. Slip op. 7.
As to the merits of this particular contention, Minerals' argument
is focused on Barkley's meeting with two subpoenaed Minerals draftsmen
in advance of the resumption of the hearing on June 30, 1981, to discuss
their testimony. These individuals were subpoenaed as MSHA's witnesses.
While the authority for the issuance of subpoenas is through the Commission
(30 U.S.C. § 823(e) & 29 C.F.R. §§ 2700.54(a), .57 & .58), witnesses
appear on behalf of the party requesting the subpoena. Because the
draftsmen were witnesses for MSHA, it was reasonable and proper for
Barkley to attempt to interview them before they gave their testimony.
Minerals also argues that Barkley improperly threatened the two
employees by commenting that people had gone to jail trying to take
refuge in subjective judgment. However, no one who heard Barkley's
remark indicated that it was an assertion of an action to be taken or a
prediction of events to follow. Although Barkley's comment was clearly
improper and ill-chosen, evidencing a lack of understanding of proper
prosecutorial conduct, it did not constitute an improper threat of
criminal prosecution.
2.

Barkley's release of the subpoenaed witnesses

Minerals' allegations of misconduct as to the release of the subpoenaed witnesses involves more comments by Barkley which Minerals
asserts misled Judge Carlson. Immediately after Barkley's discussion
with the two draftsmen discussed above, the hearing resumed. Barkley
informed Judge Carlson that he would present all of his evidence through
Baird and, therefore, was excusing the remaining subpoenaed witnesses.
Barkley's stated reason for this action was effectively that the testimony
of the other witnesses woµld be cumulative. This explanation was a
distortion or the facts known to Barkley and certainly beneath the level
of candor reasonably expected of an officer of the court. As Barkley
explained at the sanctions hearing, the real reason for his excusing the
other witnesses was that they had given him a "very pat kind of response
or defense to their involvement." S. Tr. 800. Barkley should not have
represented otherwise to the judge.
3.

Barkley's examination and retention of subpoenaed documents

Minerals next argues that Judge Boltz erred in finding no impropriety
in Barkley's examining all the produced documents, including those
separated out by Minerals as irrelevant, on July 1, 1981, and that it
was improper for Barkley to take and refuse to return for a period of
months the daily reminder diaries of the Minerals employees.
All of Minerals' witnesses testified that because they were pressed
for time at the mine on the morning of June 30, they gathered all possibly
relevant documents to take to Denver to be sorted out later. In general,

488

absent permission, one party has no right to examine the opposing party's
documents to ascertain what is properly obtainable. However, the record
indicates an utter lack of clear agreement between the parties as to how
the documents would be produced and examined. Indeed, this dispute over
the documents occurred largely because of the absence of Weber from the
document production activities. At the recess of the hearing on June
30, the parties agreed to meet the next morning to exchange and examine
documents. Nevertheless, prior to the document exchange Weber departed
Denver and left in charge Dykers, a Minerals employee who is not an
attorney. Weber did not explain to the judge or to counsel for the
Secretary his intention to depart before the document examination took
place. At the very least, we find it surprising that an attorney would
allow documents to be produced to opposing counsel without first approving
their release. Furthermore, Weber failed to give Dykers any instructions
regarding the actions that should have been taken if a dispute arose.
Given Weber's abdication of his adversarial responsibility, we cannot
find wrongdoing in Barkley's examination of the produced documents.
We do not agree, however, with Judge Boltz's conclusion that there
was no impropriety in Barkley's taking and refusing to return the diaries
of the subpoenaed employees. A subpoena duces tecum does not allow
retention of the originals of subpoenaed documents without permission.
Whatever may be argued about the scope of the subpoena or the agreement
of the parties, it is clear that Minerals did not agree to give the
originals of the diaries to MSHA. In fact, the record supports the
opposite conclusion. Minerals emphatically requested their return and
the request should have been honored. Barkley was without authority to
take and withhold the diaries and his actions are extremely troubling.
Notwithstanding this conclusion, we do not perceive any fatal prejudice
to Minerals' case on the merits in this instance as a result of Barkley's
actions. In finding a violation, Judge Carlson noted that he relied on
other unrebutted evidence and that the diary entries were too vague to
be used. 5 FMSHRC at 676 n. 3.
D.

Minerals' request for sanctions

We have detailed our serious concern regarding several aspects of
the conduct of certain Department of Labor employees. Most troubling
are Barkley's taking and retention of documents belonging to the operator,
his misrepresentation to the judge as to the reason that he was excusing
witnesses, and Thompson's abuse of authority, his middle-of-the-night entry
into mine offices, and his taking mine documents. The record also
indicates that Weber's performance as Minerals' counsel significantly
contributed to the disruptions and in fact to some of the allegations of
improprieties now raised by Minerals. We have noted further the procedural
mismanagement of some aspects of this case by the Commission judge.
Minerals supports its arguments that sanctions should he imposed by
relying primarily on criminal cases involving the Fourth and Fifth
Amendments involving defendants' motions to exclude improperly obtained
evidence, and on a series of cases involving defendants' attempts to
have criminal indictments dismissed because of alleged prosecutorial

489

misconduct during grand jury investigations. We do not find these cases
controlling. As we have emphasized, Judge Carlson's decision on the
merits rests on adequate, independent grounds apart from the drawings
taken from the mine and the improperly retained diaries. Furthermore,
even courts dealing with the possible dismissal of criminal indictments
have required a showing that the alleged prosecutorial misconduct has
materially prejudiced the defendant's case. See, e.g., Laughlin v.
Unites States, 385 F.2d 287, 292 (D.C. Cir. 1967).----X:s explained above,
·we cannot conclude that the objectionable conduct of the Secretary's
representatives prejudiced Minerals' case on the merits, or affected the
substantive outcome of the citation and withdrawal order contest. We
believe, however, that the noted serious deficiencies in the performance
of the Secretary's personnel must be addressed. We find it appropriate
in this instance to address those deficiencies by strongly urging the
Secretary of Labor to review the noted objectiqnable performance by his
employees a~d to take appropriate remedial action to ensure that such
conduct by his representatives will not be repeated.
Accordingly, under all the circumstances of this case, we conclude
that sanctions or disciplinary proceedings before the Commission are
inappropriate.
III.

Conclusion
For the reasons set forth herein, we decline to impose the severe
sanction of dismissal sought by Minerals. We affirm Judge Carlson's
decision, and on the bases discussed above, we affirm Judge Boltz's
order denying sanctions against the Secretary. !:_/

Nelson, Commissioner

6/
Pursuant to ser.tion 113(c) of the Mine Act, 30 U.S.C. § 823(c), we
have designated ourselves as a panel of three members to exercise the
powers of the Commission in this matter.

490

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

April 18, 1986

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 82-152-R
WEVA 82-369

v.

WESTMORELAND COAL COMPANY

BEFORE:

Backley, Doyle, Lastowka, and Nelson, Commissioners
DECISION

BY THE COMMISSION:
This case arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act"). The issue is whether
a Commission administrative law judge abused his discretion by failing
to reduce, in his decision on remand, the civil penalty imposed for a
violation of 30 C.F.R. § 75.202, a mandatory roof control standard. For
the following reasons we conclude that the judge's penalty assessment
constitutes an abuse of discretion.
The complete factual background of this case is set forth in our
decision remanding this matter to the judge. 7 FMSHRC 1338 (September
1985). It is sufficient to note here that in his initial decision the
judge found that the foreman for Westmoreland Coal Company ("Westmoreland")
had knowledge of the violative condition but failed to correct it "through
indifference or lack of reasonable care." The judge concluded that the
violation was the result of the "unwarrantable failure of the operator
to comply with the law and .•• of gross negligence." 5 FMSHRC 132, 137
(January 1983)(ALJ). Considering this negligence finding, and the other
statutory civil penalty criteria set forth in section 110 (i) of the Mine
Act, 30 U.S.C. § 820(i), the judge assessed a civil penalty of $8,000.
5 FMSHRC at 137. The Commission granted Westmoreland's petition for
review.

491

On review, the Commission found that the judge's conclusion that
the violation was the result of Westmoreland's "unwarrantable failure"
not only "lack[ed] substantial support in the record" but was "contrary
to the overwhelming weight of the evidence." 7 FMSHRC at 1342. The
Commission stated that it "[could] not conclude that the foreman's
actions in allowing the work to proceed represent[ed] the degree of
aggravated conduct intended to constitute an unwarrantable failure under
the Act." The Commission also stated that "the violation .•. did not
result from Westmoreland's indifference, willful intent, or serious lack
of reasonable care." 7 FMSHRC at 1342. Consequently, the Commission
reversed the judge's unwarrantable failure finding. The Commission
concluded, "[b]ecause the judge's penalty assessment rested in part on
his determination that the foreman acted with indifference and without
reasonable care, the case is remanded to the judge for reconsideration
of the amount of civil penalty in light of our decision." 7 FMSHRC at
1343.
On remand, the judge acknowledged that the case was before him for
the purpose of reconsideration of the amount of the civil penalty in
light of the Commission's finding that the violation was not the result
of Westmoreland's "indifference, willful intent, or serious lack of
reasonable care." 7 FMSHRC at 1647 (October 198S)(ALJ). The judge
revised his original finding that the violation was caused by Westmoreland 1 s "gross negligence" and concluded instead that Westmoreland was
negligent. 7 FMSHRC at 1648. In spite of his conclusion that the
degree of Westmoreland's lack of care was less than originally found,
the judge again assessed a civil penalty of $8,000.
A Commission judge is accorded broad discretion in assessing civil
penalties under the Mine Act. This exercise of discretion, however, is
not unbounded. The penalty must reflect proper consideration of the
statutory penalty criteria. Sellersburg Stone Co., 5 FMSHRC 287, 290-94
(March 1983), aff'd 736 F.2d 1147 (7th Cir. 1984). When a judge's
penalty assessment is at issue on review, the Commission must determine
whether the penalty is supported by substantial evidence and whether it
is consistent with the statutory penalty criteria. Pyro Mining Co., 6
FMSHRC 2089, 2091 (September 1984). When the Commission, using this
standard, has concluded that the penalties assessed do not properly
reflect the penalty criteria, it has assessed new penalties as warranted
by the record. In some instances the resulting assessments have been
higher, e.g., Pyro Mining Co., supra, in others, the assessments have
been lower, e • . , United States Steel Corp., 6 FMSHRC 1423 (June 1984).
In all instances, the objectives have been the same: fidelity to the
record and effectuation of the enforcement scheme of the Act.
Here, the judge modified his prior finding of "gross negligence" in
light of our conclusion that the violation did not result from \·.restmoreland' s "indifference, willful intent, or serious lack of reasonable
care." His determination of an appropriate penalty to be assessed
necessarily should have been affected by his finding of a lesser degree
of negligence. Instead, the judge imposed the same penalty without
change. The judge's failure to modify the penalty in accordance with
his modified findings is unsupportable and an abuse of discretion.

492

In considering the other statutory penalty criteria, the judge
found that the violation reflected a high degree of gravity, that
Westmoreland was a large operator, that Westmoreland had a fairly
substantial history of previous violations, and that Westmoreland's
ability to continue in business would not be affected by the penalty
imposed. 5 FMSHRC at 137. These findings, which were not disturbed on
remand, are supported by substantial evidence. Based upon these findings,
and upon the finding of a lesser degree of negligence, we conclude that
a civil penalty of $5,000 is appropriate.
Finally, the violation of 30 C.F.R. § 75.202 was alleged i~ an
order issued under section 104(d)(l) of the Act. 30 U.S.C. § si4(d)(l).
Westmoreland requests that we modify the section 104(d)(l) order to a
citation issued under section 104(a), 30 U.S.C. § 814(a), because of our
previous reversal of the judge's finding of 11 unwarrantable failu~e." 7
FMSHRC at 1342. We conclude that the requested modification is appropriate.
See Consolidation Coal Co., 4 FMSHRC 1791, 1794 (October 1980).
Accordingly, we vacate the judge's assessment of a penalty of
$8,000 for the violation of 30 C.F.R. § 75.202 and assess a civil penalty
of $5,000. Further, we modify the subject order issued under section
104(d)(l) to a citation issued under section 104(a). ]:_/

J8yce~Doyle, Commi~

~ames

A. Lasto~

+L~
L. Clair Nelson, Commissioner

1/

Chairman Ford did not participate in the consideration or disposition

of this case.

493

Distrihution

John A. Macleod, Esq.
Crowell & Moring
1100 Connecticut Ave,, NW
Washington, D.C. 20036
Barry Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Scott L. Messmore, Esq.
Westmoreland Coal Company
P.O. Drawer A & B
Big Stone Gap, Virginia 24219
Administrative Law Judge Gary Melick
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

494

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

.

v.

.

HOMESTAKE MINING COMPANY,
Respondent

.

April 1, 19 8 6

CIVIL PENALTY PROCEEDING
Docket No. CENT 85-20-M
A.C. No. 39-00055-05537
Homestake Mine

DECISION
Appearances:

Margaret Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Robert A. Amundson, Esq., Amundson, Fuller &
Delaney, Lead, South Dakota,
for Respondent.

Before:

Judge Lasher

This matter arose upon the filing of a Petition for Assessment of Civil Penalty by Petitioner on February 13, 1985,
pursuant to Section llO(a) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. Section 820(a) (herein the Act).
Petitioner seeks assessment of a penalty against Respondent for
violation of 30 C.F.R. 57.9-16 l; which was described in Citation
No. 2097700 ~ssued August 29, 1984, as follows:
"On the 2150 level the main haulage line was not being
maintained in a safe condition the rail was loose with
the track spikes being pulled loose, fish plates loose
at the joints and track ties rotted creating a safety
hazard to persons who must use the main line to haul the
man trip, hauling personal (sic) to and from work places.
Heavy equipment travels the line hauling ore and materials to and from work areas a person could be seriously
injured should the haulage motor derail."

17

This regulation provides:
"Roadbeds, rails, joints, switches, frogs, and other
trackage elements on railroads subject to the control
of the operator shall be designed, installed and maintained in a safe manner consistent with the speed and
type of haulage."

495

On August 31, 1984, the Citation was rnodif ied to read:
11

0n the 2150 level main haulage line a section of railroad from the stairway entranance (sic) to the Green
light at the curve and another area from H2 fan to the
34a Sill x-cut was not being properly maintained in a
safe condition. The rail and rail spikes was pulled
loose from the track ties Fish plate Bolts loose, track
ties rotted to a point that spikes would not hold and
in some areas the rail was starting to lean to one side.
This condition creates a safety hazard for the motor
person who must travel this haulage line to haul personal (sic} to and from work places on the mantrip.
Deliver
materials and supplies to and from work places. The
motorperson must also haul with a 6 ton motor 6-10 ore
cars with a capacity of 3 tons each.
A train derailment
could cause serious injury to persons who must travel
this rail line many times during a shift."
The Citation, issued under Section 104(a) of the Act, also
charged that the violation was 11 significant and substantial"
(herein 11 8 & S 11 ) .
In Secretary v. Consolidation Coal Company, 6 FMSHRC 189
(1984), the Commission held that S & s findings may be made in
connection with a citation issued under Section 104(a) of the Act.
Considering this ruling in conjunction with U.S. Steel Mining
Company, 6 FMSHRC 1834 (1984), where the mine operator was allowed to contest S & S findings entered on Section 104(d)(l)
citations in a penalty case, it is concluded that S & S findings
contained in a Section 104(a) Citation similarly are properly
reviewable in this penalty proceeding.
The matter came on for hearing in Lead, South Dakota on
November 13, 1985. Both parties were ably represented.
The Secretary contends that Respondent did not maintain the
track in question in a safe manner, that the track in question
was deteriorating and in need of repair, that Respondent should
have known that the track was not being properly maintained and
was unsafe, that such violation was S & S, and that the penalty
assessment of $276.00 originally proposed administratively by the
Secretary should be assessed.
Respondent contends that the safety standard cited, 30
C.F.R. 15.9-16 is unconstitutionally vague, i.e., that it does
not give a mine operator fair notice of what is required to
maintain track in a safe manner consistent with speed and type of
haulage. Respondent also maintains that the Secretary failed to
prove a violation, and in the alternative if a violation is established that Respondent was not negligent in its commission,
that the violation was not S & S , and that the gravity thereof
was slight.

496

The pertinent factual events commenced on August 29, 1984,
when MSHA Inspector Jeran C. Sprague issued Citation No. 2097700
on a regular inspection of the Homestake Mine, during which he
was accompanied by Fred Bichler, shift foreman. (Tr. 14, 209).
The track on the 2150 level of this underground mine-where
the violation was observed by the Inspector-runs from one end of
the level to the other for approximately one mile and is used for
the transportation of men as well as materials (Tr. 15, 16, 60,
150). The Inspector felt that approximately 3000 feet of track
was not being properly maintained ~nd that 800 feet was in "bad
repair". (Tr. 61, 170). There is approximately 400 miles of
track in the entire mine (Tr. 91).
However, only three levels
were inspected on the lday the Citation was issued.
On the inspection day the Inspector observed Granby
ore-haulage cars on the track: these cars are approximately 7'
long, 5' wide and 5' high, carry 3-5 tons of ore, and are pulled
by 6-ton motors (locomotives)(Tr. 13, 16, 160, 174).
In
addition, the motors also pull man cars which are used to
transport 4 to 8 miners to and from their workplace at the
beginning and end of the shift (Tr. 18-21, 65, 150, 198, 204,
210, 327). Both ore-haulage cars and man cars move on iron
wheels and both are braked by the motor (Tr. 19, 79). The length
of track described in the Citation was "zero-grade", that is,
level (Tr. 17~-176).
Reliable and probative evidence of record established that
the following defects in the track existed at the time of
Inspector Sprague's inspection:
1. Loose rail (Tr. 24, 162-164, 188, Ex~ P-1). At one area
(near the H-2 fan) the track was spread more than 19 inches which
could cause derailment (Tr. 187, 188, 337).
2. An area along a wood track tie where the tie had been
moving back and forth (Tr. 26; Ex. P-2).
3. An area of track where a track spike was "pulled out"
and was not holding the rail in place on one side and where a
track spike on the opposite side of the rail was missing (Tr. 27,
28; Ex. P-3).
4. Areas of track where the wood track ties were rotted and
where track spikes were entirely missing on one track tie {Tr.
28, 29, 84, 85, 187, 188; Ex. P-4).
In abating the violative
conditiorl of the track, Respondent's track repairman, Dennis
Willuweit, replaced 25 to 35 ties out of a possible 480 present
in the 1000 foot section he worked on (Tr. 154, 172, 173, 201).

497

5. An area of track where the rail was misaligned because
the f ishplates 2; intended to hold two joint sections together
were loose (Tr.-29, 81, 133, 134; Ex. P-5).
6. A fishplate - broken in the middle - at an area of track
where two sections of rail were joined together with a deteriorated flange used to spike the rail (Tr. 30, 184, 185, 231; Ex.
P-6). As to this condition, Respondent's witness, track repairman Dennis Willuweit, conceded that the "worst place" a fishplate
could break was in the middle and that "with a fishplate broken
right in the middle, the joint could move enough to let a car
derail" (Tr. 184-186).
7. An area of track where the top flange of a piece of rail
was completely worn away and could break any time (Tr. 31,
278-283; Ex. P-7).
8. An area of track where the bolts holding a fishplate
were loose and also deteriorated to a point that the threads were
"gone" so that the bolts could not be tightened (Tr. 31; Ex.
P-8).

9. Rust, rotted ties, loose spikes and deterioration were
prevalent in various of the track areas mentioned above (Tr. 32,
73, 91, 94, 95, 185, 198-200, 215, 226, 233, 234). Inspector
Sprague summed up the general condition of the track in question
as follows:
"For the most part, there was either a loose section; spikes
missing; ties rotted out. There had been some areas on the far
end that had been repaired, some new installation" (Tr. 32, 33).
It is concluded from considerable probative evidence of
record showing the general condition of the track that it was not
being properly maintained and that work was not being done to
keep the track in a safe, manner CTr. 33, 35, 51, 66, 67, 96, 97,
212, 213, 226, 236). This situation had been allowed to continue
tlfor quite some time" (Tr. 35). Mine management knew or should
have known of the defective conditions since they travelled the
area daily and the condition had been reported to them CTr.
47-49, 213, 220, 274). Also, as part of his inspection, Inspector Sprague talked to a motorman and other miners who
indicated that the track had been in such condition .. for quite
some time". The motorman reported to Inspector Sprague that he

2/ A fishplate is a piece of angle iron approximately 3/4"
Ihick, 18 11 long and 1-1/2" wide which has four bolt holes. Fishplates, who purpose is to keep rail in alignment so that the
joints don't separate or move from side to side, are bolted to
each side of a rail CTr. 30, 63, 270).

498

was being derailed on a daily basis, "sometimes 3 and 4 times a
shift" and that he had not seen a trackman (track repairman) on
the 2150 level in months (Tr. 35-38).
Normally derailments result because of the condition of the
track (Tr. 82, 83, 206, 292).
Inspector Sprague gave this explanation of the cause of derailments:
"Just the normal condition of the track, with the
f ishplates being broken, not holding the joints together;
no track spikes in the ties; the rotted condition of
ties, which would, in no way, hold the rail in position,
and it could very easily cause misalignment of the joints
which could cause derailment." (Tr. 41).
Derailments are a relatively common occurrence at this mine
(Tr. 38, 82, 205, 261, 291). Usually, when a derailment occurs,
the equipment simply drops off the track (Tr. 83, 188, 283).
According to the Inspector, if the motor were to derail it would
probably stop instantly. On the other hand, if an ore car were
to derail, the motorman might travel half a mile before becoming
aware of it (Tr. 84). In this connection it should also be noted
that there were 3 curves in the track on the 2150 level which the
motorman could not see around (Tr. 191, 205).
The track in question is 18-gauge, that is, the distance
between the rails is 18 inches CTr. 22, 79, 155). The rails
themselves are 20 to 25 feet in length and are attached by spikes
to wood ties placed at 2-foot intervals along the track (Tr. 30,
41, 61, 62, 88, 285). Track gauge must spread to 19-20 inches
before derailment occurs, i.e., the equipment drops between the
rails (Tr. 155-158, 282); derailment can also occur if the rails
move inward to a gauge of 17 inches. Should this happen, the
equipment would drop .off to the outside of the rail (Tr. 158,
197).
.
As indicated heretofore the hazard posed by the track
detects described by the Inspector - the existence of which were
for the most part admitted by Respondent - was derailment of Cl)
the motor (locomotive>, (2) the trailing haulage cars, and/or (3)
the trailing man cars (Tr. 38, 39, 41, 42, 86, 292). Derailments
usually occur because of such track conditions (Tr. 82, 83, 206,
292, 294, 295), and it was very likely that such derailments
(accidents) would occur (Tr. 38, 41, 52, 106. 179, 187-188, 203,
205-206, 325, 334).
Track conditions and defects which cause derailments are
unsafe (Tr. 69, 114, 204-205, 236, 337-339, 343). Thus, should a
derailment occur when miners were being hauled on a man car
(mantrip) the miners could have been injured from being thrown
around in the man car, from being thrown out of the man car, from

499

being pinched between the man car and the rib, and/or being run
over (Tr. 41-43, 110-112, 236, 316-317). In addition, similar
injur:es could occur to a motorman while engaged in rerailing
derailed equipment (Tr. 43-46, 87, 109, 110) and to persons
standing or walking along the track at the time of a derailment
(Tr. 45, 113, 132, 195, 204). Such injuries could be serious or
even fatal (Tr. 46, 111-113, 314-317) and were reasonably likely
to occur as a result of a derailment (Ct. Exs. 1 and 2; Tr. 46,
132, 161-162, 198-200, 204-206, 240-244, 333-334, 347-348).
30 C.F.R. § 57.9-16 mandates that the track be maintained in
a safe manner consistent with speed of haulage. The estimates of
various witnesses and sources had considerable range. Although
at the hearing Respondent's witnesses testified that Respondent's
"policy" was that the motormen would not travel faster than-or
should slow down to (a) 2 mph (Tr. 151) or (b) 2 to 3 mph (Tr.
178), or (c) 4 mph (Tr. 179, 325), in correspondence to the
Secretary's counsel and to the undersigned prior to the hearing
{Ct. Exs. 1 and 2), Respondent's Director of Safety and Health
indicated that the following was one of the issues upon which it
built its case:
" ••• Speed of travel of the locomotive and cars would
never exceed 10 miles per hour with normal speed being
5-7 miles per hour."
Even accepting Respondent's evidence at the hearing that the
speed was 2, 3, or 4 mph, and I do not so find, the record establihes that the speed actually was left to the judgment or
discretion of the motorman who was supposed to slow down when men
were seen walking along the track or where track defects were
noted (Tr. 179, 203). It is clear that there were curves in the
2150 level track where the motorman could not see what was ahead
(Tr. 191, 204-205). In its post-hearing brief Cp. 3) Respondent
characterizes the speed at from 2-10 mph, and concedes that the
speed could be up to 10 mph. (Ct. Exs. land 2~ Tr. 116, 242).
Finally, Inspector Sprague guessed the speed at 6-7 mph (Tr. 22,
71), and the Secretary's expert witness, Michael Sheridan, based
his opinion on a speed of 5-7 mph (Tr. 117).~his latter speed
is well-supported in the evidence and provide~ a reasonable
foundation for the opinions and findings based thereon, particularly those of the Secretary's witnesses relating to the question
of the safety of the 2150 level track. Further, in the background of the entire record, the opinion of Inspector Sprague as
to the bearing of the speed factor on the question of track
safety is persuasive:
"It doesn't really matter what speed you're going. If
the rail is in a deteriorating condition, it could fall
off at any time. I don't think speed really has a bearing on it, as far as whether you go off the track or how
many could go off the track. 11 (Tr. 97).

500

The speed factor is found less decisive than the regulation's
second requirement that the track be maintained in a safe manner
consistent with "type of haulage".
In this connection, evaluation of the testimony of Respondent's witnesses reflects that
the quality of track maintenance varied throughout the mine and
that the track in areas of the mine where there was greater
production were better maintained (Tr. 179, 198-200 203, 273-274,
292, 319-320) than the track on the 2150 level and areas where
there was less production. The testimony of Mr. Willuweit in
this connection is significant:
"JUDGE LASHER:
Do you have an opinion of whether or not
the 2150 section--area of track that you performed these
repairs on after the citation was issued--whether that at
that time, was any different from most of the other track
areas of the mine?
THE WITNESS:

It was was-- it was a lot different than areas
that are used for mass haulage, where they have to move a
lot of rock, but it was similar to a lot of other areas of
the mine, where your use is minimal.
JUDGE LASHER:
Okay.
You're saying that, at this time, this
area of this track was used for what?
THE WITNESS: Basically, it was used to haul four to eight
men into their work area and out, and haul a few supplies
to them and haul a little bit of rock occasionally, and that
was it.

x

x

x

x

x

x

x

x

x

x

x

x

JUDGE LASHER:
So are you saying it was in a state of higher
repair than the areas that haul the ore? - or less repair?
THE WITNESS:

Less repair.

JUDGE LASHER:

And why would that be?

x

x

x

x

x

x

x

x

x

x

x

x

THE WITNESS:
It's not carrying the traffic. And if you
have a timber track off, and you're going at a reasonable
speed, basically it is--it is an in inconvenience.
Now, in an area where you are trying to get some work done
and you're trying to move rock and you have wrecked cars,
or derailments, then they start costing you money because
then they are affecting production; they're not affecting
just one man.
Instead of moving 300 to 400 ton of rock

501

that day, if they have derailments they may only move half
the rock, and that
fects the output of the rock at the
mine, so the levels where they have--where they move a lot
of rock, or where they move a lot of men, they move a lot
of supplies, they have to keep that in a lot better condition than you have to keep the levels where they just
don't use the track much." (Tr. 198-200).
The 1977 Mine Act is remedial legislation intended to
promote the sa
of miners. It would seem that the regulation's provision that track be maintained in a
manner
consistent with "type of haulage" if anything contemplates a
higher standard of maintenance on track where miners primarily
are being transported - such as the 2150 level - rather than the
lesser standard evidenced in this record.
It is concluded on the
basis of the various findings above that the rails and track
elements on the 2150 level were not maintained in a safe manner
consistent with the speed and type of haulage and that the
violation
cribed in the Citation did occur.
We next take up Respondent's contention that the cited
regulation is unconstitutionally vague and fails to give the mine
operator " ir notice" of what is required to maintain track "in
a safe manner consistent with the speed and type of haulage".
Such is found to lack merit and is rejected. Safety standards
such as 30 C.F.R. § 57.9-16 cannot be considered in a vacuum.
Generally when a safety regu1ation is examined for meeting due
process certainty requirements, it must be looked at "in light of
the conduct to which it is applied." Ray Evers Welding Co. v.
OSHRC, 625 F.2d 726, 732 (6th Cir. 1980). General terms such as
"unsafe" or "dangerous" appear frequently in federal safety and
health standards. This approach has been recognized as necessary
where narrower terms would be too restrictive. Standards, that
is to say, must often be made "simple and bri
in order to be
broadly adaptable to myriad circumstances." Kerr McGee
Corporation, 3 FMSHRC 2496 Cl981). In Alabama By-Products
Corporation, 4 FMSHRC 2128 (1982) the issue was whether the
Secretary could enforce a similarly worded standard requiring
machinery to be kept in "safe operating condition." The
Commission established the following test:
[I]n deciding whether machinery or equipment is in safe
or unsafe operating condition, we conclude that the
alleged violative condition is appropriately measured
against the standard of whether a reasonably prudent
person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any
facts peculiar to the mining industry, would recognize
a hazard warranting corrective action within the purview
of the applicable regulation.

502

Applying this test to the situation here, it is clear that a
reasonably prudent person familiar with the circumstances extant
on the 2150 level, including any facts peculiar to the mining
industry, would have recognized a hazard warranting corrective
action. The track defects were numerous. At least two of the
defects documented by the Inspector were admitted by Respondent's
witnesses to have been susceptible of causing a derailment in and
of themselves {Tr. 184-186, 187, 188, 231). The evidence of
general deterioration of the area of track involved and lack of
maintenance thereon was substantial.
A considerable body of
reliab
evidence in this record demonstrates the potential of
such track conditions, singly or in combination, to cause
derailments, and of derailments to cause significant injuries or
even fatalities.
The Secretary met its burden of establishing a
nexus between the widespread track problems and the effect such
would have on the safe operation of equipment on the track.
As
the Commission has noted in other contexts, and contrary to the
general thrust of Respondent's argument, the cited regulation,
requiring maintenance of a mine part in a safe manner, is aimed
at the elimination of potential dangers before they actually
become present dangers.
Here, some of the track conditions were
shown to have already become present dangers.
See Secretary v.
Pittsburg & Midway Coal Mining Company, 8 FMSHRC 4, 6 {1986).
Respondent's vagueness challenge is rejected.
The final question raised by Respondent is whether the
subject Citation cited a violation which was "of such nature as
could significantly and substantially contribute to the cause and
effect of a ••. mine safety or health hazard" as that phrase is
used in the Act.
The Commission has held that a violation is properly designated S & S "if, based on 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, 3-4 (January 1984), the Commission explained:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary of Labor must prove: (1)
the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard--that is, 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 in question will be of a reasonably serious
nature.
The Commission subsequently explained that the third element
of the Mathies formula "requires that the Secretary ~stablish a

503

reasonable likelihood that the hazard contributed to will result
in an event in which there is an injury," U.S. Steel Mining Co.,
6 FMSHRC 1834, 1836 (August 1984), and also emphasized that, in
accordance with the language of section 104(d){l), it is the
contribution of a violation to the cause and effect of a hazard
that must be S & S. See 6 FMSHRC at 1836.
It has previously been determined that a violation occurred,
that the failure to maintain the track in a safe manner contributed to the cause and effect of a s ety hazard, i.e., a
derailment accident, that it was likely that such derailments
would result in injuries, and that there was at least a reasonable likelihood that such injuries would be of a reasonably
serious nature or fatal. The record indicates several injuries,
including a severed finger, which resulted, directly or indirectly, from derailments in the past. The fact that more
serious injuries - or fatalities - have so far been avoided is
fortunate, but not determinative. Secretary v. Ozark Mahoning
Company, 8 FMSHRC
, Docket No. LAKE 84-96-M, (decided
February 28, 1986). See also Secretary v. U.S. Steel Mining Co.,
Inc., 7 FMSHRC 327, 329 (1985).
It is concluded that the violation was properly designated S & S.
There remains the determination of an appropriate penalty.
Based on stipulations of record, it is found that the Respondent
is a large gold mine operator (Tr. 221) with a payroll of
approximately 1,350 employees at its mine near Lead, South
Dakota; that a reasonable penalty assessment will not jeopardize
its ability to continue in business; and that upon notification
of the violation it proceeded in good faith to promptly abate the
violative conditions cited (Tr. 8, 9, 93). The Secretary's
evidence with respect to Respondent's history of violations
reflects 253 violations during the 2-year period prior to the
issuance of the subject citation. Absent further explication or
characterization thereof in the record, and in view of the mine's
size it is concluded that such is a moderate history of prior
violations and that such mandatory penalty assessment criterion
should provide no basis for increasing the penalty amount
otherwise warranted. Based on the findings specified above it is
further found that (1) this was a relatively serio~s violation
and (2) that Respondent's management was aware ~f the defective
condition of the track at the 2150 level and failed to exercise
reasonable care in not recognizing the hazards posed thereby and
in not maintaining the track in a safe manner. This constitutes
ordinary negligence.
After weighing these various assessment considerations and
it appearing that Respondent's belief that the various defective
track conditions did not amount to unsafe track was sincerely
advanced, a penalty of $300.00 is found to be appropriate.

504

ORDER
Citation No. 2097700 is affirmed in all respects.
Respondent shall pay the Secretary of Labor within 30 days from
the date hereof the sum of $300.00 as and for a civil penalty.

~~)t#b d', M~;v fa_
Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department
Labor, 1585 Federal Building, 1961 Stout Street, Denver,
CO 80294
(Certified Mail)
Robert A. Amundson, Esq., Amundson, Fuller & Delaney, 203 W.
Main, P.O. Box 898, Lead, SD 57754 (Certified Mail)

/blc

sos

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

April 2, 1986

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 84-134-M
A.C. No. 48-00155-05502 K28

v.

Docket No. WEST 85-170-M
A.C. No. 48-00155-05503 A K 28

BIG HORN CONSTRUCTION CO.,
BERNARD BANKS,
BRUCE PARKER,
JAMES WAGAMAN,
Respondents

Docket No. WEST 85-171-M
A.C. No. 48-00155-05504 A K28
Docket· No. WEST 85-172-M
A.C. No. 48-00155-05505 A K28
(Consolidated)
Alchem Mine

DECISION APPROVING SETTLEMENT
Before:

Judge Morris

These consolidated cases are civil penalty proceedings
initiated by the petitioner against the respondents pursuant to
Section 110 of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 820.
Prior to a hearing the petitioner filed a motion seeking ·
approval of a settlement agreement entered into 9Y the parties.
lo The agreement
lects that at the time of the alleged
violations respondent Big Horn Construction Company (Big Horn)
was the corporate contractor-operator of the Alchem Mine, a trona
mine in Sweetwater County, Wyoming. Further, respondent Bernard
Banks (Banks) was acting as master mechanic at the mine and as
agent for Big Horn; respondent Bruce Parker (Parker) was acting
as foreman at the mine and as an agent for Big Horn; and
respondent James Wagaman (Wagaman) was acting as project manager
at the mine and as an agent for Big Horn.
2. In WEST 84-134-M respondent Big Horn is charged under
section llO(a) of the Act, in Citation No. 2083234 and Order No.
2083235, with violating the mandatory safety standard published
at 30 C.F.R. ~ 57.14-36.
3. In WEST 85-170-M respondent Banks is charged under
section llO(c) of the Act with knowingly authorizing, ordering,
or carrying out the two foregoing violations as an agent of Big
Horn.

506

4. In WEST 85-171-M respondent Parker is charged under
section llO(c) of the Act with knowingly authorizing, ordering,
or carrying out the same two violations as an agent of Big Horn.
5. In WEST 85-172-M respondent Wagaman is charged with
knowingly authorizing, ordering, or carrying out the same two
violations as an agent of Big Horn.
6. The citations, the original assessments and the proposed
dispositions for the violations of 30 C.F.R. § 57.14-36 are as
follows:

Res2ondent
Big Horn
Banks
Parker
Wagaman

Citation
Order
Number
2083234
2083235
2083234
2083235
2083234
2083235
2083234
2083235

&

Assessment
$ 800
1,000
500
600
600
700
700
800

Settlement
$ 800
1,000
375
450
450
525
525
600

The proposed settlement constitutes a payment in full of the
originally proposed civil penalties against Big Horn and a 25%
reduction of the originally proposed civil penalties against the
three individual respondents.
Discussion
In support of their proposed settlement the parties have
submitted information relating to the statutory criteria for
assessing civil ~enalties as set forth in 30 u.s.c. § 820(i).
I have reviewed the proposed settlement and I find it is
reasonable as well as in the public interest. The agreement
should be approved.
Accordingly, I enter the following:
ORDER
1.

The settlement agreement is approved.

2. Citation No. 2083234 and Order No. 2083235, as modified,
are affirmed as to the respondents in all consolidated cases.
3. In WEST 84-134-M the proposed civil penalty of $1,800
against respondent Big Horn is affirmed.
4. In WEST 85-170-M a civil penalty of $825 is assessed
against respondent Bernard Banks.

507

5. In WEST 85-171-M a civil penalty of $975 is assessed
against respondent Bruce Parker.
6.
In WEST 85-172-M a civil penalty of $1,125 is assessed
against respondent James Wagaman.

Law Judge
Distribution:

J. Philip Smith, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
David C. Jones, Esq., Big Horn Construction Company, 1000 Kiewit
Plaza, Omaha, NE 68131 (Certified Mail)

/blc

508

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

April 3, 198G
CIVIL PENALTY PROCEEDING

..
..

v.

Docket No. LAKE 85-47
A.C. No. 33-02929-03505
North Mine

:

WILMOT

MINING COMPANY,
Respondent

:

DECISION
Appearances:

Patrick M. Zohn, Esq., Office of the Solicitor,
U.S. Department of Labor, Cleveland, Ohio, for
Petitioner;
Thomas Eddy, Esq., Eddy & Osterman, Pittsburgh,
Pennsylvania, for Respondent

Before:

Judge Fauver

The Secretary of Labor brought this action for civil
penalties under section lOS(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801, et seq. Having
considered the hearing evidence and the record as a whole,
I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following:
FINDINGS OF FACT
1. At all relevant times, Respondent operated a strip
mine known as North Mine, which produced coal for sale or
·use in or substantially affecting interstate commerce.

2. On May 25, 1984, at about 2:00 p.m., a vehicle
accident occurred in the 001-0 pit of the North Mine,
resulting in the death of John D. Schrock, who was the pit
foreman.
3. Schrock was operating a Terex 72-41 front-end
loader on a pit road that had a 20% grade. As he was exiting
the pit, he stopped about 100 feet from the pit bottom and
began to back up, to make room for a descending coal truck.
Schrock's vehicle rolled backward downhill, went off the
road, struck the face of the highwall, and rolled over.

509

4. The vehicle did not have a rollover protactive
structure. The cab roof was crushed and Schrock was fatally
injured when the vehicle rol
over.
5.
because

The vehicle rolled downhill and went out of control
did not have adequate brakes.

6. On May 24, 1984, the day before the accident,
Schrock
his regular vehicle, a 510 International Harvester
front-end loader, in the pit so that a part could be removed
for repair. A short time before May 24, Schrock told the
General Manager, Harold Bain, that he was having starter
trouble on his 510 International Harvester. Bain
that
whenever Schrock was ready, he would take the starter to
Dover "and
the electrial people rebuild" it (Tr. 86).
He also said that a 910 Caterpillar was available
Schrock's
use and that, when the starter finally gave out, Schrock
should "go to the garage, and
the 910 Caterpillar" (Tr;
86). However, Schrock decided to use another vehi
as a
substitute, a Terex 72-41 front-end loader.
7. The Texex 72-41 loader was not equipped with a
rollover protective structure. Schrock's regular vehicle,
the 510 International Harvester, and the vehicle
by
Bain, the 910 Caterpillar, were both equipped with a rollover
protective structure.
8. Schrock made several trips into the pit with the
Terex 72-41 loader on May 25. At about 7:00 a.m., the pit
crew went to their work areas. Schrock met Glen Shoup, a
front-end
operator, at
pit about 7:20 a.m., and
discussed plans for loading coal from the pit. Shortly
thereafter, Schrock used the Terex 72-41 loader in the pit
to clear overburden from the coal seam so Shoup could load
coal into coal trucks. Schrock left the pit about 10:00
a.m., using the Terex 72-41 loader for transportation, and
drove to another part of the mine. He returned with the
loader to continue the clearing process in the pit two other
times, and
t to travel to other areas of the mine.
9. On May 25, not very long before the accident, Bain
saw Schrock with the Terex 72-41 loader near the road to the
pit and gave him the employees' paychecks to deliver in the
pit. He knew, or by the exerc
of reasonable judgment
should have known, that Schrock would use the Terex loader
to go into the pit to deliver the checks. Bain also knew
that the Terex 72-41 loader did not have a rollover protective
structure.

510

10. About 1:45 p.m., Schrock drove the Terex 72-41
loader to the parking area near the entrance to the pit. He
saw a mechanic, Ralph Hoover, and told him that he was
having brake trouble. Hoover went to get tools to check the
brakes, but Schrock drove off before Hoover could inspect
the brakes. Schrock then drove into the pit, where the
accident occurred about 2:00 p.m.
11. Bain was in charge of annual refresher training at
the mine. However, he conducted no refresher training in
1982, in 1983, or in 1984 up to the date (May 26) when the
Federal inspection team requested to see the annual refresher
training records. Bain did not provide refresher training
in those periods because in his opinion there were not
enough miners to justify the expense of a training class.
12. Following an investigation of the fatal accident;
Federal Mine Inspector Ray Marker issued three citations
charging violations of mandatory safety standards:
a.

Citation 2327028, charging a
violation of 30 C.F.R. § 48.28
(requiring a minimum of 8 hours
annual refresher training for
each miner) •

b.

Citation 2327029 charging a
violation of 30 C.F.R. § 77.403a(a)
(requiring rollover protective
structures on front-end loaders) .

c.

Citation 2327030, charging
a violation of 30 C.F.R.
§ 77.1605(b) (requiring adequate
brakes on mobi
equipment) .

13. Respondent is a small operator. At the time of the
citations, Respondent employed 14 miners, producing about 300
tons of coal a day.
14. In each instance, Respondent made a good faith
fort to achieve rapid compliance after a violation was
charged in the above-cited citations.

511

15.
In the 2-year period before the citations
involved here, Respondent had three paid violations at
the North Mine.
DISCUSSION WITH
FURTHER FINDINGS
Citation 2327028
This citation alleges that Respondent's 14 miners did
not receive the required 8 hours refresher training in 1982
or 1983, in violation of 30 C.F.R. § 48.28(a), which provides:
Each miner shall receive a minimum
of 8 hours of annual refresher training as
prescribed in this section.
Respondent acknowledges that there was no refresher
training of its miners in 1982 or 1983, but it argues, among
other things, that:
(1)

The regulation impliedly requires that
a miner be employed at least 12 months
to be covered by the annual refresher
training provision.

(2)

The Secretary has not shown that any
of the 14 miners was a covered miner,
ioe., not an exempt supervisor, and
was employed at least 12 months
without training.

This argument is not persuasive.
The Secretary made a
prima facie case
a violation by showing that 14 miners
were employed at the time of the inspection, that the mine
was a going concern in 1982 and 1983, and that no refresher
training was conducted for any miner in 1982 or 1983. Respondent
did not rebut this prima f acie case by any evidence that
there were no covered miners in 1982 or 1983 or that the
required training was in fact conducted.
Instead, Respondent's
evidence showed that refresher training was not conducted
for over two years because the General Manager was waiting
for a larger employment body (than just a few miners) to
justify, in his opinion, the expense of refresher training.

512

However, the training regulation requires annual training
for "each miner," and does not provide' an exemption based on
the number of miners employed.
Respondent further argues that the regulation is
unconstitutionally vague as to the type
refresher training
required.
This argument is rejected.
Section 48.28(a)
requires refresher training "prescribed in this section,"
and section 48.28(b} spells out in ample detail the type of
refresher training required.
Finally, Respondent contends that the proposed penalty
of $500 is "grossly excessive and unreasonable as a matter
of law." This contention is apparently based upon the
ground that Schrock, as a supervisor, was not subject to the
refresher training requirement and, therefore, a violation
of section 48.28(a) had no connection with the fatal accident.
This argument does not render the violation nonserious.
The
requirements of section 48.28 are at the heart of a preventive
safety and health program for miners. Failure to provide
the required training (see section 48.28(b}) could jeopardize
each miner and expose other persons to dangers that could
result from a failure to follow the safety, health, and job
rules involved in the refresher training.
Respondent has
demonstrated a negligent, lax, and wholly unjustified attitude
toward this mandatory and important safety and health training
requirement. Considering all of the six criteria for civil
penalties in section llO(i) of the Act, I find that a penalty
of $500 is appropriate for this violation.
Citation 2327029
This citation charges a violation of 30 C.F.R. § 77.403a(a),
which requires that "All rubber-tired •.. front-end loaders
••. that are used in surface coal mines or the surface work
areas of underground coal mines shall be provided with
rollover protective structures ..•• "
It is undisputed that Schrock operated a front-end
loader that had no ROPS, drove it into the pit, and was
fatally injured when the vehicle rolled over and crushed
him.
Respondent contends, among other things, that:

513

1.

John Schrock willfully acted in
contravention of his job responsibilities
as mandated by the operator when he operated
the Terex loader in the pit.

2.

This act of malfeasance was unforseeable by
the operator.

3.

John Schrock risked injury only to himself
by operating the Terex in the pit.

4.

The operator was not negligent as a matter
of law.

I find that the General Manager knew that Schrock was
operating a vehicle without ROPS when he gave Schrock paychecks
to be delivered in the pit and that he knew or should have
known that it was probable that Schrock would drive that
vehicle (the Terex) into the pit to deliver the paychecks.
Respondent was therefore negligent in allowing Schrock to
the Terex in the pit. 'Because of the gravity of
s violation, I find that this conduct was gross negligence.

Apart from Bain's action in allowing Schrock to
the Terex into the pit, Schrock himself was grossly negligent
driving the Terex into the pit.
Because Schrock was
a
sor representing Respondent, his gross
is
imputed to Respondent.
The gravity of this violation -- ,operating a front-end
in a coal pit without ROPS -- is most
because,
the event of an accident, a rollover could
in the
death or serious injury of the vehicle driver.
Considering all of the six criteria in
for assessing civil penalties, I find that a
of $2,000 is appropriate for this violation.

llO(i)
penalty

Citation 2327030
This citation charges a violation of 30 C.F.R. § 1605(b),
which provides:

514

Mobile equipment shall be equipped with
adequate brakes, and all trucks and front-end
loaders shall also be equipped with parking
brakes.
About 15 minutes before the fatal accident, Schrock
drove the Terex front-end loader into the equipment parking
area and told a mechanic that he was having brake problems.
However, before the mechanic could get his tools and come
back to examine the brakes, Schrock drove off and entered
the pit knowing he had defective brakes. A careful test
of the brakes after the accident showed that the brakelines,
wheel cylinder and hydraulic brake fluid lines were all
intact, i.e., they had not leaked because of the accident,
but the master cylinder and auxiliary brake cylinder
were very low in brake fluid. When the brakes were tested··
on level ground, it took 36 feet to stop with the amount of
fluid found after the accident, but when fluid was added to
the normal level, it took only five to ten feet to stop.
On a steep road, such as the pit road with a 20% grade, the
Terex loader would have virtually no brakes at all. At the
hearing, the General Manager, Bain, testified that Schrock's
act of driving the Terex on the pit road, with effectively
no brakes, was, in Bain's opinion, tantamount to suicide.
Schrock knew that the brakes were defective, and told
the mechanic about the problem. However, for some unknown
reason he drove off before the mechanic could inspect the
brakes.
I find that Schrock 1 s act of driving the Terex into the
pit with known defective, brakes was an act of gross negligence
which greatly endangered himself and other persons who
might have been injured in an accident involving the
Terex. Because of his supervisory position, Schrock's
gross negligence is imputed to R~spondent.
Considering all of the six criteria in section llO(i)
for assessing penalties, I find that a civil penalty of
$5,000 is appropriate for this violation.
CONCLUSIONS OF LAW
1.

The Commission has jurisdiction in this proceeding.

2. Respondent violated 30 C.F.R. § 48.28(a) as charged
in Citation 2327028. Respondent is ASSESSED a civil penalty

515

of $500 for this violation.
3. Respondent violated 30 C.F.R. § 77.403a(a) as
charged in Citation 2327029.
Respondent is ASSESSED a civil
penalty of $2,000 for this violation.
4.
Respondent violated 30 C.F.R. § 77.1605(b) as
charged in Citation 2327030.
Respondent is ASSESSED a
civil penalty of $5,000 for this violation.
ORDER
Respondent shall pay the above civil penalties in the
total amount of $7,500 within 30 days of this Decision.

/.1Ji..,;__ ~v~·

~illiam Fauver

Administrative Law Judge

Distribution:
Patrick M. Zohn, Esq., U.S. Department of Labor, Office of
the Solicitor, 881 Federal Office Building, 1240 East Ninth
Street, Cleveland, OH 44199 (Certified Mail)
John D. Eddy, Eaq., Eddy & Osterman, 1430 Grant Building,
Pittsburgh, PA 15219 (Certified Mail)
kg

516

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

April 4, 1986'
CIVIL PENALTY PROCEEDING
Docket No. KENT 83-212
A.C. No. 15-10339-03516

v.

No. 11 Mine

PYRO MINING COMPANY,
Respondent
DECISION
Appearances:

Carole M. Fernandez, Esq., Office of
the Solicitor, U.S. Department of
Labor, Nashville, Tennessee, for
Petitioner;
Steven P. Roby, Esq., Pyro Mining Company,
Providence, Kentucky, for Respondent

Before:

Judge Fauver

This case was remanded by the Sixth Circuit Court of
Appeals for reconsideration of the civil penalty assessments
and for findings on the factors whether the penalties assessed
would affect Pyro's ability to continue in business and
whether Pyro demonstrated good faith in attempting promptly
to abate the violations.
I find from the record that, with regard to each of the
charges, Respondent abated the violative condition promptly
after receiving notice from MSHA. Therefore, there was good
faith in attempting to achieve prompt abatement of the
violations; I considered this fact in my original assessments.
I also find from the record that Respondent is a large
operator, a fact which I considered in my original assessments.
At the time of the citations, the No. 11 mine employed 288
miners and had a daily production of 3,500 tons.
Pyro No.
11 is one of many mines owned by Pyro Mining Company.

517

Financial hardship or an adverse business impact of
civil penalties is an affirmative defense, but such was not
raised by Respondent.
Respondent made no claim or argument,
nor was there any evidence or indication, that any penalties
asses
would have an adverse effect upon Pyro's ability to
continue in business.
Indeed, Respondent acknowledges the
absense of such defense in its brief on remand, by stating
that it "will not be submitted that Pyro ·Mining Company will
be unable to continue in business or that it must cut back
its operation by paying either the $7,000.00 originally
proposed to be assessed or the $12,000.00 actually assessed"
(Resp. Br. p . 2) .
In summary, I find that:
{l)

Good faith was demonstrated by
Respondent in attempting to
achieve prompt abatement of
each relevant violation after
notice of the violation by MSHA.

(2)

The civil penal
assessed
in this case will not have
an adverse
ect on
Respondent's ability to continue
in business.

Both of the above facts are clear as a matter of record, and
they were considered by me
reaching my original penalty
assessments. The civil penalties assessed in my original
decision as to the violations affirmed by the Sixth Circuit
are therefore not changed
this decision on remand.
With respect to the remaining charge {Citation 2075924),
for a violation of 30 C.F.R. § 75.1725(a), the Court reversed
my finding of gross negligence and indicated that no negli~ence
could be found since I found that Respondent was not negligent
before the accident occurred.
of negligence does not preclude a finding of a
violation under this statute.
I find that Respondent violated
the
standard as charged because a defective transformer
was used before and after the accident, up to the
MSHA
notified Respondent of the violation.
In compliance with the
Court's decision, I find that this violation was not due to

518

negligence by the operator.
Inasmuch as negligence is one
of the six statutory criteria for a civil penalty, the absence
of negligence warrants a major reduction in my original penalty
of $5,000 for this violation.
In full consideration of the
other five statutory criteria, including my original finding
of high gravity of this violation, which contributed to a
fatality, I find that a penalty of $1,000 is appropriate
for this violation,
·
In summary, on remand I ASSESS Respondent the following
civil penalties:
Citation

Civil Penalty

2075924
2075231
2075232
2075233

$1,000
7,000
5,000
200
$13,200
ORDER

WHEREFORE IT IS ORDERED that Respondent shall pay the
above-assessed civil penalties in the total amount of
$13,200 within 30 days of this Decision.

t);u,,;,.._
~VU\._
William Fauver
Administrative Law Judge
Distribution:
Carole M. Fernandez, Esq., U.S. Department of Labor, Office
of the Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashvil
TN 37230 (Certified Mail)
Steve Robey, Esq., The Traders Building, 608 East Main
Street, Providence, KY 42450 (Certified Mail)
kg

519

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE. SUITE 400

DENVER. COLORADO

80204

April 4, 1986

SECRETARY OF LABOR,
MINE SA~ETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 85-45-M
A.C. No. 42-01760-05504

v.

Anderson Milling

ANDERSON MILLING COMPANY,
Respondent
DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Mr. J.L. Anderson, Anderson Milling Company, Woods
Cross, Utah,
E.E..Q se.

Before:

Judge Morris

This case, heard under the provisions of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., Cthe
Act), arose from an inspection of respondent's lime processing
plant on September 7, 1984. On that date a federal mine
inspector issued a citation for the violation of a safety
regulation promulgated by the Secretary of Labor pursuant to the
Act. The respondent, Anderson Milling Company, contested the
Secretary's petition for the imposition of a civil penalty.
The case was heard in Salt Lake City, Utah on February 12,
1986 with both sides presenting evidence.
Neither parties
desired to file post-trial or other post-hearing submissions.
Issues
The issues are whether respondent violated the regulation;
is so,.what penalty is appropriate.

520

Citation 2358836
§

The above citation alleges respondent violated 30 C.F.R.
56.14-1. The cited regulation provides as follows:
§

56.14

Use of Equipment

Guards
56.14-1 Mandatory. Gears; sprockets; chains, drive,
head, tail, and takeup 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.
Summary of the Case
On the day of his visit to the worksite Edward Cordovo Soto,
a federal mine inspector, found that the head pulley of respondent's elevated conveyor should have been guarded.
Pinch
points were formed where the conveyor belt goes over the roller
{Tr. 13-15). The pinch points were an arm's length, about 18
inches, from an adjacent platform that provided access to the
area (Tr. 14, 15). The operator's employees indicated there had
been some spills; in addition, wire and wood could have become
entangled in the machinery (Tr. 14). Maintenance would also be
performed in the area of the pinch points (Tr. 15, 16).
Witness Anderson, citing his answer filed in the case,
testified that other federal inspectors had not considered the
pinch points to be a problem (Tr. 30).
In addition, this
particular item had been previously approved for safety (Answer).
The company has been accident free.
This particular conveyor only runs six minutes out of 24
(Tr. 28, 31).
Discussion
The evidence establishes that the pinch points were exposed
moving parts. Further, a workman doing maintenance would be
within 18 inches of this hazard. He could become entangled in
the pinch points. The potential for a fatality or serious injury
existed in these circumstances.
Respondent also asserts that a previous MSHA inspector
approved the lack of a guard at this location.
In short, respondent invokes the doctrine of collateral estoppel against MSHA.
I have previously refused to apply the doctrine in similar
circumstances. MSHA inspectors have different areas of ex-

521

pertise; another inspector may not believe this condition was a
violation of the regulation.
The doctrine of collateral estoppel
cannot be invoked to deny miners the protection of the Mine
Safety Act. Servtex Materials Company, 5 FMSHRC 1359 (1983);
Kennecott Minerals Company, 6 FMSHRC 2023, 2028 (1984). See also
the Corrunission decision concerning estoppel in King Knob Coal
Company, Inc., 3 FMSHRC 1417 (1981).
The citation should be affirmed.
Determination of an Appropriate Penalty
Section llOCi) of the Act requires the Commission, in
penalty assessments, to consider the operator's size, its
negligence, its good faith in seeking rapid compliance, its
history of prior violations, the effect of a monetary penalty on
its ability to remain in business, and the gravity of the
violation itself.
The evidence shows that respondent is quite small with only
one or two employees.
It further shows that the operator's
negligence is low inasmuch as the photographs indicates this
location is not open and obvious.
The operator established good
faith in that it rapidly abated .the violative condition. The
company had four prior violations in the two-year period before
September 6, 1984. The evidence further indicates that the
company discontinued operations for a two month period beginning
the week before the hearing. This was an annual downturn. The
gravity of the violation is severe if an accident should occur.
On balance, I deem that a penalty of $25 is appropriate.
Conclusions of Law
Based on the entire record and the factual findings made in
the narrative portion of this decision, the following conclusions
of law are entered:
1.

The Commission has jurisdiction to decide this case.

2.

Respondent violated 30 C.F.R. § 56.14-1.

3. The contested citation should be affirmed and a penalty
assessed therefor.
ORDER
Based on the foregoing facts and conclusions of law I enter
the following order:
1.

Citation 2358836 is affirmed.

522

2.

A civil penalty of $25 is assessed.

3. Respondent is ordered to pay the sum of $25 to MSHA
within 40 days of the date of this decision.

Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 {Certified Mail)
Mr. J. L. Anderson, Anderson Milling Company, 2116 South 750
West, Woods Cross, UT 84087 (Certified Mail)

/blc

523

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

April 7, 1986

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 86-43
A. C. No. 36-00917-03607
Lucerne No. 6

v.
HELVETIA COAL COMPANY,
Respondent

DECISION APPROVING SETTLEMENT
Before:

Judge Merlin

The Secretary of Labor has moved for an approval of the
settlement reached in this case with the operator. The original
assessed penalty was for $900. The proposed settlement is for
$600.
One violation is involved. On August 26, 1985, a Mine
Safety and Health Administration inspector discovered that there
were no self-rescuer devices stored in the No. 4 intake entry,
the designated intake escapeway for this mine. The inspector
issued Citation No. 2406371, charging a violation of 30 C.F.R.
§ 75.1101-23. Section 75.1101-23 provides, in part, that an
operator submit a plan for emergency evacuation procedures with
its local MSHA District Manager. Section 75.1714-2(e) provides
that this plan for emergency evacuation procedures may assign an
area where the self-rescuer devices are to be stored. This section applies when the self-rescuers are to be stored more than 25
feet away from where the miners are working. In this case the
assigned area was the No. 4 intake entry. The self-rescuers had
been stored, instead, in an area known as the "kitchen," where
the miners took their breaks and stored their personal items.
After the citation was issued, the self-rescuers were immediately
moved to the proper intake escapeway.
The violation was serious. In an emergency, the miners
might have difficulty locating their self-rescuers. However, the
Solicitor advises that in this case the miners were aware that
the self-rescuers were stored in the kitchen. The kitchen was in
an air-intake area and it was the designated gathering point for
miners in case of emergency before entering the intake escapeway.
Accordingly, g~avity is somewhat less than originally thought
and the recommended settlement remains a substantial amount which
accords with the statutory purposes. I also determine that the
sett 1 ement ·is proper In 1 i ght of the rest of the criteria in
section llO(i) as represented by the Solicitor.

524

Accordingly, the proposed settlement is Approved and the
operator is OROERED TO PAY $600 within 30 days of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
David T. Bush, Esq., Office of the Solicitor, U. S. Department of
Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
William M. Darr, Esq., Helvetia Coal Company, Box 729, Indiana,
PA 15701 (Certified Mail)
Michael H. Holland, Esq., UMWA, 900 15th Street, N.W.,
Washington, DC 20005 (Certified Mail)
I gl

525

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

April 7, 1986

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
EARL KENNEDY,
LARRY COLLINS,
Complainants

:

DISCRIMINATION PROCEEDING

:

:
:

Docket No. VA 85-32-D
MSHA Case No. NORT CD 84-7

:

. Mine No. 1
:
:

v.

.
.
.

RAVEN RED ASH COAL
CORPORATION,
Respondent

.

DECISION
Appearances:

Sheila K. Cronan, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia, for the Complainants~
Daniel R. Bieger, Esq., Copeland, Molinary &
Bieger, Abingdon, Virginia, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint filed
by the complainants against the respondent pursuant to section

105(c) of the Federal Mine Safety and Health Act of 1977. The
complainants contend that they· were· discharged from their
employment with the respondent because of their purported
refusal to work under unsupported roof. The respondent maintains that the complainants voluntarily quit their jobs and
were not discharged for refusing to work under the alleged
unsafe roof conditions. A hearing was held in Abingdon,
Virginia, and while MSHA filed a posthearing brief, the respondent did not. I have considered MSHA's arguments, as well as
the arguments made by the respondent's counsel during the
hearing.

526

Issues
The issue presented in this case is whether or not the
complainants were in fact discharged for refusing to work
under unsafe conditions. Assuming a finding of a violation
of section 105(c) of the Act, an additional issue is the
amount of the civil penalty which should be imposed on the
respondent for the violation.
Applicable Statutory and Regulatory Provisions
1.

30

The Federal Mine Safety and Health Act of 1977,

u.s.c. § 301 et seq.

2. Sections 105(c)(l), (2) and (3) and llO(a) and Cd>
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§§ 815(c)(l), (2) and (3).
3.

Commission Rules, 29 C.F.R. § 2700.1 et seq.

Stipulations
The parties stipulated to the following:
1. The respondent was the owner and operator of the
mine in question.
2. The respondent was a corporation under laws of the
State of Virginia, and the mine was subject to the Act.
3o The complainant Larry Collins was employed by the
respondent as a scoop operator from August 13 to August 23,
1984, and was a "miner" as that term is used in the Act.

4. The complainant Earl Kennedy was employed by the
respondent as a scoop operator from August 14 to August 23,
1984, and was a "miner" as that term is used in the Act.
5. As of August 2 3, 19 84·, the daily coal production at
the subject mine was 250 tons.
6.

The mine is a non-union mine.

Complainants' Testimony and Evidence
Roger Lee Clevenger testified that he is employed by
MSHA as a mine inspector and roof control specialist working
out of the Grundy field office. He testified as to his background, experience, and duties and confirmed that he has

527

inspected the mine. He identified the mine as a drift mine
with one working section, and stated that mining is done by
the continuous miner method (Tr. 8-11).
Mr. Clevenger identified exhibit C-1 as the approved
mine roof-control plan and he confirmed that he assisted the
respondent in the formulation of the plan. He confirmed that
an initial plan providing for full roof bolting for a full
pillar recovery was first formulated for the mine in question
in approximately April, 1983, and at that time the mine was
operated by the Virginia-West Virginia Mining Company. The
August, 1984, plan is fully applicable to the present
owner-respondent, and the prior plan simply reflected ownership by Virginia-West Virginia. He confirmed that he updated
the plan to reflect ownership by Raven Red Ash Coal Corporation, and that he conducted a mine inspection in connection
with the plan on August 3, 1984, at which time the mine was
operating with a continuous miner engaged in retreat mining
(Tr. 11-14).
Mr. Clevenger explained the procedures involved in
retreat pillar extraction, and he stated that once the mine
is advanced on either 60 or 70 foot centers, the pillars are
extracted on the retreat cycle in an effort to remove all of
the coal. He identified exhibit C-2 as the applicable full
pillar recovery portion of the current plan (Tr. 16). He
explained the mining sequence required by the plan, and confirmed that Plan A, Number 1 is the applicable plan provision
relevant to this case. He also confirmed that the different
plan provisions which may be used depend on the direction the
operator determines to use when approaching the pillars for
removal (Tr. 14-20).
Mr. Clevenger explained the roof bolting procedures and
sequences while cutting the pillar blocks and splits, and he
confirmed that for each 16 feet of coal which is removed, at
least 15 36-inch roof bolts on 4-foot centers should be
installed, not exceeding 4 feet from the rib. The roof bolts
are required to be installed in the areas marked 1, 2, 3, and
4 pursuant to the roof bolting patterns shown on page 12 of
the plan and pillary recovery plan No. 3 (Tr. 20-23). He
confirmed that roof support posts are not used because of the
dimensions of the mining machine operating in the pillar
splits (Tr. 23-23). He stated that no miners are ever permitted to advance inby the last permanent roof supports except
to install temporary support (Tr. 24). He also confirmed that
at no time are scoop operators ever permitted to work inby

528

permanent roof support (Tr. 25). If they do, they would
expose themselves to the dangers and hazards of a roof fall
since they would be under unsupported roof (Tr. 25).
Mr. Clevenger stated that in the course of a regular
mine inspection, an inspector will check to determine whether
or not roof bolts are installed in the pillar splits (Tr. 26).
However, if the entire row of pillars have been removed, the
top begins to fall and an inspector would not venture beyond
the permanent supports to ascertaiu whether the bolts were
installed. The roof would fall to the breaker posts, and an
inspector could not readily observe from a safe distance
whether or not the pillars had been bolted (Tr. 27).
On cross-examination, Mr. Clevenger testified that he
last visited the mine on August 13, 1984, when the roof plan
was changed from one mine company to the present one, and
that he issued no citations. At the time of his prior visit
in April, 1983, the mine was operated under the name of
Virginia-West Virginia Mining Company (Tr. 28).
Mr. Clevenger stated that if pillar recovery work were
taking place on August 23, 1984, the roof would be subject to
fall at any time, and its likely that it would fall at any
time, including the next day. However, he had no knowledge
that the roof fell between August 23 and 24, and he did not
know whether or not MSHA Inspector Ron Matney found any roof
violations if he were at the mine on August 24 (Tr. 30-31).
Mr. Clevenger stated that in the event coal is removed
from a pillar split without the installation of temporary
roof support, a violation would occur. Temporary supports
would include timbers or jacks, and if the coal is removed,
either temporary or permanent roof support should be
installed. If the coal which has been removed is more than
4 feet from the face back to the permanent roof support, the
support should be installed to within 4 feet of the working
face of the pillar split. If the pillar split is mined all
the way through, at least 32 bolts should be installed in the
pillar split to support the two cuts of coal CTr. 34).
Mr. Clevenger stated that if additional cuts are to be
taken in a pjllar split after the temporary supports are
installed, permanent supports must then be installed. If the
cut is more than 5 feet inby the permanent support, it would
be a violation not to install additional permanent support
(Tr. 35). Mr. Clevenger confirmed that in pillar recovery
work, planned roof falls are expected, and it is not unusual
for a row of pillars to be removed one day, and for the roof

529

to fall the next (Tr. 35). He also confirmed that under the
plan, temporary roof support must be installed within
5 minutes after a cut of coal has been removed, and the temporary support remains in place until such time as the permanent
support is installed. In such a case, the only time anyone is
permitted inby the temporary support would be to install permanent support (Tr. 36-37). Mr. Clevenger confirmed that he has
rio personal knowledge of the facts surrounding the complaints
filed in this case (Tr. 37).
Larry Collins testified that he has been a miner since
1979, and that prior to August, 1984, he worked as a scoop
operator at the Jewell Ridge Coal Company, but was laid off
in 1983. He was hired by the respondent on August 14, 1984,
and mine superintendent William Brewster hired him. He initially worked on the first shift, but then worked the second
shift from 2:30 p.m. to 11:00 p.m. He was paid $70 a day,
and his supervisor was section foreman Hubert Sweeney.
Mr. Collins stated that he received no training regarding
roof control plans. He confirmed that he was employed by the
respondent as a scoop operator and that the mine was engaged
in pillar recovery when he was employed there. Referring to
exhibit C-2, a part of the roof-control plan, he explained
that "Plan A" was being followed and that the pillar split
shown as 1, 3, 5 was mined all the way through without any
roof bolting taking place. The miner would then mine all of
the numbered wing cuts as shown by numbers 6-13 without any
roof bolting taking place.
Mr. Collins stated that during his 2 weeks of employment
with the respondent, or a total of 8 shifts, no roof bolts
were ever installed on the pillar split where he was working,
and he never observed the roof-bolting machine in operation.
He explained that the continuous-mining machine was remotely
controlled, and that as the scoop operator it was his job to
follow the continuous miner in order to load out the coal and
take it to the belt for transportation out of the mine. During this process he was required to be under unsupported roof,
and at times he would be 12 to 8 feet inby and under unsupported roof, and that this was true for the entire 2 weeks of
his employment with the respondent.
Mr. Collins stated that during his employment with the
respondent some rocks fell on his scoop from some roof bolts
and that he received "a few stratches." He reported this to
Mr. Sweeney and Mr. Sweeney stated that "it don't look that
bad• II

530

Mr. Collins stated that on one occasion during his employment with the respondent, the lights on his scoop went out.
He reported this to Mr. Sweeney and .suggested to Mr. Sweeney
that the scoop be taken out of service and repaired.
Mr. Sweeney directed him to operate the scoop anyway, and
that if he didn't, he would fire him. Although Mr. Collins'
believed that operating the scoop without lights posed a
hazard to the miners because he would be unable to see them,
he followed Mr. Sweeney's order and continued to operate the
scoop without lights.
Mr. Collins stated that on August 23, 1984, he and
Mr. Earl Kennedy were working under bad top and that they
were required to work beyond permanent supports where the
roof had not been bolted. The roof was cracking and popping,
and he told Mr. Kennedy that he was not going to take his
scoop under the unsupported roof. He and Mr. Kennedy then
spoke to Mr. Sweeney and informed him that they would no
longer work under unsupported roof. Mr. Sweeney informed
them that if they refused to continue to work they were no
longer needed. At that point, Mr. Collins and Mr. Kennedy
left the mine.
Mr. Collins stated that when he and Mr. Kennedy returned
to the mine the next day to pick up their pay, an MSHA inspector who he did not know was at the mine office with mine
superintendent William Brewster, and after discussing the
matter with him, he and Mr. Kennedy decided to file a complaint the next day.
Mr. Collins stated that after he and Mr. Kennedy left
the mine on August 23; 1984, the mine continued to operate
until April, 1985, when it was closed. Mr. Collins confirmed
that after he was fired by Mr. Sweeney, he attempted to find
.other employment, but could not find a job until April, 1985,
when he went to work with the Coon Branch Construction Company
where he is now employed and earning $80 a shift (Tr. 38-60).
On cross-examination, Mr.· Collins stated that he previously worked at the mine in 1983 when it was operated by
Mr. Dave Jordan under the corporate name of Virginia-West
Virginia Coal Company. He was employed for 3 or 4 weeks as a
scoop operator but voluntarily quit.
Mr. Collins confirmed that he never saw or read the
respondent's roof-control plan. He also confirmed that while
operating his scoop behind the continuous-mining machine his

531

scoop batteries would be under unsupported roof, and since he
was positioned ahead of the batteries, he too would be under
unsupported roof.
Mr. Collins stated that he was not.aware of any roof
falls in the mine on August 23 or August 24, 1984, and that
the incident concerning the lack of lights on his scoop
occurred on the third day of his employment at the mine.
In response to further questions, Mr. Collins stated
that prior to his present employment with Coon Branch
Construction, he worked for 2 weeks with the Bartlett Tree
Trimming Company earing $4 an hour. He confirmed that he
received no state unemployment benefits because he had used
up all of his eligibility prior to his employment with the
respondent.
Mr. Collins reiterated that during his employment with
the respondent the entire coal pillars would be mined without
any roof bolts being installed, and it was his view that this
was a common practice. He confirmed that he never filed any
safety complaints concerning this practice (Tr. 60-80).
Earl Kennedy testified that he was hired to work at the
respondent's mine by Mr. William Brewster, the mine superintendent. He was hired on August 13, 1984, as a second shift
scoop operator, and was paid $70 a shift. His supervisor was
foreman Hubert Sweeney, and his last day of employment was
August 23, 1984.
Mr. Kennedy stated that during his employment with the
respondent he was engaged in pillar retrieval work splitting
pillar blocks of low coal. He identified exhibit C-2 as the
applicable roof-control plan for pillar extraction, and he
confirmed that "Plan A" as shown on· the plan was being
followed.
Mr. Kennedy stated that during his work shifts at the
mine he never observed any roof bolts installed while the
pillar splits were being mined. Although a roof-bolting
machine was in the area, it was backed out of the way and he
never saw it used to bolt the roof.
Mr. Kennedy stated that he operated a scoop and was
required to follow the remotely controlled continuous miner
while the pillar was being mined. He would maneuver the
scoop under the miner boom in order to load out the coal to
the tail piece. He operated the scoop while lying on his

532

back, and there were occasions when he would make three or
four trips following the miner under unsupported roof.
Mr. Kennedy stated that during his work shift on
August 23, 1984, he observed a roof bolt which had dislodged
along the last row of roof bolts and a large rock approximately 30 feet long had slipped down with the bolt. He
pointed out this condition to Mr. Sweeney, and he "shimmed
out the roof bolt" and instructed him to continue working.
Mr. Sweeney instructed him to take his scoop and pull it in
beyond the bolt and up to the miner, and when he refused,
Mr. Sweeney told him "to pick up my bucket and go home."
Mr. Kennedy and Mr. Collins then left the mine, but returned
the next day to pick up their pay.
Mr. Kennedy stated that when he and Mr. Collins returned
to the mine on August 24, 1984, an MSHA inspector was at the
office speaking with mine superintendent Bill Brewster.
Mr. Kennedy advised the inspector that he and Mr. Collins had
been fired the previous day for refusing to work under unsupported roof. When the inspector asked Mr. Brewster about the
matter, he told the inspector to speak with Mr. Sweeney about
the matter. After the inspector 1 t, Mr. Brewster told
Mr. Kennedy that he and Mr. Collins "had no leg to stand on
because they had always worked the mine that way." Mr. Kennedy
returned to the mine a week later, and he discussed the matter
further with Mr. Brewster and advised him that he was afraid of
the roof conditions. Mr. Kennedy and Mr. Collins then filed
their complaints with MSHA.
Mr. Kennedy stated that after he was fired by the respondent he was unemployed for approximately a month and a half,
but then found a job with the Cumberland Coal Company earning
$80 per shift. He worked for Cumberland for 5 weeks and then
went to work for the Tripple G Coal Company earning $70 to
$110 per shift. He was subsequently laid off and has been
unemployed since September 1, 1985 (Tr. 81-94).
On cross-examination, Mr. Kennedy testified that while
operating his scoop behind the continuous-mining machine he
would be positioned approximately 2 to 3 feet from the machine
dipper, and the pillar which was being split was approximately
40 to 50 feet deep.
With regard to the rock which had broken loose between
two roof bolts at the last row of roof bolts, Mr. Kennedy
stated that the continuous-mining machine ripper head was
causing the rock to vibrate.

533

Mr. Kennedy stated that as the scoop operator he was
expected to follow behind the continuous-mining machine for a
distance of some 12 feet in order to load out the coal being
cut by the miner. The dipper of his scoop would be under the
miner boom. He confirmed that under the roof-control plan
the continuous miner can only legally proceed for a distance
of 20 feet under unsupported roof (Tr. 95-108).
William Brewster testified that he was employed by the
respondent as the mine superintendent until the last week of
March, 1985, when the mine was "worked- out" and closed. He
confirmed that Mr. Dave Jordan was then the owner of the mine
and that he also owned and operated several other mines.
Mr. Brewster identified exhibit C-3 as a copy of a statement that he made to MSHA special investigator Dewey Rife
during his investigation of the complaints filed by
Mr. Kennedy and Mr. Collins. Mr. Brewster confirmed that
Mr. Sweeney told him that he fired Mr. Kennedy because "he
did not want to pull coal" and that Mr. Collins simply quit.
Mr. Brewster stated that Mr. Sweeney denied that
Mr. Kennedy and Mr. Collins were ever required to work under
unsupported roof. Mr. Brewster stated further that he was in
the mine daily and that he never observed any pillars split
when the roof in the area had not been roof bolted (Tr.
109-112).
On cross-examination, Mr. Brewster testified that he has
23 years of underground mining experience. He confirmed that
Mr. Kennedy and Mr. Collins returned to the mine the day after
they were fired and informed him that Mr. Sweeney had fired
them because he wanted them "to run coal" and they refused.
Mr. Brewster stated that he offered to rehire Mr. Kennedy and
Mr. Collins but they refused his offer and stated that "they
would find another excuse to fire them."
Mr. Brewster stated that on August 24, 1984, MSHA Inspector Ronald Matney was at the mine and had conducted an inspection that day. Mr. Brewster stated that he could recall no
roof citations being issued that day by Mr. Matney, nor could
he recall any roof falls in the mine.
Mr. Brewster stated that at all times while he was underground on the first shift the 40 foot long pillar splits were
always bolted and he has never instructed anyone to work under
unsupported roof. He also stated that during the period
August 14 through August 23, 1984, the roof bolter was being
used on the day first shift. He confirmed that one of his

534

sons worked during that shift as a scoop operator, and that
another son worked as a mechanic's helper. Mr. Brewster
stated that he would not jeopardize their safety, or any other
miners safety, by requiring them to work under unsupported
roof.
Mr. Brewster stated that he subsequently offered
Mr. Kennedy his job back a second time but that he refused.
He also stated that Mr. Kennedy asked him for a lay-off slip
so that he could draw unemployment, but he refused to give it
to him.
In response to further questions, Mr. Brewster identified
exhibits C-4 through C-8 as citations issued by Inspector
Matney on August 23, 24, and 29, 1984, and he confirmed that
he was with Mr. Matney during his inspections and that the
citations were served on him.
Mr. Brewster stated that the continuous-mining machine
is 35-1/2 feet long, and the scoop is 25 feet long. Under
the circumstances, he did not believe that it was possible
for the scoop operator to be under unsupported roof since the
pillar splits were 40 feet long (Tr. 121-128).
In response to further questions, Mr. Brewster reviewed
copies of several citations issued at the mine by Inspector
Matney (exhibits C-4 through C-8) and he stated that he could
not remember all of them. However, he confirmed that he knows
Inspector Matney, has observed Federal mine inspectors in the
mine, has received citations from them, and is familiar with
the citation forms (Tr. 138-139). He identified his name on
the citation forms, and he specifically recalled a citation
issued on August 24, 1985, and confirmed that he was present
when it was issued. The citation was issued because the wing
that was left in the pillar split was too narrow and extra
support posts had to be installed (Tr. 141). He also conceded
that he had personal knowledge of at least some of the other
citations issued by Mr. Matney, including one which was issued
for 15 dislodged roof bolts in a return hallway (Tr. 142}.
However, he explained that it is not unusual for roof bolts to
be dislodged in a hallway because of the low coal, and that a
hallway is not located on an active working pillar (Tr. 146).
In response to a question as to whether it was possible
for a scoop operator to be under unsupported roof,
Mr. Brewster responded as follows (Tr. 147-148):
JUDGE KOUTRAS: Mr. Brewster, I've just got a
couple of questions and then we'll let you go.

535

In response to a question by Mr. Bieger, he
asked you how long the continuous-mining
machine was and you said approximately thirty
two and a half feet and he asked you about the
scoop and you said twenty five feet. Then he
said, well under those circumstances then would
it be possible for one to be under unsupported
roof for a distance of thirty five feet and
your answer was that's true.
So I assume that
-- what about for a distance of sixty feet, or
fifty feet? Let's assume that under your mining plan your mining cycle that they mined for
a distance of forty five, fifty, sixty feet
without bolting, without roof bolting. Okay.
A.

Alright.

JUDGE KOUTRAS: Of any kind.
Is it possible
that either the scoop operator or the
continuous-mining machine operator would be
under unsupported roof at any time when they
go back in the mine?
A. Let's see. The miner would have to go
inby the - the miner would have to go inby
back to the controls is twenty foot where the
deck is, okay. And from there on back to the
deck is about six more foot, twenty six. Okay.
And the scoop operator sits about, approximately twelve foot from the end of the scoop.
So that gives you twenty six, thirty six, he'd
have to go thirty eight foot before he would
be inby the roof supports.
JUDGE KOUTRAS:

Okay.

A. The miner would have to go at least thirty
eight foot deep.
JUDGE KOUTRAS. So if it mined a sixty foot
distance, with absolutely no roof bolts, then
he would be under unsupported roof wouldn t
he?
A.

Right.

And at (Tr. 158):
BY MR. BIEGER:

536

Q. The Judge asked you what if/they were mining for sixty feet would somebody be under
that many feet of unsupported roof and you
said well, yes, but how big were the -- the
blocks were only forty to forty five feet,
right?
A.

Approximately, yeah.

Q. So when you're pulling pillars and the
pillar is forty to forty five feet, you don't
have a situation where they are mining sixty
feet, is that right?
A.

Right.

Mr. Brewster stated that normally the continuous miner
would not go beyond the end of the pillar being extracted
because the roof could fall on the miner. He denied that he
was under any pressure to produce coal, and confirmed that in
pillar extraction on his section the maximum distance that is
mined would be 40 feet (Tr. 160).
Mr. Brewster confirmed that he worked the day shift and
would not be in the mine during the afternoon or night shift
when the complainants were working. He stated that he would
not be underground with the complainants, and he would not be
aware of any instances where the pillars were not bolted. He
confirmed that his testimony concerning the bolting of pillars
would only apply to his day shift, and that he had no knowledge about the night·shift. When asked whether it was possible that the night shift was mining pillar splits without roof
bolting, he replied "It's possible" (Tr. 150).
Mr. Brewster stated that when the complainants returned
to the mine the day after their termination, he discussed the
matter with them and offered them their jobs back, and the
inspector was present when this occurred (Tr. 151). Hespecifically recalled the complainants telling him (Brewster)
that Mr. Sweeney expected or directed them to work under
unsupported roof and when they refused to do so he told them
to "pick up their buckets and go on down the road," or words
to that effect CTr. 151). Mr. Brewster stated that his reaction to these statements by the complainants was that
Mr. Sweeney could not lay them off for refusing to work under
unsupported roof (Tr. 152). Mr. Brewster stated further that
he discussed the matter with Mr. Sweeney, and his testimony

537

regarding the discussions which took place is as follows (Tr.
152-154):
JUDGE KOUTRAS:
Mr. Sweeney?
A.

Did you discuss it with

Yes.

JUDGE KOUTRAS:
about it?

Well, what did he tell you

A.
Well, he told me that they was sitting
down at the mouth of the break talking and the
best I can remember, he told me he hollered at
them and I believe the Kennedy boy come on up
there and he got on to him and he told him if
he wasn't going to pull coal to go on to the
house. And they went on.
JUDGE KOUTRAS: Well, what's that mean.
I
mean, there's a lot -- I don't understand why
Mr. Sweeney would just tell them -- what were
they doing? Goofing off or not working or
what?
A.
That's the way I understood it, just a
goofing off.
JUDGE KOUTRAS: And, Mr. Sweeney told them if
they weren't going to pull coal, just to go on
home and you -- why would you of fer them their
jobs back then? After they told you their
side of the story?
A. Well, if Hubert wronged them, I mean
that's the right thing to do.
JUDGE KOUTRAS: Which one -- well, if
Mr. Sweeney tells you that he told them to go
home because they were goofing off and didn't
want to work, and the two men told you that
that 1 s not true, that Mr. Sweeney expected
them to work under unsupported roof, and that's
why he told them to go home, who would you tend
to believe? Or, how would you resolve that
obvious conflict?
A.

Rephrase that again.

538

JUDGE KOUTRAS: Well, what I'm saying is
Mr. Sweeney told you one thing and the two men
told you something else, right?.
A.

Uh-hum.

JUDGE KOUTRAS: So, without even talking to
Mr. Sweeney, you told the two men to come back
to work.
A. I said if that's the way it was, come on
back out to work. When they come to work, I
would have had to have talked it over with
Hubert, you know.
JUDGE KOUTRAS: Okay. And by that time you
had talked it over with Mr. Sweeney?
A. No. I didn't even know nothing about it
until they come and told me.
JUDGE KOUTRAS: After the two men left, did
you then talk to Mr. Sweeney?
A.

Right.

JUDGE KOUTRAS: And Mr. Sweeney told you that
they just didn't want to work or what?
A. That's what he told me. He said they was
down there at the mouth of the breaker talking
and he hollered at them and one of them, I
believe Kennedy, come on up there and he told
him if they wasn't going to pull coal, to go
on to the house. Now, that's what he told me
happened.
JUDGE KOUTRAS: Okay. Did you ask Mr. Sweeney
about what Mr. Kennedy and Mr. Collins had
told you? That he expected them to work under
unsupported roof?
A.

No, he didn't tell me anything like that.

JUDGE KOUTRAS:
Did you mention it. Did you
ask Mr. Sweeney whether there was any truth in
what these two men told you?

539

A. Yeah.
I told him what they said and he
said it wasn't true.
Mr. Brewster stated that neither the complainants or
their crew ever complained to him about any lack of roof bolting or unsafe conditions, and he was not aware of any rock
ever falling on Mr. Collins' machine. He confirmed that
Mr. Sweeney never complained about the complainant's work,
and that he (Brewster) hired Mr. Kennedy because he had the
reputation of being a good scoop man (Tr. 156).
Hubert Sweeney, testified that he was employed by the
respondent as an underground section foreman on the second
shift and that he was laid off on March 15, 1985, when the
mine "worked out" and was closed.
Prior to this time he
worked at the mine in 1982 when it was operated as the
Virginia-West Virginia Coal Mine, and it was owned by Mr. Dave
Jordan, the respondent's owner.
Mr. Sweeney confirmed that Mr. Kennedy and Mr. Collins
worked for him as scoop operators on the second shift. He
denied that he directed them to work under unsupported roof
or that he fired them for refusing to do so. He stated that
during the shift on August 23, 1984, he observed Mr. Kennedy
and Mr. Collins sitting in their equipment talking and he
told them that if they did not want to "pull coal" to go home.
He stated that he fired them for "goofing off."
Mro Sweeney confirmed that he was interviewed by MSHA
special investigator Dewey Rife on September 20, 1984, during
his investigation of the complaints and he admitted telling
Mro Rife that Mro Collins and Mr. Kennedy quit their jobs and
that he did not know what happened to cause them to quit (Tr.
160-165).
Mr. Sweeney testified as follows with respect to the
circumstances under which the complainants left their jobs
CTr. 166-170):
JUDGE KOUTRAS:
Mr. Sweeney?

Why did these two men quit,

A. Sir, I don't know why they quit. They
were down at the break a talking. They didn't
want to pull no coal and I told them if they
couldn't do no better than that they might as
well go home.
One got to preaching that I
fired him and the other one, he didn't -- I

540

don't know why, he jut walked on out of the
mines.
JUDGE KOUTRAS: Tell me about this. What were
they doing, talking? What are you talking
about. Were they taking their break or what?
A.
I couldn't hear them. Yes, they was sitting on the scoop. You have to crawl on your
knees and hands and I hollered down to where I
could hear them and they was -- seen them a
sitting down there in the break a talking.
JUDGE KOUTRAS:
A.

Just chit-chatting?

Just chit-chatting, right.

JUDGE KOUTRAS:

And you told them what now?

A.
If they couldn't do no better than that
they might as well get their buckets and go on
home.
JUDGE KOUTRAS:

What did they tell you?

A. They didn't tell me nothing. They just
got in the scoop.
I crawled right back towards
the face and I asked the other scoop man where
he was at and said why, they've done gone home.
And when I come outside they had done went home.
Or otherwise they was still outside a waiting
on a ride but they quit.
JUDGE KOUTRAS:
them?

That was the last you saw of

A. Yeah, that's the last I saw after they
crawled on the outside.
JUDGE KOUTRAS:
Did you tell anybody that the
two men had quit?
A.

Si~?

JUDGE KOUTRAS:
Did you tell anybody at the
mine that these two men had quit?
A.

Yes, I told the others.

541

JUDGE KOUTRAS:

Who did you tell?

A.
I don't -- a fellar by the .name of Bill
Asbury. He's not here, him and the miner
operator.
JUDGE KOUTRAS:
Did you tell the mine superintendent, Mr. Brewster?
A.

Yes, the next day.

JUDGE KOUTRAS:
day?

What did you tell him the next

A.
I told him they quit and I said I don't
know why. They was no reason, they gave me no
reason.
JUDGE KOUTRAS:
fired them?

Did you tell Mr. Brewster you

A.
Yes, sir.
I told him that I told them if
they couldn't do no better than what they was
doing 1 laying on the scoop, to get their
bucket and go.
JUDGE KOUTRAS:
they quit?

Well, did you fire them or did

Ao
Wellu I guess you'd call it firing them.
They just took off going on outside.
I guess
you 1 d call it firing them.

JUDGE KOUTRAS:
Have you ever had any miners
in your experience leave a job under similar
circumstances?
A.

No, s

, I haven't.

JUDGE KOUTRAS:
A.

Isn't that a little unusual?

Unless they'd be sick or something.

JUDGE KOUTRAS:
I mean it's a little unusual
for two men to just up and quit because the
supervisor told them to get on with working,
to stop talking?

542

A.
I

*

Well, I guess they got the impression that
fired them.

*

*

*

*

*

*

JUDGE KOUTRAS: Does it seem kind of unusual
to you for them to just get up and take off?
A. It seemed to me like they don't want to
work. They tried to get me to get them a
cut-off slip the night before that.
I got the
impression they don't want to work.
JUDGE KOUTRAS:

What's a cut-off slip?

A. That's a slip where you could draw
unemployment.
JUDGE KOUTRAS:
A.

The night before?

The night before, sir.

JUDGE KOUTRAS: Well, tell me about that? How
did they expect you to give them a slip the
night before?
A.

They just wanted me to lay them off.

JUDGE KOUTRAS: Well, now if you laid them off
or fired them, were they eligible for
unemployment?
A.

I don't know, sir.

JUDGE KOUTRAS: You mean the night before these
two men come up to you and asked you for an
unemployment slip? They got tired of working
and they wanted to draw unemployment?
A. Yes, sir. They wanted to draw unemployment. Didn't want to work.
JUDGE KOUTRAS: The story I'm hearing is these
two men didn't want to work under unsupported
roof and you kind of suggested that if they
didn't want to work under unsupported roof
pulling coal, they might as well go on home?

543

A.
I've never sent nobody out, sir, out from
under roof supports.
JUDGE KOUTRAS:
Did you ever suggest or say
anything to them that would lead them to
believe that?
A. No, sir. While you're in the mine, I ain't
I've
going to put nobody's life in danger.
never had no problem with men all my life
I don't know why.
I treated
except these two.
them right.
Didn't cuss them out or nothing.
JUDGE KOUTRAS:
Had you known these two men
before they came to work?
A.

No, sir.

The first time.

JUDGE KOUTRAS: And they had worked for you
how long? A couple of days or what?
A.

Yeah, a couple of days, or maybe three.

Mr. Sweeney denied that roof bolting was never done on
his section, and he stated that he always followed the
roof-control plan.
He explained the bolting process and
denied that his crew ever cut all the way through a pillar or
worked under unsupported roof while cutting coal (Tr. 172).
He conceded that he was not always present while the continuous miner was operating, and that when he was present he would
always position himself next to the continuous miner (Tr. 174).
Terry Kennedy testified that he is Earl Kennedy's brother
and that he has been employed with the Island Creek Coal
Company for 7 years. He stated that while he was laid off
from that job he worked for the respondent as a scoop operator
and timber man on the second shift for 2 days on August 13 and
14v 1984, and that Hubert Sweeney was the shift foreman.
Mr. Kennedy stated that during the 2 days he worked on
the second shift the coal pillars were split down the middle
straight through and that the continuous miner would then
pull out and mine the right and left wings.
During this time
he never saw any roof bolts installed on the mined pillar
splits and the roof-bolting machine was never used. Although
he was never required to work under unsupported roof while
pulling the pillars he did so anyway in order "to keep his
job." He stated that Mr. Sweeney knew he was working under
unsupported roof.

544

Mr. Kennedy stated that he discussed the roof conditions
with Mr. Sweeney and informed him that he was jeopardizing
the safety of the miners by not roof bolting the pillars. He
stated that Mr. Sweeney informed him that since the mine was
a "small truck mine" they could "get by with just about anything" (Tr. 174-182).
Jerry Kennedy testified that he is currently unemployed
and has 11 years of mining experience. He stated that he is
not related to the complainant and that he was employed by
the respondent from August 13, 1984 to August 23, 1984, as a
second shift scoop operator and timber man, and he confirmed
that shift foreman Hubert Sweeney was his supervisor.
Mr. Kennedy stated that during his employment with the
respondent he was engaged in pillar work and he indicated
that after the pillar was "timbered up" the continuous-mining
machine would go in and cut the pillar split until it was
mined through to the end. As the timber man he would be in
and out of the pillar while it being mined and at no time did
he ever observe roof bolts being installed in the pillar.
Although a roof bolter was on the section, he never observed
it being used to pin the roof.
Mr. Kennedy stated that during his shift on August 23,
1984, he overheard Mr. Sweeney tell Mr. Earl Kennedy that "if
you can't do that I don't need you after this shift." He
heard Mr. Kennedy reply "if you don't need me than you don't
need me now." Mr. Kennedy stated that he had no idea what
Mr. Sweeney and Earl Kennedy were discussing. He stated that
he observed scoop operators working unner unsupported roof
and that this was a common occurrence on the second shift
during his employment at the mine (Tr. 184-188).
On cross-examination, Mr. Kennedy stated that he first
met Mr. Earl Kennedy and Mr. Collins when he went to work for
the respondent. He confirmed that he quit his job on
August 23, 1984, because he didn't like the pay and the
height of the coal. He stated that he never complained about
the roof conditions or the lack of roof bolting. He also
confirmed that Hubert Sweeney was married to his cousin (Tr.
188-198).
Bobby Mullins testified that he is employed by the
Rocking-R Coal Company and that he has 12 years of underground
mining experience. He confirmed that he was employed by the
respondent for 3 weeks during August, 1984. He worked on the
first shift as a miner and pinner helper. He stated that

545

Mr. Brewster was the mine superintendent and that he was underground every day during the day shift.
Mr. Mullins stated that he worked at the faces pulling
pillars, and that during his employment at the mine he never
saw the roof bolter used to install roof bolts on the pillars
(Tr. 199-202).
On cross-examination, Mr. Mullins confirmed that he grew
up with Earl Kennedy. He stated that he quit his job with
the respondent after Mr. Brewster threatened to fire him. He
explained that he and several other miners were pulling a
miner cable with a scoop and it separated. Since he was the
"cable man," Mr. Brewster held him responsible for the cable
separating and when he informed him that he would be fired,
he quit before Mr. Brewster could fire him (Tr. 202-206).
Respondent's Testimony
David B. Jordan, testified that he was the President and
part-owner of the Raven Red Ash Coal Corporation and he confirmed that the mine was closed down in March of 1985. He
stated that he usually goes underground in his mines every 2
or 3 months. He stated that he has personally never fired
any of his employees and that he has never directed anyone to
fire any employee.
Mr. Jordan confirmed that he was at the mine in question
on August 24, 1984, delivering the payroll and he learned at
that time that Mr. Sweeney had fired Mr. Kennedy and
Mro Collins for "refusing to pull coal. 11 Mr. Jordan stated
that MSHA Inspector Ronald Matney was at the mine on
August 24u 1984, and that he discussed the matter with him.
Mr. Matney had conducted an inspection that day and except
for some loose roof bolts on the haulage road Mr. Matney
assured him that "everything looked fine" underground.
Mr. Jordan stated that no one had ever complained to him
about unsafe working conditions underground. He confirmed
that he has not paid any of the civil penalty assessments
reflected in MSHA's computer print-out, exhibit C-9, because
he could not afford it. He also confirmed that he was in the
process of working out a "settlement" with the Department of
Justice to pay those penalties (Tr. 219-224, 226).
Mr. Jordan stated that the No. 1 Mine where the complainants were employed is mined out and that it closed in March,
1985. He confirmed that he just opened a new mine, and when
asked about the financial condition of his company, he

546

responded "I guess we're in no worse or no better shape than
half the coal companies in Buchanan County" (Tr. 227).
Mr. Jordan was of the opinion that the complainants quit
their jobs, and he alluded to a prior proposed settlement
offer by MSHA to compensate one of the complainants, and that
if he agreed, the case would be dropped. He stated that had
he believed the complainants were fired for working under
unsafe conditions, he would have not contested the complaints
(Tr. 229).
Mr. Jordan confirmed that since he was not underground
from day to day, he would not know how Mr. Sweeney operated
his section, and while he believed that it was possible that
the complainants were terminated for reasons which they have
testified to in this case, he would have no knowledge of this
one way or the other {Tr. 231). He stated that he chose to
believe Mr. Sweeney, Mr. Brewster, and Inspector Matney (Tr.
231).
He disclaimed any knowledge as to the complainants'
motives in claiming that they were fired for refusing to· work
under unsupported roof (Tr. 235).
Mr. Clevenger was recalled as the court's witness, and
he stated that assuming the two complainant's were engaged in
mining an entire 40-foot block of coal continuously while in
their scoops, they could be 4 to 6 feet past permanent roof
supports.
If the entire coal block is mined without pulling
out and bolting after cutting 20 feet, a violation of the
roof-control plan would result because the plan stipulates
that the maximum depth of the coal being mined should not
exceed 20 feet without bolting.
In addition, the remote controls for the miner may not advance beyond permanent roof
support (Tro 251-252)0
Mr. Clevenger stated that he has been in the mine several
times and has never received any complaints with respect to
the mining procedures (Tr. 253).
Tn response to questions
from respondent's counsel, Mr. Clevenger stated as follows
(Tr. 254-255):

Q.

Do you remember before when I asked you
when you're pulling timbers, if you pull one
is it likely that they have a roof fall the
very next day and you said it's quite possible
that the could have a roof fall at anytime?

A.

Yes, sir.

I said that.

Q.

Well, doesn't that seem -- doesn't it surprise you that not only -- that if you can go

547

and mine backwards and forwards in all these
pillars for nine days and never put the first
bolt in and never have a major ·roof fall?
Isn't that pretty much impossible?
A. It'd be according to the type of strata
that you've got.

Q. Yeah, I know it would be, but if it's quite
possible that it would fall the next day -A.

I don't know that this has been done.

Q. Well, I'm just asking you a hypothetical
question.
A.

Right, you're asking a theory.

Q. Isn't it unusual, if as you say, that the
roof could fall the very next day, isn't it
unusual that you would mine all of these
pillars right and left for two weeks and never
put the first bolt in and never have a roof
fall? Isn't that pretty incredible?
A.

If it's being done, yes.

Q.

Okay.

A. There's no set time when a pillar fall
would come because you have to put additional
support, timbers, until you get enough weight
to override these timbers --

Q.

Right.

A.

-- it's pretty well hold itself.

I understand that.·

Mr. Clevenger explained the roof bolting pattern and
sequence for the mine, and he indicated that if no roof bolts
were installed in certain areas during the period from
August 13 to 23, it was possible that Inspector Matney did
not see the areas because of the roof falls and he would not
venture inby the breaker posts (Tr. 257-259).
In the event
one cut of coal was taken when Mr. Matney was in the mine,
temporary supports would have been installed, but no bolting
was required until that cut was completed and a second one
begun. If Mr. Matney was there the entire day, he would have

548

been aware of what the mining procedures were and what work
was being done (Tr. 262).
MSHA Inspector Ronald C. Matney did not testify at the
November 13, 1985, hearing in this case. However, by agreement of the parties, his deposition was taken on November 14,
1985, and it has been filed and made a part of the record in
this case.
Mr. Matney stated that he has been employed by MSHA as a
coal mine inspector since October 1, 1978. He testified as
to his background, training, and experience, and confirmed
that he is familiar with the respondent's mine. He stated
that Mr. David Jordan was the president and owner of the Raven
Red Ash Coal Company, and that the mine at one time operated
under the corporate name of Virginia-west Virginia Coal
Corporation. He confirmed that Mr. Jordan was the president
and owner of both corporations, and that during his inspections at the mine when they were under both corporate names he
observed Mr. Jordan there. He also observed Mr. Bill Brewster
and Mr. Hubert Sweeney at the mine when it operated under the
name of Virginia-West Virginia Coal Corporation (Tr. 3-6).
Mr. Matney stated that he inspected the respondent's No.
1 Mine four times a year, and that depending on the conditions of the mine, the inspection takes from 3 to 5 days to
complete. He confirmed that he began an inspection of the
mine on August 24, 1984, and that he was accompanied by
Mr. Brewster. Mr. Matney stated that he arrived at the working face area of the mine at approximately 9:20 a.m., and day
shift personnel were at work. Work had started approximately
2 hours earlier, and after checking the face area he proceeded
to the area where employees were working removing coal. He
observed that a split or pillar block of coal approximately
20 feet had been removed and the crew had moved back to the
next line of crosscuts to begin a new phase of mining across
the working faces.
He confirmed that he issued a violation on
the cut of coal that had been taken because the respondent was
not complying with its roof-control. plan for pillar extraction.
The plan required that a 10-foot block of coal be left on each
side of the pillar split as a means of roof support, and he
found that instead of leaving a 10-foot wing for support, the
wing of coal which was left was between 4 and 8 feet.
Under
the circumstances, Mr. Matney issued a section 104(a) "significant and substantial" citation charging the respondent with a
violation of mandatory section 75.200, for failure to comply
with the roof-control plan. Mr. Matney stated that the respondent did not contest the citation (Tr. 7-12).

549

Mr. Matney stated that during his inspection he looked
at the pillar areas which had been mined on previous shifts
and from his position at the pillar breaker line he shined
his light back into the area in an attempt' to observe what
had been done. He did not venture beyond the pillar breaker
line because of the "danger of the conditions of the roof."
However, from his vantage point at the breaker line he coulq
not see anything because the roof had collapsed "up next to
the breaker line," and he could not determine whether the
previous shift had installed roof bolts in the pillar splits.
The coal had been mined out and the "roof was collapsed
solid" up to the breaker line (Tr. 13).
Mr. Matney stated that after completing his underground
inspection on August 24, he returned to the surface at approximately 12:00 to 1:00 p.m., in the company of Mr. Brewster
and they proceeded to the mine off ice. While standing in the
office doorway, Mr. Collins and Mr. Kennedy came by and
Mr. Matney asked them "how they were doing." Mr. Kennedy
responded "not so good," and when asked why by Mr. Matney,
Mr. Kennedy informed him that Mr. Sweeney had fired them the
previous evening "for not hauling coal out from unsupported
roof that was broke." Mr. Matney stated that he commented to
Mr. Brewster that he could not fire anyone "for unsafe work
practices," and that there was a possibility that Mr. Kennedy
and Mr. Collins could file discrimination charges against the
respondent. Mr. Matney also stated that he informed
Mr. Kennedy and Mr. Collins that he had inspected the faces
and found "no violations that they had done" (Tr. 14-15).
Mr. Matney stated that when he mentioned the fact that
Mr. Kennedy and Mr. Collins could file a discrimination
charge, Mr. Brewster attempted to contact Mr. Sweeney underground and stated to Mr. Kennedy and Mr. Collins "if its like
you say it is, you'll get your jobs· back." At that point in
time, Mr. Matney left the mine office to return to his own
office, and he did not know whether Mr. Brewster contacted
Mr. Sweeney. Mr. Kennedy and Mr. Collins were still at the
office when Mr. Matney left. Mr. Matney stated that
Mr. Jordan was not at the mine that day, and that at no time
has he had any conversations with Mr. Jordan about the
incident (Tr. 16).
On cross-examination, Mr. Matney stated that there was
no doubt in his mind that he did not speak with Mr. Jordan on
August 24 while at the mine. He stated that according to the
legal identity files maintained in his MSHA office, Mr. Jordan
was the president of both the Virginia-West Virginia Coal
Company and the Raven Red Ash Coal Company, and that when he

550

filed his reports Mr. Jordan was listed as the corporate president of both companies (Tr. 16-18).
Mr. Matney stated that a remote controlled miner was
used to cut the pillar block of coal which he observed on
August 24. One cut of coal approximately 20-feet wide by
20-feet deep had been taken out of the pillar and jacks had
been set and a roof bolter was present and was about to begin
the roof bolting cycle. He issued the citation because additional roof supports were required to be installed due to the
subnormal roof conditions which resulted from not leaving
enough coal for roof support. He drew a diagram of the block
of coal being mined, and he explained how the pillar was cut
and split and bolted and timbered (deposition exhibit-A; Tr.
22-26).
Mr. Matney stated that the respondent had no advance
knowledge that he would inspect the mine on August 24, and
that it is illegal for anyone to advise an operator of a·
scheduled inspection. He stated that at the time he observed
the pillar which had been cut, no roof bolting had actually
taken place, but the safety jacks had been set and the roof
bolting machine was in place ready to bolt the roof (Tr. 27).
Mr. Matney stated that the last previous inspection of
the mine was probably conducted 2 months prior to August 24,
but he could not recall whether pillar work had been done at
that time. Although he issued a citation for dislodged roof
bolts during his August inspection, he could not recall issuing any citations during his previous inspection (Tr. 29).
The dislodged bolts in question were in a crosscut hallway,
and he explained that they are usually dislodged because the
miner is too big for the low coal being mined (Tr. 30).
Mr. Matney stated that he did not discuss the respondent's pillar extraction procedures with Mr. Brewster, and he
confirmed that because of the roof falls he could not determine whether roof bolting had been done during prior shifts.
He stated that such falls are ·normal in pillar retrieval mining and that the roof is supposed to fall (Tr. 32). Mr. Matney
reiterated that he heard Mr. Brewster state that if Mr. Sweeney
fired Mr. Collins and Mr. Kennedy because of their refusal to
work under unsupported roof, they would get their jobs back
(Tr. 33).
Mr. Matney stated that a wing of coal could be mined in
25 minutes, and that it would take approximately 2 to 3 hours
to mine a pillar. Two working shifts could probably extract
five pillars of coal. He explained that the roof is falling

551

behind the areas where the coal has been extracted. Timbers
are a means of temporary support for the roof, and after the
coal is extracted roof bolts and timbers will not support the
weight of the roof, and any resulting roof falls are "controlled falls" (Tr. 37}. He believed it was possible or probable to pull a number of pillars over a period of time without
installing roof bolts, but he would not recommend it (Tr. 38).
Findings and Conclusions
In order to establish a prima facie case of discrimination
under section 105(c) of the Mine Act, a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Fasula v. Consolidation Coal Company,
2 FMSHRC 2768, (1980), rev'd on other grounds sub. nom.
Consolidation Coal Company v. Marshall, 663 F.2d 1211 C3d Cir.
1981); and Secretary on behalf of Robinette v. United Castle
Coal Company, 3 FMSHRC 803 (1981). Secretary on behalf of
Jenkins v. Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984).
The operator may rebut the prima facie case by showing either
that no protected activity occurred or that the adverse action
was in no way motivated by protected activity.
If an operator
cannot rebut the prima facie case in this manner it may nevertheless affirmatively defend by proving that (1) it was also
motivated by the miner's unprotected activities alone. The
operator bears the burden of proof with regard to the af firmative defense. Haro v. Magma Copper Company, 4 FMSHRC 1935
(1982). The ultimate burden of persuasion does not shift
from the Complainant. Robinette, supra. See also Boich v.
FMSHRC, 719 F.2d 194 (6th Cir. 1983); and Donovan v. Stafford
Construction Company, No. 83-1566, D.C. Cir. (April 20, 1984)
(specifically-approving the Commission's Fasula-Robinette
test). See also NLRB v. Transportation Management Corporation,
U.S.
, 76 L.Ed.2d 667 (1983).
The issue in this case is whether or not the complainants
were discharged by the respondent because of their reluctance
or refusal to perform work as scoop operator.s under unsupported roof. MSHA's position is that the complainants were
fired for refusing to work under unsafe roof conditions (Tr.
248 and posthearing brief). Although the respondent did not
file any posthearing arguments, I assume from the arguments
made by counsel on the record during the course of the hearing
in this case that its position is that the complainants either
quit their jobs voluntarily or they were discharged by second
shift foreman Hubert Sweeney because of their "goofing off" on
the job or refusing "to pull coal."

552

The respondent produced no mine records documenting the
separation of the two complainants •. Mr. Jordan testified
that Mr. Brewster told him that the two had quit, and that
Inspector Matney told him that they were fired by Mr. Sweeney
"for refusing to pull coal" (Tr. 220-221). Mr. Jordan was
also of the opinion that the two men quit (Tr. 229).
During his direct testimony, Mr. Brewster testified that
Mr. Sweeney told him that he fired Mr. Kennedy because "he
did not want to pull coal, 11 and that Mr. Collins simply quit.
On cross-examination, Mr. Brewster stated that Mr. Sweeney
told him that he told Mr. Collins and Mr. Kennedy to "go on
to the house," and that he (Brewster) was led to believe that
Mr. Kennedy and Mr. Collins did not want to pull coal and
that Mr. Sweeney told them to go home because they were "goofing off."
Mr. Sweeney's testimony as to whether he fired Mr. Collins
and Mr. Kennedy, or whether they quit is inconsistent.
Mr. Sweeney first testified that he fired the two for "goofing
off" after he observed them sitting in their equipment talking.
He then testified that he told at least one other man on the
shift that the two had quit and that he told Mr. Brewster that
they had quit and that he had fired them. When specifically
asked whether he had fired them or whether they quit,
Mr. Sweeney responded "Well, I guess you'd call it firing them.
They just took off going on outside.
I guess you'd call it
firing them" (Tr. 168).
Mr. Sweeney admitted that when he was interviewed by an
MSHA inspector on September 20, 1984, during the investigation of the discrimination. complaints, he told the inspector
that Mr. Collins and Mr. Kennedy quit their jobs, and that he
(Sweeney) had no knowledge as to why they quit. Mr. Sweeney's
prior denials of any knowledge as to why the two complainants
left their jobs raises a question in my mind as to his credibility. If Mr. Sweeney had just cause to discharge the
complainants, it seems to me that h.e would have told the
investigating inspector his side of the story as to why the
two men left their jobs rather than denying any knowledge of
the incident.
Both Mr. Kennedy and Mr. Collins were consistent in their
assertions that they had been fired by Mr. Sweeney. The statements to this effect, made to Inspector Matney and Mr. Brewster
the day following their termination, are consistent, and both
Mr. Brewster and Mr. Matney confirmed that Mr. Kennedy and
Mr. Collins told them that Mr. Sweeney fired them. Further,

553

their testimony during the hearing that they had been fired by
Mr. Sweeney is likewise consistent.
After careful consideration of all of the testimony in
this case, I conclude and find that on August 23, 1984,
Mr. Collins and Mr. Kennedy were fired from their jobs as
scoop operators by Mr. Hubert Sweeney, respondent's second
shift foreman, and that their termination was not the result
of voluntary quits on their part.
Mr. Brewster confirmed that he had never received any
complaints about the complainants' work performance. He confirmed that he initially hired Mr. Kennedy because of his
reputation as a good scoop man, and that Mr. Collins was hired
because he had worked at the mine in a previous occasion and
Mr. Brewster believed that he could operate a scoop (Tr. 156).
Mr. Sweeney testified that the complainants had only worked
for him for 2 or 3 days before they were terminated, and he
was under the impression that they did not want to work ·(Tr.
169). Other than this opinion by Mr. Sweeney, there is no
evidence that the complainants were other than good employees,
nor is there any evidence that they had ever complained to
mine management or to any MSHA inspectors about any hazardous
job conditions or safety infractions.
During the course of the hearing, mine operator Jordan
suggested that since Inspector Matney had just been underground and ass~red him that "everything looked fine," the
assertions by the complainants that they were asked or
required to work under unsupported roof is incorrect. However, I take note of the fact that Mr. Sweeney did not advise
management that he terminated the complainants until the next
day. Significantly, after Mr. Jordan and Mr. Brewster were
made aware of the terminations, and after Inspector Matney
advised Mr. Brewster of the possibl·e ramifications of the
terminations, including a possible discrimination complaint
by the complainants, Mr. Jordan and Mr. Brewster did not go
underground to ascertain the facts or to determine or attempt
to determine whether the area where the two individuals were
working was in fact roof bolted. Mr. Brewster and Mr. Jordan
apparently opted to believe Mr. Sweeney's explanation that he
fired the complainants because they did not want to work.
I
find it rather strange that mine management, once alerted by
a Federal inspector on the scene of the possible ramifications
of the discharge, would not immediately ascertain all of the
facts so as to protect itself from any possible discrimination
claims.

554

Mr. Brewster worked the day shift and he would not be in
a position to observe the working conditions during the evening shift which was supervised by Mr. Sweeney (Tr. 149-150).
Mr. Brewster conceded that it was possible that the night
shift could have been mining and splitting pillars without
roof bolting {Tr. 150). However, since he was not underground
during the night shift, he would have no way of personally
knowing that this was the case, and he stated that no one on
the night shift, including Mr. Collins or Mr. Kennedy, ever
complained to him about the lack of roof bolting or hazardous
conditions (Tr. 154-155).
Mr. Jordan testified that he may have been underground
once every 3 or 4 months in response to calls from the superintendent concerning adverse mining conditions CTr. 219). He
confirmed that due to his absence from the underground mine
on a day-to-day basis, he would have no way of knowing how
Mr. Sweeney operated the section. While it was possible that
Mr. Collins and Mr. Kennedy are correct in their assertions
that pillars were pulled without roof support, Mr. Jordan
stated that he had no personal knowledge that this was the
case (Tr. 230-231).
Mr. Brewster asserted that during the period from
August 14 to 23, 1984, the roof bolter was used on the first
day shift. He also asserted that his two sons worked on that
shift as a scoop operator and mechanic's helper, and that he
would not jeopardize their safety by requiring them to work
under unsupported roof. While these assertions may be true,
the fact is that Mr. Collins and Mr. Kennedy worked the evening shift under Mr. Sweeney's supervision, and Mr. Brewster
had no knowledge as to how Mr. Sweeney worked his shift.
Under the circumstances, I find Mr. Brewster's assertions as
to what may have transpired during his day shift to be irrelevant to the question concerning what Mr. Sweeney expected his
shift to do, or whether or not the claims by Mr. Collins or
Mro Kennedy that they were expected to work under unsupported
roof are supportable by credible evidence.
Mr. Jordan claimed that he spoke with Mr. Matney after
discussing the matter with Mr. Brewster, and that Mr. Brewster
informed him that the two men were going to file a complaint.
Mr. Jordan also stated that Mr. Brewster advised him that
Mr. Sweeney had fired Mr. Collins and Mr. Kennedy for "refusing to pull coal." Given these circumstances, I find it
rather peculiar that Mr. Jordan did not go underground to
ascertain precisely what had happened. If all of the principals were readily available a day after the discharge, it
occurs to me that the natural thing for Mr. Jordan to have

555

done was to go underground with the inspector while the events
were fresh in everyone's mind in order to view the areas which
had been mined on the second shift the day before in order to
ascertain all of the facts. Further, since Mr. Collins and
Mr. Kennedy were readily available at the mine on August 24, I
also find it rather peculiar that Mr. Jordan did not speak
with them to ascertain their side of the events leading to
their termination. I also find it rather strange that neither
Mr. Jordan or Mr. Brewster spoke with any other members of
Mr. Sweeney's shift to ascertain all of the facts. None of
these individuals were called to testify on behalf of the
respondent.
Mr. Jordan explained that he made no further inquiry
because he assumed that Inspector Matney's comments that his
inspection on August 24 detected nothing wrong with the conditions underground led him to believe that everything "had to
be right" (Tr. 263). Mr. Matney denied speaking to Mr. Jordan
when he encountered Mr. Collins and Mr. Kennedy at the mine
office the day following the discharge. During their testimony, Mr. Brewster, Mr. Collins, and Mr. Kennedy did not mention that Mr. Jordan was present at the mine office on
August 14, when Inspector Matney encountered the two men, and
Mr. Brewster stated that he spoke with Mr. Sweeney after
Mr. Collins and Mr. Kennedy left (Tr. 153). Mr. Matney testified that there was no doubt in his mind that he did not speak
to Mr. Jordan on August 24, 1984.
Mr. Jordan stated that he could ascertain from the mine
map and work shift records the mine areas which had been mined
during the period August 3 to 24, 1984. I assume that those
records would reflect the mine conditions in those areas, and
that they would also possibly reflect whether or not certain
areas had been bolted as the mining sequence took place. However, the respondent produced no records in this regard, nor
did it call any witnesses for testimony in this case. All of
the witnesses were either subpoenaed or called by MSHA, and
Mr. Jordan, who was present at the hearing, was called as the
court's witness. Although Mr.· Sweeney mentioned that two other
miners were present on the shift when he fired Mr. Collins and
Mr. Kennedy, they were not called as witnesses, and the respondent produced no testimony or evidence from any other miners
who may have also worked on the evening shift when Mr. Collins
and Mr. Kennedy were fired.
In view of the foregoing, I have given little consideration to Mr. Jordan's defense that Inspector Matney assured
him that everything was in order underground on the morning
after the terminations. While it is true that Mr. Matney was

556

underground on the morning after the terminations of
Mr. Collins and Mr. Kennedy, he testified that he could not
tell whether any roof bolting had been done because pillar
work had begun in a new area and he could not safely observe
what had been done on prior shifts because the roof had
fallen in up to the pillar break line.
I have also given little weight to the testimony by
Mr. Jordan and Mr. Brewster with regard to the roof bolting
practices or other conditions which may have existed on the
second shift during the periods when the complainants were
working on that shift. For the reasons stated earlier, I
conclude and find that Mr. Brewster and Mr. Jordan had little
or no presence underground during the second working shift
and were in no position to personally observe any of the prevailing working or mine conditions during that shift.
Complainant Larry Collins testified that during his
employment on the second shift, entire coal pillars were· mined
without any roof bolts ever being installed, and that this was
a common practice. Complainant Earl Kennedy testified that
during his employment on the second shift a roof bolter was
present on the section but it was backed up out of the way and
he never observed it being used to install roof bolts while
the pillar splits were being mined.
Terry Kennedy, Earl's brother, testified that for the
2 days he worked on the second shift on August 13 and 14,
1984, no roof bolts were ever installed and the roof bolting
mahine was never used. Terry Kennedy testified further that
while no one ever directed him to work under unsupported roof,
he did so anyway "to keep his job." He also asserted that he
told Mr. Sweeney that the safety of the miners was being jeopardized by not roof bolting, and that Mr. Sweeney replied that
since the mine was a small operation they "could get by with
just about anything."
Jerry Kennedy, who is unrelated to the complainant, testified that during his employment on the second shift from
August 13 to 23, 1984, he never observed the roof bolter in
use or the roof being bolted. He testified that the pillars
would be mined through to the end without any pillar roof
bolting taking place, and that he observed scoop operators go
under unsupported roof, and that this was a "common
occurrence."
Bobby Mullins, who work the day shift as a pinner helper,
testified that during his employment underground for 3 weeks

557

in August, 1984, he never observed the roof bolter in use
installing roof bolts on the pillars.
The only testimony which directly contradicts the testimony of the complainants and the two corroborating witnesses
who worked the same shift as the complainants with respect.to
whether or not roof bolting was ever done during the retreat
pillar extraction process on the second shift is that of
second shift foreman Hubert Sweeney. Mr. Sweeney testified
that the roof was always bolted in accordance with the roof
plan.
Mr. Sweeney confirmed that during MSHA's investigation
of the complainants, he told MSHA special investigator Dewey
Rife that Mr. Collins and Mr. Kennedy quit their jobs and
that he (Sweeney) did not know why they had quit. At the
hearing, Mr. Sweeney testified that he did not know why the
complainants had quit and later admitted that he fired them
for "goofing off" or not wanting to work.
I find Mr. Sweeney's
testimony to be inconsistent, and his failure to fully disclose
to the special investigator all of the relevant facts concerning the terminations leads me to conclude that his testimony in
this case is less than credible. Further, Mr. Sweeney was the
second shift foreman and the safety of his crew was his responsibility.
In these circumstances, I believe it is reasonable
to conclude that any testimony by Mr. Sweeney must be viewed in
light of a natural interest on his part not to put himself in a
position of being held personally accountable for any adverse
results which may flow from exposing miners to hazardous mining
conditions or practices, or from any ~laims of discriminatory
discharges.
After careful consideration of all of the testimony
regarding the asserted absence of any roof bolting on the
second shift during the complainants employment with the
respondent, I find the testimony of the complainants and the
corroborating witnesses to be credible and it supports a conclusion that roof bolting was not being accomplished on the
second shift during all times relevant to the complaint.
During their employment at the mine on the second shift
the complainants were working in low coal and were engaged in
retreat coal pillar extraction. Such pillar extraction is in
itself potentially more hazardous than normal mining because
it includes self-induced roof falls behind the areas from
which the coal has been removed, and the full natural roof
support of the coal pillar which at one time served to support
the roof has been removed or lessened because of the removal
of the coal.

558

Mr. Kennedy testified that while operating his scoop he
would be lying on his back, and Mr. Sweeney stated that after
speaking with Mr. Collins and Mr. Kennedy underground about
their "chit-chatting," he had to "crawl" out of the area on
his hands and knees. Mr. Brewster testified that because of
the low coal it was not unusual for roof bolts to become dislodged. Under all of these circumstances, I believe it is
reasonable to conclude that the low coal heights posed an
additional potential hazard to the complainants who were
expected to work in these areas. Coup·led with my fin ding
that roof bolting was not being done during the pillar extraction process on the second shift, I conclude that during their
employment on the second shift, the complainants were exposed
to a serious hazard of a potential unplanned roof fall with
resulting serious injuries.
Since I have concluded that the pillar splits were not
roof bolted on the second shift during the complainants'·
employment on that shift, I also conclude and find that as
scoop operators, Mr. Kennedy and Mr. Collins were necessarily
required to work under unsupported roof and that section foreman Sweeney expected them to.
In addition to the testimony
of Mr. Collins and Mr. Kennedy that they were under unsupported roof when they operated their scoops, Mr. Brewster confirmed that assuming the pillars were not bolted, the scoop
operators would be operating under unsupported roof.
During
his explanation of the respondent's roof-control plan and the
procedures for pillar extraction, Inspector Clevenger stated
that the cutting of a pillar for a distance of 20 feet without
pulling out and bolting would violate the respondent's roofcontrol plan, and if the scoop operators worked the entire
40-foot pillar continuously with no bolting taking place, they
would be 4 to 6 feet past permanent roof supports. Scoop operator Jerry Kennedy (not related to Earl), testified that it
was a common occurrence for scoop operators to work under
unsupported roof on the second shift.
It is well settled that the refusal by a miner to perform
work is protected under section 105(c)(l) of the Act if it
results from a good faith belief that the work involves safety
hazards, and if the belief is a reasonable one. Secretary of
Labor/Pasula v. Consolidation Coal Company, 2 FMSHRC 2786,
2 BNA MSHC 1001 (1980), rev'd on other grounds, sub norn
Consolidation Coal Company v. Marshall, 663 F.2d--r2°ll"C3rd Cir.
1981); Secretary of Labor/Robinette v. United Castle Coal
Company, 3 FMSHRC 803, 2 BNA MSHC 1213 (1981); Bradley v. Belva
Coal Company, 4 FMSHRC 982 (1982). Secretary of Labor v.
Metric Constructors, Inc., 6 FMSHRC 226 (Feb. 1984), aff'd sub

559

nom., Brock v. Metric Constructors, Inc., 3 MSHC 1865
(11th Cir. 1985). Further, the reason for the refusal to work
must be communicated to the mine operator. Secretary of
Labor/Dunmire and Estle v. Northern Coal Company, 4 FMSHRC 126
(1982).
I find the testimony of the complainants that they
informed shift foreman Sweeney on August 23, 1984, that they
would not continue to work under unsupported roof to be credible. Mr. Collins testified that at the time of the refusal,
the roof was cracking and popping. Mr .• Kennedy stated that
prior to his work refusal, he observed a dislodged roof bolt
and a large rock approximately 30 feet long which had slipped
down with the bolt. After Mr. Sweeney "shimmed out the roof
bolt," he instructed Mr. Kennedy to continue working his scoop
beyond the slipped rock and up to the miner, but Mr. Kennedy
refused. Mr. Collins testified that after discussing the situation further, he informed Mr. Kennedy that he would no longer
work under unsupported roof, and that he and Mr. Kennedy· so
informed Mr. Sweeney.
Mr. Sweeney confirmed that he observed Mr. Kennedy and
Mr. Collins sitting in their scoops at the pillar break carrying on a discussion.
He then confronted them, and after some
discussion, the two men left the mine. Mr. Sweeney subsequently first testified that he informed Mr. Brewster that the
two had quit for no reason. He then testified that he informed
Mr. Brewster that he had fired them for "goofing off."
Mr. Brewster's subsequent offers to Mr. Kennedy and Mr. Collins
to come back to work raises a strong inference in my mind that
Mr. Brewster had some doubts about their termination, and that
their contention that they were fired for refusing to work
under unsupported roof has a ring of truth about it.
As discussed earlier, at the time of the discharges, the
conditions which existed while the complainants were engaged in
pillar extraction work presented a serious hazard of a potential unplanned roof fall.
Further, Mr. Collins testified that
he previously experienced rock falling on his scoop, that he
was required to operate the scoop with malfunctioning lights,
and that the roof was cracking and popping. Mr. Kennedy testified that a large rock had slipped out of the roof at the point
where the roof had been bolted at the pillar break, and Terry
Kennedy testified that he had previously informed Mr. Sweeney
that the lack of roof bolting on the pillars was jeoparadizing
the safety of the miners. Given all of these circumstances, I

560

conclude and find that the complainants refusal to continue to
work under unsupported roof on August 23, 1984, was justified.
I further conclude and find that the complainants had a good
faith, reasonable belief that continuing to work inby permanent
roof support was hazardous.
The record in this case establishes that the complainants
were satisfactory employees and had never been disciplined
about their work. As a matter of fact Mr. Brewster confirmed
that he hired them because of their reputation as good scoop
operators. Further, there is no evidence that the complainants
ever filed any safety complaints with MSHA or with mine
management, or that they were considered troublemakers or
malingerers.
The testimony and statements of Mr. Sweeney and
Mr. Brewster concerning the termination of the complainants
is inconsistent, and I have given it little weight. As indicated earlier, Mr. Sweeney's testimony that the two men quit,
and his later statement that he fired them casts doubts as to
his credibility. Likewise, Mr. Brewster's prior statements
to the MSHA investigator, and his testimony at the hearing,
indicates an inconsistency as to his understanding of whether
the complainants were fired for cause or voluntarily quit
their jobs. Contrasted with this testimony, is the consistent statements of the complainants, both during the hearing,
and in their prior contacts with the MSHA investigator,
Inspector Matney, and mine management, that they were fired
by Mr. Sweeney because they refused to work under unsupported
roof.
I conclude and find that the preponderance of the evidence and testimony adduced in this proceeding establishes
that Mr. Kennedy and Mr. Collins were fired by shift foreman
Sweeney because of their refusal to continue to work as scoop
operators under unsupported roof.
I further conclude and
find that the work refusal by the two complainants was protected activity under the Act, and that their discharge by
the respondent for this reason constitutes a violation of
section 105(c)Cl) of the Act.
The Relief Due the Complainants
Mr. Kennedy testified that after his discharge by the
respondent on August 23, 1984, he was unemployed for approximately a month and a half. He then found a job with the
Cumberland Coal Company earning $80 a shift, and worked there
for 5 weeks. He then went to work for the Tripple G coal
Company earning $70 to $110, but was subsequently laid off

561

and has been unemployed since September 1, 1985 (Tr. 81-94).
He worked continuously for Cumberland and Tripple G, until
his lay off from the latter company, and then worked for
approximately a month and a half at the Rookie Coal Company
until his lay-off on September 1, 1985 (Tr. 94).
Mr. Collins testified that after his discharge by the
respondent on August 23, 1984, he attempted to find other
employment but could not find a job until April, 1985. He
confirmed that he received no unemployment benefits because
he had used up all of his eligibility.for such benefits. He
stated that he found a job in April, 1985, with the Coon
Branch Construction Company where he is presently employed
earning $80 per shift. Prior to this current employment, he
worked for 2 weeks with the Bartlett Tree Trimming Company
earning $4 an hour, but was laid off (Tr. 68-69).
The respondent opted not to file any posthearing arguments or to otherwise file any arguments mitigating its .
liability in these proceedings.
In its posthearing brief,
MSHA asserts that the remedial goal of section 105(c) is "to
restore the [victim of illegal discrimination] to the situation he would have occupied but for the discrimination."
Bailey v. Arkansas-Carbon Co. & Walker, 3 MSHC 1145, 1150
Cl983)~ Secretary on behalf of Dunmire and Estle v. Northern
Coal Co., 2 MSHC 1585, 1595 Cl982). MSHA states that unless
compelling reasons point to the contrary, the full measure of
reli
should be granted to an improperly discharged employee,
including back pay with interest. Bailey v. Arkansas-Carbona
Co. & Walker, at 1150-1151. Since in this case the complainants were fired for engaging in protected activity, MSHA
asserts that they must be made whole for any loss they suffered as a result of the discrimination, including full back
pay. MSHA points out that the respondent bears the burden of
proof with regard to any allegation of willful loss of pay.
Secretary v. Metric Constructors, Inc., 3 MSHC 1259, 1265
(1984), aff'd sub nom. Brock on behalf of Parker v. Metric
Constructors, me.~ MSHC 1865 {11th Cir. 1985).
MSHA points out that at the time Mr. Brewster offered
the complainants their jobs back, they rejected the offer
because they believed Mr. Sweeney would again require them to
work under unsupported roof. Mr. Collins testified that when
Mr. Brewster offered to take them back, he stated "We'll forget thi's ever happened." When Mr. Collins questioned whether
they would again be required to work under unsupported roof,

562

Mr. Brewster responded "that's the way we do it" (Tr. 57),
and when Mr. Collins asked for another work assignment,
Mr. Brewster refused.
Mr. Kennedy testified that he and Mr. Collins advised
Mr. Brewster that they would take their jobs back as long as
they were not required to work under unsupported roof. He
stated that Mr. Brewster replied "that 1 s the way we always .
work," and that if they did not return to work they did not
have a "leg to stand on" (Tr. 91).
I take note of the fact that at the time Mr. Brewster
made the of fer to the complainants to return to work, he did
so in the presence of an MSHA inspector and after an inquiry
by the inspector as to whether the complainants had in fact
been fired for refusing to work under unsupported roof.
Mr. Brewster testified that when he made the offer, the complainants refused and commented that the company would find
another excuse to fire them. Mr. Brewster also testified
that when he made the offer, it was contingent on his speaking with Mr. Sweeney to ascertain why he had fired the complainants. He subsequently was told by Mr. Sweeney that the
complainants were fired for "goofing off," and he obviously
believed Mr. Sweeney's version of the incident.
In view of the foregoing, I agree with MSHA's arguments
that the reluctance of the complainants to accept
Mr. Brewster's conditional offer to return to work, in the
circumstances then presented, did not constitute a willful
loss of pay on their part.
I also agree with MSHA that the
respondent has not established a willful loss or pay which
would entitle it to mitigate its liability or obligation to
make the complainants whole.
Mine operator Jordan testified that the No. 1 Mine was
completely mined out and closed in March, 1985 (Tr. 227-228).
He confirmed that his company reopened a new mine on
October 15, 1985, but he was not aware that any employees who
worked at the old No. 1 Mine are now employed at his new operation (Tr. 237). The hiring of new employees is left to the
mine superintendent Leeland Hess, and he identified the mine
foremen as Jim Cook and Gerald Hess (Tr. 237).
Mr. Sweeney testified that he is unemployed, and that he
left his employment with the respondent on March 15, 1985
(Tr. 161). Mr. Brewster testified that he is currently
employed by the Vesta Mining Company, and that he left the
respondent's employ during the last week of March, 1985,
because the No. 1 Mine "was mining out" (Tr. 110-112).

563

The back pay provisions of section 105(c), like the corresponding provisions of Title VII of the Civil Rights Act,
appear to be modeled on section lO(c) of the National Labor
Relations Act, 29 u.s.c. § 160(c). Cf. Albemarle Paper Co.
v. Moody, 422 U.S. 405, 419 (1985). Questions arising under
it should therefore be resolved by reference to NLRB precedent.
Id. The general rule is that back pay is the difference between what the employee would have earned but for the
wrongful discharge and his actual interim earnings. OCAW v.
NLRB, 547 F.2d 598 (D.C. Cir. 1976). In practice, this means
gross pay minus net interim earning equals the award.
Respondent, of course, is responsible for complying with applicable
state and Federal laws on withholding. Cf. Social Security
Board v. Nieratko, 327 U.S. 358 (1946).
MSHA asserts that since the respondent did not present
any evidence that the complainants would have been discharged
prior to the closing of the mine for non-discriminatory reasons, it has not met its burden of proof, and that back pay
should be awarded to the complainants at the rate of $70 per
day for the period from August 23, 1984 until the March 31,
1985. Taking into account the testimony of Mr. Collins and
Mr. Kennedy with respect to their periods or unemployment and
employment subsequent to their discharge, MSHA states that
Mr. Kennedy is entitled to back-pay compensation in the amount
of $2,170, with interest, which includes pay for Friday,
August 24, 1984, and $350 per week for the next 6 weeks. With
regard to the compensation for Mr. Collins, MSHA states that
he is entitled to back-pay in the amount of $10,600, with
interest, which includes pay for Friday, August 24, 1984, and
$350 per week for the next 31 weeks with a deduction of $320
for his earnings with the tree trimming company. MSHA states
that interest for both complainants should be determined in
accordance with the Commission approved formula set out in
Secretary, ex rel Bailey v. Arkansas-Carbona Co. & Walker,
3 MSHC 1145 (1983); 5 FMSHRC 2042, 2050.
ORDER
The respondent IS ORDERED to pay to the complainant Earl
Kennedy the sum of $2,170, less any amounts normally withheld

564

pursuant to state and Federal law, with interest to the net
back-pay award at a rate of 9 percent until it is paid.~/
The respondent IS ORDERED to pay to the complainant Larry
Collins the sum of $10,600, less any amounts normally withheld
pursuant to state and Federal law, with interest to the net
back-pay award at a rate of 9 percent until it is paid.l/
Payment is to be made to both complainants within thirty
C30) days of the date of this decision and order.
Civil Penalty Assessment
On the basis of my prior findings and conclusions, the
respondent's discharge of the complainants was in violation
of section 105(c)(l), and a civil penalty assessment may be
levied against the respondent for the violations.
MSHA argues that the violation was very serious, and it
requests a civil penalty assessment in the range of $1,000 to
$1,200.
I agree that the violations were serious. The respondent's discharge of the complainants for refusing to work
under unsupported roof constitutes a negligent disregard for
their safety, and the respondent has advanced no arguments in
mitigation of the violations.
The record reflects that the respondent is a small mine
operator, and the No. 1 Mine is now closed. However, mine
operator Jordan is still in business and operates other mines.
The respondent has not established that the payment of a civil
penalty in the amounts suggested by MSHA will adversely affect
its ability to continue in business, and I conclude that it
will not.
1/ This is the current adjusted prime rate used by the
Internal Revenue Service for underpayments and overpayments
of tax. Rev. Ruling 79-366. The NLRB also uses this figure
to compute interest on back pay awards. Florida Steel Corp.,
231 N.L.R.B. No. 117, 1977-78 CCH NLRB Para. 18,484; North
Cambria Fuel Co., Inc., v. N.L.R.B., 645 F.2d 177 (3rd Cir.
1981); Secretary ex rel Bailey v. Arkansas carbona Coal &
Walker, 5 FMSHRC 2042, 2050 (Dec. 1983).

565

MSHA has submitted exhibits C-9 and C-10, two computer
print-outs listing the assessed violation history for the
Raven Red Ash Coal Corporation No. l· Mine for the period
August 23, 1982, to August 22, 1984 (C-9), and the violations
history for all mines controlled by Mr. David Jordan for the
period August 23, 1982, to August 22, 1984, (C-10). Exhibit
C-9 reflects 42 section 104Ca) citations and one section
104(a)-107{a) order for which the respondent was assessed
$3,130, and has paid nothing. Exhibit C-10 reflects 157 section 104(a) citations and three orders for which the respondent was assessed $7,069, and has paid· $1,255.
During the course of the hearing, the respondent objected
to any consideration of violations issued prior to August
1984, on the ground that the mine was owned by a different
corporation, the Virginia and West Virginia Coal Corporation,
and that Mr. Jordan was not the owner of that company. MSHA
submitted information to the contrary by letter and enclosures
of January 9, 1986, and the respondent filed nothing in .
response to that information and has not rebutted MSHA's assertion that Mr. Jordan was the owner and controller of both corporations.
In an order issued by me on February 13, 1986, the
respondent's objections were overruled, and I concluded that
the compliance history of the Raven Red Ash Coal Corporation,
as well as the prior corporate entity for the No. 1 Mine, both
of which were owned and operated by Mr. Jordan, are relevant
to any civil penalty assessment levied in this proceeding. My
interlocutory ruling in this regard is herein REAFFIRMED. The
respondent has had ample opportunity to challenge, the accuracy
of the information contained in the computer print-outs, but
it has not done so.
I take note of the fact that while the respondent has
been assessed civil penalties for its prior infractions of
the mandatory safety standards promulgated by MSHA under the
Act in Part 75, Title 30, Code of Federal Regulations, it has
made few payments. According to the computer codes reflected
on the print-outs, most of the assessments have been the subject of MSHA demand letters for payment, and many have ended
up as default judgments filed in the United States district
court. Although Mr. Jordan is still in business and operating other mines, he has apparently failed to meet his obligations in paying civil penalties, and I have considered this
in the civil penalty assessed for the violation in question.
I have also considered the fact that the respondent has not
previously been the subject of discrimination complaints or
violations of section 105(c)(l) of the Act.

566

In view of the foregoing, and after consideration of the
civil penalty criteria found in section llO(i) of the Act, I
conclude and find that a civil penalty assessment of $1,000
is reasonable and appropriate for the violations which are
the subject of these proceedings.
ORDER
The respondent IS ORDERED to pay a civil penalty in the
amount of $1,000 for the violations in question, and payment
is to be made to MSHA within thirty {3.0) days of the date of
this decision and order.

~~~

.,/'~~istrative Law Judge
Distribution:

Sheila K. Cronan, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Room 1237A,
Arlington, VA 22203 (Certified Mail)
Daniel R. Bieger, Esq., Copeland, Molinary & Bieger, P.O.
Box 1296, Abingdon, VA 24210 (Certified Mail)
/f b

567

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

April 8, 1986.

JIM WALTER RESOURCES, INC.,
Contestant

:

CONTEST PROCEEDING

:

v.

:

Docket No. SE 85-36-R
Order No. 2482922: 12/4/84

..
.: No. 4 Mine
.
..

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

.
:

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

CIVIL PENALTY PROCEEDINGS

:

Docket No. SE 85-62
A.C. No. 01-01247-03641

v.
:

Docket No. SE 85-123
A.C. No. 01-01247-03664

:

No. 4 Mine
JIM WALTER RESOURCES, INC.,
Respondent

:

.

Docket No. SE 85-109
A.C. No. 01-01401-03597
Docket No. SE 85-124
A.C. No. 01-01401-03607
No·. 7 Mine

DECISIONS
Appearances:

Robert Stanley 'Morrow and Harold D. Rice,
Esqs., Jim Walter Resources, Inc., Birmingham,
Alabama, for Contestant/Respondent;
George D. Palmer, Esq., Office of the
Solicitor, U.S. Department of Labor,
Birmingham, Alabama, for
Respondent/Petitioner.

Before:

Judge Koutras

568

Statement of the Proceedings
These proceedings concern civil penalty proposals filed
by the petitioner against the respondent pursuant to section
llOCa) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 820(a), seeking civil penalty assessments for
four alleged violations of certain mandatory safety standards
found in Part 75, Title 30, Code of Federal Regulations.
Docket No. SE 85-36-R is a contest filed by Jim Walter
Resources, Inc., challenging the legality of section 104(d)(2)
Order No. 2482922, which is the subject of civil penalty
Docket No~ SE 85-62.
The respondent filed timely answers contesting the proposed civil penalties and hearings were held in Birmingham,
Alabama. The parties waived the filing of posthearing proposed findings and conclusions. However, all oral arguments
made by counsel on the record during the course of the hearings have been considered by me in the adjudication of these
cases.
Issues
The critical issue presented in these proceedings is
whether or not the respondent is obliged to maintain its ventilation line curtains within 10 feet of all faces, or only
the working faces from which coal is being extracted or was
most recently extracted.
In determining the amount of a civil penalty assessment,
section llO(i) of the Act requires consideration of the following criteria:
Cl) the operator's history of previous violations, (2) the appropriateness of such penalty to the size
of the business of the operator, (3) whether the operator was
negligent, (4) the effect on the operator's ability to continue in business, (5) the gravity of the violation, and (6)
the demonstrated good faith of the operator in attempting to
achieve rapid compliance after notification of the violations.
Applicable Statutory and Regulatory Provisions

1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et ~·

u.s.c. § 820Ci).

2.

Section llQ(i) of the 1977 Act, 30

3.

30 C.F.R. § 75.316.

4.

Commission Rules, 29 C.F.R. § 2700.l et seg.

569

Stipulations
The parties stipulated to the f·ollowing:
1. The respondent is the owner and operator of the subject mine.
2. The respondent and the mine are subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977.
3. The Administrative Law Judge has jurisdiction in these cases.
4.
The MSHA Inspectors who issued the
subject orders or citations were authorized
representatives of the Secretary.

5. A true and correct copy of the subject orders or citations were properly served
upon the respondent.
6. Copies of the subject orders or citations and determinations of violations at
issue are authentic and may be admitted into
evidence for purpose of establishing their
issuance, but not for the purpose of establishing the truthfulness or relevance of any statements asserted therein.

7o The imposition of civil penalties in
these cases will not affect the respondent's
abili~y to continue in business.
8. The alleged violations were abated in
good faith.
9. The respondent's history of prior
violations is average.
10. The respondent is a medium-size mine
operator.
The violations in issue in these proceedings are as
follows:

570

Docket Nos. SE 85-62 and SE 85-36-R
Section 104Cd)(2) 11 S&S 11 Order No. 2482922, was issued at
2:10 p.m., on December 4, 1984, and it cites a violation of
mandatory safety standard 30 C.F.R. § 75.316. The condition
or practice is described as follows:
The companies (sic) approved ventilation
plan was not being complied with in that the
curtain line in No. 2 entry on the No. 13 section measured 24 feet from the face.
They had
turned a crosscut from the No. 2 entry toward
the No. 1 entry on the curtain line side leaving the No. 2 entry 24 feet from the deepest
penetration. The companies Csic) approved
ventilation plan states that the line brattice
shall be maintained within 10 feet of the area
of deepest penetration of all faces in all
working places inby the last open crosscut at
all times, except while roof bolting and servicing as stated in the plan.
Docket No. SE 85-109
Section 104(d)(2) 11 S&S 11 Order No. 2481092, was issued at
11:02 a.m., on April 8, 1985, and it cites a violation of
mandatory safety standard 30 C.F.R. § 75.316. The cited condition or practice is described as follows:
The current approved ventilation methane
and dust control plan was not being complied
with on the No. 11 section (011-0) in that the
line curtain was 19 feet from the point of
deepest penetration of the face of the No. 2
entry. The plan requires line· curtain be maintained within 10 feet of all working places
inby the last open crosscut at all times.
Docket No. SE 85-124
Section 104(a) "S&S" Citation No. 2347351, was issued at
2:20 p.m., on April 13, 1985, and it cites a violation of
mandatory safety standard 30 C.F.R. § 75.503. The condition
or practice is described as follows:
The Joy model 12, S/N 3524 and approval
No. 2G-33344A-00 being operated in the faces
of the No. 6 active section to cut and load
coal from these faces was not being maintained

571

in permissible condition in that an opening in
excess of .004 inches was observed in the lid
of the control box.
Section 104(d)(2) "S&S" Order No. 2482911, was issued at
6:00 a.m., April 13, 1985, and it cites a violation of mandatory safety standard 30 C.F.R. § 75.316. The condition or
practice is described as follows:
The current approved ventilation and methane and dust control plan was not being complied with in the No. 3 entry on the No. 6
section. The line brattice was measured to be
34 feet from the face of the No. 3 entry. The
plan states that line brattice shall be maintained to within 10 feet of the area of deepest
penetration of all faces in all working places
inby the last open crosscut at all times except
while roof bolting. Roof bolting was not being
performed in the entry and a distance greater
than 10 feet has not been granted by the MSHA
District Manager.
Docket No. SE 85-123
Section 104(d)(2) "S&S" Order No. 2346556, was issued at
9:40 a.m., on April 15, 1985, and it cites a violation of
mandatory safety standard 30 C.F.R. § 75.316. The cited condition or practice is described as follows:
"The approved
ventilation methane and dust-control plan was not being complied with in the No. 5 entry crosscut right in that the line
brattice was 17 feet from the face. The approved plan
requires that line brattice be maintained to within 10 feet
of all working places."
The parties stipulated that the issue concerning the
alleged violations of mandatory safety standard 30 C.F.R.
§ 75.316, and the contestant/respondent's approved ventilation and methane and dust-control plan are identical to the
issue presented in the case of MSHA v. Jim Walter Resources
Inc., Docket No. SE 85-42, decided by
on
September 27, 1985, 7 FMSHRC 1471. The parties agreed that
the issue presented is that stated by Judge Broderick at
7 FMSHRC 14 74, as follows:
"Whether respondent is obliged to
maintain line curtain within 10 feet of all faces, or only
the face from which coal is being extracted or was most
recently extracted?"

572

The parties also stipulated and agreed that the 11 face 11
issues with respect to the ventilation plans in all of these
cases are identical and that my dispositive determination of
this issue in Docket No. SE 85-109, is dispositive of all of
the subject cases. The parties also agreed and stipulated
that the alleged violations are accurately deacribed and evaluated in the appropriate sections of the respective orders and
that the preconditions of the respective orders (unwarrantable
failure, no 11 clean 11 inspection, etc.) are met if the "face"
issue determination is made in favor of MSHA's-Position.
In the prior decision by Judge Broderick, he concluded
that the respondent was in violation of its approved ventilation plan by failing to maintain line curtain within 10 feet
of the face in the No. 3 entry on the No. 4 section in the
No. 4 Mine. His dispositive ruling (conclusion of law) is
stated as follows at 7 FMSHRC 1474-1475:
3. The approved ventilation, methane and
dust control plan in effect at the subject
mine on November 13, 1984 required that line
curtains be maintained within 10 feet of all
faces in all working places. A "coal face" is
defined in A Dictionary of Mining, Mineral and
Related Terms, U.S. Department of the Interior
( 19 68 > as
a. The mining face from which
coal is extracted by longwall,
room, or narrow stall system.
Nelson. b. A working place in a
colliery where coal is hewn, won,
got, gotten from the exposed face
of a seam by face workers.
Pryor, 3.
This definition obviously is not limited to
the time during which coal is actually being
extracted.
It includes working faces as well
as faces from which coal has been or will be
extracted. The language of the approved plan
is all inclusive and clearly includes entry
No. 3 cited in this case. The obvious purpose
of the changes made in 1972 was to go beyond
the requirement of 30 C.F.R § 75.302-l(a) that
line brattice be installed no more than 10 feet
from active working faces. All faces, including idle faces, are covered by the plan. The
reason for their inclusions is the unusually

573

high methane liberation in the mine. Respondent argues that the requirement is onerous
and that it has not been enforced by MSHA
prior to 1984. Neither of these arguments can
affect the interpretation of the wording of
the plan, and I reject them.
MSHA's Testimony and Evidence
With regard to Order No. 2482922, issued in civil penalty
Docket No. SE 85-62 and contest Docket No. SE 85-36-R, Order
No. 2482911 issued in civil penalty Docket No. SE 85-124, and
Order No. 2346556, issued in SE 85-123, the parties agreed
that MSHA need not present testimony from the inspectors who
issued those orders since their testimony would be the same as
the inspector who issued Order No. 2481092 in civil penalty
Docket No. SE 85-109. The parties agreed that all of these
orders present common issues of the application and enforcement of mandatory standard section 75.316, and the respondent's ventilation plan {Tr. 90-92; 256-258).
MSHA Inspector Judy McCormick confirmed that she
inspected the No. 7 Mine on April 8, 1985, and issued Order
No. 2481092, {Docket No. SE 85-109). She identified exhibit
G-3 as a sketch of the underground scene and confirmed that
it accurately portrays the condition she cited. She stated
that coal was being mined at the point shown by an "X" on the
sketch and that the violation occurred at point "Y" where the
face had been penetrated. The line curtain depicted by the
dotted line was located 19 feet outby that "Y" face, and
since the ventilation plan required that the curtain be maintained to within 10 feet of all faces, she issued the
violation (Tr. 96).
Ms. McCormick stated that the hazard presented in not
having the curtain to within 10 feet of a face is the possibility of methane accumulations at the "Y" face, and she noted
the direction of the air ventilating the entry by the arrows
shown on the sketch (Tr. 98). ·She confirmed that the ventilation plan, exhibit G-1, at page 10, requires that a minimum
of 17,000 cubic feet of air reach the end of the line brattice
where coal is being cut. Since coal was not being cut at the
"Y" face, only 7,000 cubic feet of air was required at that
location (Tr. 98-99).
On cross~examination, Ms. McCormick stated that she made
a methane test and found less than one percent of methane at
the "Y" face, and she confirmed that her interpretation of
the plan was made to prevent a potential buildup of methane,

574

and that was the reason why she believed the line curtain
should have been installed to within 10 feet of the face in
question (Tr. 101). She confirmed that all of the area shown
on the sketch was idle at the time of her inspection, and
that the most recently mined area was at the point marked 11 X 11 •
She estimated that the respondent had turned away from the
point marked "Y" and began mining toward the point marked "X"
several days earlier than the day of her inspection (Tr.
101-102).
Ms. McCormick defined a "working face" as an area from
which coal is extracted on the mining cycle. She stated that
the law does not provide a legal definition of the term
"face," and she would "guess" that it means an area from which
coal is to be extracted or is being extracted (Tr. 102). She
stated that since the area shown as "Y" had been penetrated,
she would consider it a "face" requiring line brattice to
within 10 feet.
Had the area not been penetrated, and
although respondent defines it as a "rib," she would still
"theoretically" consider it to be a "face" because coal will
in the future be extracted from that location. She confirmed
that anywhere that coal is planned to be extracted would be a
"face" subject to the ventilation plan requirement for line
brattice (Tr. 104-106).
Ms. McCormick confirmed that she made no smoke tube test
in the "Y" face area to determine the amount of ventilation
or air circulation in that area (Tr. 110). She explained
that the violation was issued for failure to maintain the
line brattice to within the required distance of that face 1
and not for a failure to maintain proper air velocity (Tr.
112-113)0
Ms. McCormick stated that the areas marked "X" and "Y"
on the sketch are both working places. She indicated that
the area marked "X" is penetrated for approximately 50 feet,
and that area "Y" is penetrated for some 8 feet.
In both
instances, "X" and "Y" would both be the deepest penetration
working faces of working places (Tr. 117).
Ms. McCormick stated that while "X" and "Y" are both
working places, mining could not take place simultaneously at
those locations because two miners would be operating on one
split of air, and that is not permissible. She considers
both "X" and "Y" to be "working places," but not "working
faces," and since the ventilation plan addresses "faces of
working places," she considers both locations to be "faces of
working places" (Tr. 120).

575

Ms. McCormick confirmed that at the time of the inspection, a brattice curtain was within the required 10 feet of
the "X" working face where coal had .last been cut (Tr. 121).
Although she could test for air movement at location "Y," and
the total air intake into the No. 2 entry, she would have no
way of determining the amount of air flowing into area "Y"
(Tr. 122). She confirmed that abatement was achieved by
advancing the curtain at an angle as shown on the sketch,
(Tr. 126), and she conceded that this presented a possible
hazard because there would be a visibility problem between
the mining machine and shuttle car, and to some extent the
respondent would be forced to operate through the curtain.
However, she explained that this problem was created by turning the crosscut as depicted on the sketch, and that had it
been turned from the side to the left of the "Y" area the
problem would not exist (Tr. 124).
William H. Meadows, MSHA supervisory mining engineer,
testified that he is a graduate professional mining engineer,
and that he has engaged in the review and approval of mine
ventilation plans since 1969. He stated that the ventilation
plan changes concerning the respondent's No. 4 and No. 7 Mines
occurred in 1972 after a frictional methane ignition occurred
in the No. 3 Mine. The ignition occurred when a continuousmining machine was scraping the bottom after a line curtain
was taken down after the working face was mined. A citation
was issued for a violation of section 75.316, but after a
determination was made that coal was not being mined and that
the line brattice was within 10 feet of the working face, the
violation was voided and the case was dismissed. He confirmed
that he was called upon to furnish his expert opinion in that
case, and on the basis of the facts of that case, he concurred
in the decision that a violation could not be supported.
Mr. Meadows stated that as a result of the prior litigation, the language of the ventilation plan for the No. 3 Mine
was changed, and the words "working faces" were changed to
reflect a requirement that "all faces" would in the future be
required to have line curtains· installed to within 10 feet.
The requirement that line curtains "be maintained to within
10 feet of the area of deepest penetration of all faces in
all working places inby the last open crosscut except while
roof bolting and servicing as stated in the plan" was also
included in all subsequent plans approved by MSHA for the
No. 4 and No. 7 Mines.
Mr. Meadows confirmed that the term "faces" is not
defined by MSHA's regulations.
In his opinion, one has to
assume from the history and literature on the subject of mine

576

ventilation that the requirement for maintaining line brattices to within 10 feet of the face implies that they be so
maintained at all mine faces, including idle faces.
Mr. Meadows pointed out that the respondent's old ventilation plan simply paraphrased the requirements of section
75.302-l(a), which required that line brattices be maintained
to within 10 feet of the area of deepest penetration of th~
working face.
The purpose in adding the new language was to
distinguish between "working faces" as it existed in the law
and plan at that time and "all faces in all working places"
(Tr. 14 0).
Mr. Meadows also pointed out that section 75.308 makes
reference to methane accumulations in face areas of working
places, and line brattices are not specifically mentioned.
While there are regulatory definitions for the terms "working
places" and "working faces," there is no definition of a face.
However, he believes that one must assume a definition from
past experience, enforcement, and research.
"Faces" would
result after one has "worked a face." Once a "working face"
has been cut, mined, and loaded, the dropping of the word
"working" means "it's no longer being worked, it now becomes
a face" (Tr. 141).
Mr. Meadows referred to a February 1969 Bureau of Mines
pamphlet, Exhibit ALJ-1, and pointed out that the term "working face" is not used. He described the ventilation tests
covered by the publication, and he indicated that when a continuous miner penetrates a coalbed, it extracts coal from a
working face. When the miner ceases operation, that working
face becomes a face, and if he were to conduct a study similar to the one covered in the publication, he would refer to
the "working face" simply as a "face" similar to the reference made in the publication (Tr. 142-143).
Mr. Meadows stated that the respondent's mines freely
liberate methane at all faces, including idle faces, and that
the mines are among the top 10 percent of all mines nationally with respect to methane liberation (Tr. 144-145).
Ref erring to the sketch of the No. 2 entry of the No. 7
Mine, exhibit G-3, Mr. Meadows stated that he would consider
the areas marked "X" and "Y" as faces.
If coal were being
cut at "X" and not at "Y," he would consider the former a
working face, and the latter an idle face.
He explained that
the reason the language "all faces" was included in the MSHA
approval letters accompanying the respondent's ventilation

577

plan is to take into account the fact that in a working place
there may be more than one face (Tr. 146).
On cross-examination, Mr. Meadows stated that at the
time an initial cut of coal is taken, that area becomes a
working face.
If no coal cuts are made, the area remains a
rib until such time as a coal cut is taken.
He further
explained that if he observed coal being cut, he would consider it a working face, and if work stopped after the initial cut, he would consider it simply as a face (Tr. 151).
When asked whether such a cut would remain a working face
between shifts when no production is taking place, he replied
"To me, a working face is only when you cut it, mine it, or
load it, or the district manager specifies some other operation such as roof bolting, blasting, clean-up" CTr. 52).
Mr. Meadows confirmed that the respondent's ventilation
plan is one of the most stringent plans in the country.
He
agreed that while theoretically possible, due to the manner
in which the crosscuts in question were turned, the respondent would have difficulty in maintaining a line curtain to
within 10 feet of "Y" while cutting coal at face "X" (Tr.
154-155).
Mr. Meadows stated that the terms "working face" and
"face" have different meanings to him, but he conceded that
during his testimony in a prior case before Judge Broderick
with respect to the term "face" he testified that "Our intention was that the line curtain would be maintained to all
faces.
You can pick the word 'working faces' or 'face'; it's
all faces" (Tr. 159). He conceded that he did not differentiate the-terms in his prior testimony, but pointed out that
the word "working" brings a new meaning to the term "faces"
because of the use of that term in the regulation.
He further conceded that the regulation does not use the term
"faces" by itself (Tr. 160).

Mr. Meadows conceded that the requirement for line brattice to be maintained to within 10 feet of all faces is not
specifically stated in the respondent's plan in clear language, and he alluded to the plan provisions at pages 10
through 13 where the term face is used, and indicated that "A
face, if you want to call it a working face or a face.
They're one in the same" (Tr. 165-167).
Mr. Meadows confirmed that were it not for the plan provision in this case, an inspector could not cite a violation
of section 75.302-1, at locations "X" and "Y" because there
was no mining activity taking place at those locations and

578

they would not be considered "working faces" at the time of
the inspection. If mining was taking place, then an inspector
could cite section 75. 302-1, but at ·location "Y" no citation
could be issued unless the district manager had designated it
as another "working face" used for bolting, servicing, or it
was designated as an idle face.
Rather than doing this, the
district manager elected to drop the word "working" from the
plan, and used the phrase "all faces" (Tr. 178).
Mr. Meadows stated that the area "Y" was mined and developed in the No. 2 entry, and while it was being mined it was
a "working face." When mining ceased, it became a "face"
which was required under the plan to have line brattice to
within 10 feet.
There is no plan provision to remove that
brattice from the "Y" area. Had "Y" not been cut for a distance of 8 feet it would still technically be considered a
"face" because it was developed as the face of the No. 2
entry.
In the event the respondent does not consider it a
face, he suggested that it file a supplemental ventilation
plan requesting approval not to maintain the line curtain at
that location (Tr. 180).
Mr. Meadows stated that a face in any mine in any place
where future mining is planned is a potential face, but that
he would not require a brattice at the area to the right of
the sketch off entry No. 2 which has not actually been mined
or cut unless it had actually been developed as a face up to
that point (Tr. 182). He conceded that his prior testimony
in the earlier litigation indicated that even if the respondent intended to turn right, he would still consider it a
"face" CTr. 183).
With regard to the method of abatement in the instant
case, Mr. Meadows confirmed that a potential hazard is created
by installing the line curtain to within 10 feet of the "Y"
area as was done in this case. The hazards concern a possible
short circuiting of the air and a visibility problem in that
equipment will run through the curtain.
Some mines use clear
curtains so that miners can see through it (Tr. 184). However, he believed that such problems would not occur if the
respondent had cut through from the "non-curtain side," or if
the crosscuts had been mined from left to right (Tr. 185).
In
the instant case, the violation was issued because the inspector found that the line curtain was not maintained to within
10 feet of "Y," which was the point of deepest penetration in
the No. 2 entry (Tr. 189)~
Daryl Dewberry testified that he is the president of the
local union, a member of the mine safety committee, and is

579

employed by the respondent as a continuous miner operator at
the No. 7 Mine. He is familiar with the violation issued by
r·nspector McCormick, and in his opinion, because of the equipment operating in the area, it would be impossible to maintain
a line curtain to within 10 feet of face "Y" without taking it
down. He stated that the respondent's No. 7 Mine ranks number
two nationwide in incidents of methane ignition, and that the
No. 3 Mine ranks number one (Tr. 191-196).
On cross-examination, Mr. Dewberry stated that he
believed the 8-foot cut into the "Y" f·ace was a mistake and
that the spads were simply overcut. Normally, the rib would
come straight across at that point. He also believed that it
would have been more practical to turn right off the No. 2
entry and cut from the off-curtain side because the ventilation curtain could then be maintained to within 10 feet of
the face in all penetration areas (Tr. 202-204).
Respondent's Testimony and Evidence
Thomas E. McNider testified that he is the respondent's
deputy manager for ventilation, and he confirmed that his
duties include the development of mine ventilation plans.
He
stated that the applicable mine ventilation plans for the
respondent's No. 3 and No. 7 Mines all make reference to working faces where actual work is being performed. He believed
that the mine faces referred to in the plans must necessarily
be interpreted as working faces, and that the use of the language all faces as referred to in MSHA's covering letters
approving the plans must be construed to mean working faces
in order to be consistent with the actual plans submitted by
the respondent.
Referring to the sketch of the No. 2 entry in question,
exhibit G-3, Mr. McNider was of the opinion that the area
marked "X" on the sketch is a working face, but that the
cited area marked "Y" is a rib. He also believed that the
area to the right of the developed crosscut as shown on the
sketch, even though a potential crosscut, is in fact a rib.
He believes there is but one working face in a working place.
Mr. McNider stated that advancing the ventilation brattice to within 10 feet of the purported face designated "Y"
on ~he sketch to achieve abatiment in this case constituted a
hazard in that the brattice curtain would short circuit the
air moving along that location. The brattice would also cut
down on the visibility and would subject the brattice to
being torn down by equipment moving through the area (Tr.
216).

580

Mr. McNider stated that as faces are advanced, there are
four working places and four working faces. Working faces
are turned to establish new crosscuts. As a crosscut is
established to the left and then advances to the right, at
that point in time the right "rib" becomes a face and the
previously mined "face" becomes a rib (Tr. 216). Holing
through the crosscut as was done in this case is proper
because the "X" area becomes the working face and the line
curtain would be maintained to within 10 feet of that face,
or the point of deepest penetration, and machines would not
be running through the curtain (Tr. 218).
On cross-examination, Mr. McNider confirmed that the
respondent's No. 3 and No. 7 Mines were opened in the 1970's.
He believed that the crux of the issue presented in these
proceedings turns on the definition of the term "face." It
is his position that the positioning of the ventilation brattice devices as referred to in the mine ventilation plans
ref er to working faces where coal is actually being cut and
mined, and that MSHA's position is that the requirements
apply to all faces, including those which are idle and not
being actively or currently mined.
Mr. McNider stated that any methane present at point "Y"
on the sketch would be under 1 percent, and if any is detected
it would be cleared up. He also indicated that the majority
of the methane at the respondent's mines is generated while
coal is actually mined at the cutting face, and that any methane generated at the ribs is of a lesser degree and magnitude.
He also pointed out that the majority of methane ignitions
occur at the working face when a continuous miner is scraping
bottom, and he could think of none which have occurred at an
idle face. Although an ignition could ocur at an idle face,
some work activity has to be taking place, and if this were
the case, the face would no longer be an idle face (Tr. 227).
Mr. Meadows was called in rebuttal, and he stated that
there is a potential for methane build-up at an idle face
area, and that potential ignition hazards are presented when
work is performed in the area, or equipment and cables are
present. He confirmed that a ventilation survey he supervised
indicated that there were 15 methane ignitions in the No. 7
Mine in fiscal year 1985. Assuming that the mine did not liberate methane freely, he was of the view that the term "all
faces" would probably not be part of the mine ventilation plan
(Tr. 242). He believed that the respondent is the only mine
operator that has the "all faces" provision as part of its
plan, with the possible exception of U.S. Steel (Tr. 243).

581

On cross-examination, Mr. Meadows stated that methane
tests are required to be made in alL working places inby the
last open crosscut before any equipment is brought in. He
stated that if methane is detected and not taken care of it
presents a potential ignition source. He stated that in the
State of Alabama the average methane liberation in the active
working faces while coal is being cut is 25 cubic feet per
minute, but at the respondent's mines, the methane liberation
at an active working face ranges from 300 to 500 cubic feet a
minute, and under 300 cubic feet a minute at an idle face
(Tr. 248). He conceded that he did not know how many of the
15 ignitions that he referred to occurred at the longwall or
whether they occurred in situations similar to the facts presented in this case. He also conceded that the 15 ignitions
in question are not relevant to the instant case (Tr. 250).
Discussion
30 C.F.R. § 75.316 provides as follows:
A ventilation system and methane and dust
control plan and revisions thereof suitable to
the conditions and the mining system of the
coal mine and approved by the Secretary shall
be adopted by the operator and set out in
printed form on or before June 28, 1970. The
plan shall show the type and location of
mechanical ventilation equipment installed and
operated in the mine, such additional or
improved equipment as the Secretary may
require, the quantity and velocity of air
reaching each working face, and such other
information as the Secretary may require.
Such plan shall be reviewed by the operator
and the Secretary at least every 6 months.
30 C.F.R. § 75.2(g) provides as follows:
(g)(l)
"working face" means any place in
a coal mine in which work of extracting coal
from its natural deposit in the earth is performed during the mining cycle,
(2)
"Working place" means the area of a
coal mine inby ~he last open crosscut,

582

( 3)
"Working section" means all areas of
the coal mine from the loading point of the
section to and including the working faces,
(4)
"Active workings" means any place in
a coal mine where miners are normally required
to work or travel1
30 C.F.R. § 75.302, provides in part as follows:
(a) Properly installed and adequately
maintained line brattice or other approved
devices shall be continuously used from the
last open crosscut of an entry or room of each
working section to provide adequate ventilation to the working faces for the miners and
to remove flammable, explosive, and other
noxious gases, dust, and explosive fumes, * *
*
(Emphasis added.)
30 C.F.R. § 75.302-l(a) provides as follows:
(a) Line brattice or any other approved
device used to provide ventilation to the working face from which coal is being cut, mined
or loaded and other working faces so designated by the coal Mine Safety Manager, in the
approved ventilation plan, shall be installed
at a distance no greater than 10 feet from the
area of deepest penetration to which any portion of the face has been advanced unless a
greater distance is approved by the Coal Mine
Safety District Manager of the area in which
the mine is located.
(Emphasis added.)
In Docket No. SE 85-109, Inspector McCormick issued
Order No. 2481092 after finding that a ventilation brattice
curtain installed 19 feet from the point of deepest penetration in the No. 2 entry (location "Y" as shown on sketch
exhibit G-3). The inspector considered that location to be a
face in the working place which requires the curtain to be
installed within 10 feet as stated in the respondent's ventilation plan. The facts show that a curtain was installed
within 10 feet of the working face (location "X" on exhibit
G-2), where the crosscut had been mined in the direction of
that face.
The parties agreed that any dispositive decision
based on these facts would be controlling in the remaining
dockets, and I a8sume that the violations in the remaining
dockets were issued after the inspectors found line curtains

583

installed at faces in the working places in excess of the
10 feet provided for the plan.
The parties are in agreement that prior to 1984, no citations were issued at the subject mines for violations similar
to the ones involved here; that is, for failure to maintain
line brattices to within 10 feet of an entry face, after a
crosscut was turned.
The requirements for installing section and face ventilation line brattice are found at page 10, paragraph 1, of the
respondent's ventilation plan (exhibit G-1). The pertinent
plan provision in question provides as follows:
"See page 11
for typical section and face ventilation systems for three,
four, five and six entry sections. Line brattice shall be
installed at a distance no greater than ten (10) feet from
the deepest point of penetration.n
The requirement for maintaining line brattice to within
10 feet of all faces was not included as part of the ventilation plan submitted by the respondent to MSHA for approval.
This provision was included in a June 7, 1984, letter from
MSHA's acting district manager at the time the plan was
approved, and it provides as follows:
"Line bratti~e shall
be maintained to within 10 feet of the area of deepest penetration of all faces in all working places inby the last open
crosscut at all times except while roof bolting as shown in
Sketches 11, 12 and 13."
During the course of the hearing, the respondent asserted
that MSHA's intent in requiring line brattice to within
10 feet of all faces, including idle faces, is based on MSHA's
belief that turning a crosscut from the line brattice side of
the entry is not a good mining practice because the line curtain can never be maintained to within 10 feet of the working
face of the crosscut while it is being mined during the
curtain-side turn.
Respondent also pointed out that its ventilation plans
do not require that brattices be maintained to within 10 feet
of all faces, and that this requirement has been imposed on
the respondent by means of the ventilation plan approval
letters containing the langt'J.age "all faces."
Respondent's counsel confirmed that the respondent is at
present regularly contesting all violations which are based
on MSHA's definition of a "face," and the application of the
10-foot line curtain requirements to that definition.
Counsel also confirmed that the respondent has met with MSHA

584

to discuss its enforcement position, but no resolution has
been reached short of issuing violations (Tr. 118).
MSHA's counsel stated that the "all faces" language has
been inserted by MSHA's district office consistently since
1972 (Tr. 170-173). Respondent's counsel stated that the
respondent has no choice in the matter when the plan is
approved with the "all faces" proviso in it (Tr. 174). However, he also indicated that while the respondent has not in
fact accepted this definition of a 11 face," it does not wish
to risk a mine closure for non-compliance. He also indicated
that the issue has never been raised until these cases were
litigated, and it is now contesting all cases in which this
issue is presented (Tr. 173-174).
Respondent's counsel took the position that there is no
intended distinction between the terms "face" and "working
face" and that they mean the same thing. He pointed out that
for approximately 13 years no one thought that there was· a
distinction in the terms or that the terms had different meanings, and that the distinctions have been made by MSHA when
it began issuing citations and orders at its mines. Counsel
stated that "MSHA is determined that we should not turn into
the curtain on making crosscuts, 11 and he insisted that continued compliance with the requirement that curtains be
located within 10 feet of all faces would result in unsafe
mining practices (Tr. 208-211).
MSHA's counsel conceded that while the point of deepest
penetration where the alleged violation took place was not a
working face because no coal extraction was taking place, the
other face where the curtain was installed was a working
face, and that both locations were working places because
they were inby the last open crosscut (Tr. 125-126). Counsel
also conceded that in the absence of the phrase "all faces,"
the failure by the respondent to maintain line brattice to
within 10 feet of a working face would constitute a violation
of section 75.302-l(a), and any inspector who found such a
condition would have to cite that specific standard as a violation rather than the plan.
MSHA's counsel confirmed that the "all faces" requirement was placed in the respondent's ventilation plan because
of the high liberation of methane. Counsel confirmed that
the respondent's mines operate under the most stringent ventilation plans, and that the respondent is the only mine operator with such a plan provision. He conceded that the plan
provision is there because MSHA put it there by the "cover
sheet" or approval letter accompanying the plan (Tr. 227-228).

585

MSHA's counsel asserted that the "all faces" requirements
of the plan in question would apply ·in these cases regardless
of the amount of penetration made at the No. 2 entry face identified as "Y". He pointed out that the facts before Judge
Broderick in the prior case indicated that there had been no
penetration at a similar "Y" location, and very little at a
similar "X" location, but that Judge Broderick nonetheless
ruled that both locations were faces which required brattice
curtains within 10 feet.
Counsel also pointed out that Judge
Broderick rejected any notion that the face which had not been
penetrated was simply a rib (Tr. 130). In support of his position in all of these cases, counsel relies on the dictionary
definition of the term "face" relied on by Judge Broderick
(Tr. 130-131). Counsel conceded that if the plan had used the
words "all working faces in all working places" instead of
"all faces in all working places," the violations would not
have issued in these cases {Tr. 128).
Respondent's counsel agreed that at the point in time
when the location "Y" was penetrated, it was in fact the face
of the No. 2 entry. However, aside from the fact that he~~
believed the cutting machine had simply "overcut" by 2 feet
and that the penetration was a "mistake," he took the position that once the machine turned away from that location and
starting driving and cutting the crosscut, location "Y" was
not a working face because it was not being mined and had not
been mined for at least several days before inspector
McCormick arrived on the scene.
In counsel's view, at the
time the in.3pector was there, location "Y" was simply a rib,
but that eventually the crosscut would have been turned to
the right off the entryi and the "rib" at location "Y" would
have been mined through at some future time (Tr. 206-208).
In the prior decision by Jud<.re·Broderick, he relied on
the definition of a "coal·faceu as found in A Dictionary of
Mining, Mineral and Related Terms, to support his conclusion
that the term is not limited to the time during which coal is
actually extracted, and that the term includes working faces
as well as faces from which coal has been or will be
extracted.
If one were to use the definition of the term
"faceu as found in the same dictionary, one could come to the
opposite conclusion. The term "face" is there defined in
part as follows:

* * * A point at which coal is being worked
away, in a breast or heading; also working
face.
* * * The exposed surf ace of coal or
other mineral deposit in the working place

586

where mining, winning, or getting is proceeding.
* * * The principal frontal surface presenting the greatest area such.as the face of
a pile of material, the point at which material is being mined. * * *
In the case of United States Steel Corporation v.
Secretary of Labor, 1 FMSHRC 1024, decided August 10, 1979 by
former Commission Judge Forrest E. Stewart, he vacated two
alleged violations of 30 C.F.R. § 75.316, which charged that
the operator had violated a provision of its ventilation plan
which required line brattice to be maintained to within
10 feet of the deepest penetration of all working faces.
In
that case, the evidence established that no coal was actually
being cut, mined or loaded when the inspector observed the
alleged violative conditions. Judge Stewart ruled that line
brattice was required to be maintained to within 10 feet of
the area of deepest penetration of all working faces only
when coal was actually being cut, mined or loaded.
Judge Stewart took note of the fact that mandatory standard section 75.302-l(a}, specifically requires line brattice
at the 10-foot distance only when coal is being cut, mined or
loaded. Since this provision clearly designated the working
face as that place at which brattice is to be maintained,
Judge Stewart ruled that the modifying phrase "from which
coal is being cut, mined or loaded" specified the time at
which brattice is to be maintained, and he concluded that all
working faces must be provided with line brattice meeting the
10-foot criteria during that time period.
Judge Stewart held that the language "all working faces"
as contained in the operator's ventilation plan clearly did
not mean that brattice be maintained at all times in all working faces. Although the ventilation plan was silent as to
the time when the 10-foot line brattice was required during
advance mining, he observed that this silence could not be
construed as adding additional requirements to those found in
section 75.302
(a).
He ruled that in order for the operator
to be penalized for failure to maintain 10-foot line brattice
at times other than those specified in the regulation, the
approved plan should clearly have stated the additional
requirements in such a way that clearly informed the operator
of its obligations.
Judge Stewart also observed that it was obvious that the
operator did not intend that brattice must be maintained
within 10 feet of the working face at all times when it submitted its plan to MSHA for approval. He also observed that

587

to construe the plan in a manner which would require 10-foot
line brattice at all times, even when coal was not being cut,
mined or loaded, would create a conflict with the roof-control
plan which contained a specific exemption.
He noted that the
inspector testified that there were times when the line brattice did not have to be maintained to within 10
et of the
face since the roof-control plan allowed the removal of line
brattice during roof bolting operations.
This provision was
included in the roof plan because the line brattice presented
a hazardous obstruction during bolting.
The inspector mentioned one occasion on which this obstruction resulted in the
severe injury to a miner's arm.
Findings and Conclusions
MSHA's position for insisting that line brattices be
installed within 10 feet of all faces is premised on the
theory that methane can accumulate at idle faces, as well as
working faces, and the fact that the respondent's mines have
a history of liberating high amounts of methane.
However,
MSHA presented no credible testimony or evidence to establish
that hazardous methane accumulations had occurred at the face
areas cited by the inspectors in these cases. As a matter of
fact, although MSHA introduced evidence of a number of prior
methane igntions at the respondent's mines, ventilation specialist Meadows did not know how many of these involved idle
face ignitions, nor could he supply the facts and circum--~
stances under which these purported ignitions occurred.
Mr. Meadows conceded that the law requires that all
faces in all working places be tested for methane, and that
if the tests were not made, a potentially hazardous condition
would be present (Tr. 246-247).
If a test were made and no
methane were detected, there would be no hazard.
Further, if
methane were detected within 5 to 15 minutes after a test
indicated none present, the respondent would have to be given
an opportunity to dispel the methane (Tr. 248).
Mr. Meadows
had no knowledge as to how many of the 15 methane ignitions
occurred at the longwall, and assuming they all occurred at
the longwall, he conceded that the fact that they occurred
would not be relevant to the facts presented in these cases
(Tr. 250).
Respondent's ventilation manager McNider testified that
the majority of methane ignitions which have occurred in the
respondent's mines have occurred at the working face where a
continuous miner was operating and scraping the mine bottom.
He pointed out that such ignitions would not occur at an idle
face unless some work was going on at that location, and

588

since no work is taking place at an idle face, an ignition is
not likely to take place there.
In his opinion, an "idle
face" is by definition one which has· been abandoned and no
work is taking place there (Tr. 225-227).
Mr. Meadows confirmed that the ventilation plan change
which occurred in 1972 was the result of litigation arising
from a methane ignition which occurred while a mining machine
was scraping bottom after a line curtain was taken down from
a working face which had been mined. The respondent was
charged with a violation of section 75.316, but the case was
dismissed after it was determined that coal was not being
mined at the face and that the line curtain was within 10 feet
of the face. Mr. Meadows confirmed that he testified in that
case and agreed that the violation could not be supported.
I believe it is reasonable to conclude that MSHA's "all
faces" requirement, which applies only to the respondent's
mines, and no other mine operators nationwide, was added· to
the plan to cover a situation where a potential methane accumulation is presented at an idle face which had been mined and
which no longer fits the definition of "working face" as
defined by MSHA's regulations.
If it is true that methane
accumulates at idle faces as well as working faces, MSHA's
adoption of this plan provision only for the respondent's
mines, and not for other mines, appears to be discriminatory.
While it is true that the respondent's mines have a history
of high methane liberation, I cannot conclude that in those
mines which liberate less methane, accumulations of methane
at idle or non-working faces do not present the same potential for methane ignitions. All mines liberate methane, and
it seems to me that if MSHA wishes to impose an "all faces 11
interpretation of the ventilation requirements of sections
75.316 and 75.302-l(a), it should do so through proper rule
making rather than imposing them on· a mine operator through
the ventilation plan review process, or by adding such a
requirement in a transmittal letter.
I also believe it is reasonable to conclude that MSHA is
not too enchanted with the mining methods utilized by the
respondent while driving and turning its crosscuts, and that
its insistence on maintaining line brattices to within 10-feet
of all faces in the working places is a subtle attempt to
force the respondent to change its mining methods.
During the
course of the hearing, MSHA's counsel denied that this was the
case, and he simply took the position that since the all-faces
requirement was a part of the respondent's approved plan, it
must be followed, and he implied that the respondent "was
stuck with the plan provision."

589

I take note of the fact that the 10 foot "all faces"
line brattice requirement contains an exception for roof bolting accomplished in accordance with plan sketches 11, 12, 13.
Although this exception may cure an otherwise contradictory
conflict with the "all faces" requirement, the same cannot be
said for other parts of the plan which I find to be in conflict with MSHA's asserted "all faces" requirements. These
plan provisions specifically use the term 11 working faces."
Since that term is specifically defined by regulation, requiring the respondent to maintain its brattice to within 10 feet
of "all faces," a term not defined by the regulation, creates
a confusing conflict in the application of the plan as a
whole.
The plan provision for installing section and face ventilation line brattice does not specifically state that a line
brattice must be within 10 feet of a face or working face,
and Mr. Meadows conceded that the plan itself "is not written
specifically in the King's English that way" (Tr. 163). When
asked for an explanation, Mr. Meadows cited paragraph 2 at
page 10, which states in pertinent part that "A minimum of
17,000 cubic of air shall reach the end of the line brattice
where coal is cut, mined or loaded," and that by definition
this means the working face (Tr. 164). He stated that the
sketches found on page 11 depict the line curtain installation
methods in all working places, and that the optional face ventilation system plan provisions found on page 12 depict "blowing curtains" requirements when roof and rib bolting and
servicing take place, and that the reference to a 10 feet maximum distance from a face as shown on sketch 11, page 13, is
from a face "no matter if you want to define it as a working
face or a fac~," (Tr. 165). He stated that the face curtain
requirements for use when bolting takes place depicts "10 feet
of a face, a face, if you want to call it a working face or a
face.
They're one and the same" (Tr. 165).
In further explanation of Mr. Meadows' testimony, MSHA's
counsel stated that "I think the witness would construe it to
mean at least to be consistent with his approach that what
they really meant to say "all faces in all working places,"
and the District Manager simply set that out clearly in the
approval" (Tr. 169).
It seems clear to me that in that portion of the ventilation plan dealing with the installation of blowing brattice
curtains while bolting or servicing the roof and rib, the use
of the term "face" is clearly intended to mean working face.
In fixing the maximum distances that a brattice curtain may

590

be installed, numbered paragraphs 2, 9, and 10 of the plan
specifically use the term working face, and paragraph 10
states that "the entire blowing curtain may be taken down
after the permanent exhaust line curtain has been extended to
within 10 feet of the working face." Under the circumstances,
I conclude that all "face" references in the plan provisions
for roof/rib bolting and servicing found at page 12, including
the sketches found at page 13, are intended to apply only to
the working faces.
The respondent's ventilation and methane and dust-control
plan contains several additional requirements for maintaining
proper air ventilation in the mines, and in each instance, the
plan refers to working faces. The plan requirements for dust
control at the respondent's longwall, page 18, paragraph F,
provides that a minimum of 18,000 C.F.M.'s of air shall reach
the working face where coal is being mined. The plan requirements for mine maps found at page 19 requires a mine map
reference notation for average height and air velocity, as
required, at each working face.
Page 4, paragraph 11, makes
reference to a November 21, 1980, approved section 10l(c) modification petition permitting the respondent to use belt air
entries for coursing intake air to active working faces.
Inspector McCormick defined a "working face" as "an area
from which coal is being extracted on the mining cycle." She
stated that there is no legal definition of the term "face,"
but she guessed that it would be "the area from which coal is
to be extracted or is being extracted." When asked whether a
"planned" cut would be considered a 11 face, 11 she answered in
the affirmative. When asked whether a line curtain would be
required within 10 feet of that 11 planned 11 cut, she replied
Rno." When asked to explain her answer, she replied "theoretically, this is a rib." She explained that the fact that a
"rib" had been penetrated, yet not !'squared off" would make
it "a face" (Tr. 102-103). She confirmed that her understanding of MSHA's position is that a "face" is any location where
an operator plans to extract coal (Tr. 104). If this is true,
':hen the inspector's belief that a planned cut does n0t require
line brattice to within 10 feet, and MSHA's position that it
does are at odds with each other and are contradictory.
Mr. Meadows believed that the terms "faces" and "working
faces" mean the same thing, and he believed that the requirement for maintaining line brattices to within 10 feet of the
face implies that they 'be so maintained to all faces, including idle faces.
In support of this conclusion, Mr. Meadows
relied on "the history and literature on the subject of mine
ventilation. 11 The only cited literature is a February 1969

591

Bureau of Mines Report of Investigations 7223 entitled Face
Ventilation in Underground Bituminous Coal Mines (exhibit
ALJ-1). Mr. Meadows pointed out that the term "working face"
is not used in this publication, and he indicated that once a
continuous miner penetrates and extracts coal from a seam, it
does so from a working face. Once the miner ceases operation,
the working face becomes simply a face, and he would refer to
both as a "face."
MSHA's reliance on the publication cited by Mr. Meadows
to support a conclusion that the phrase "all faces" includes
idle faces as well working faces as defined in its regulations is rejected.
I take note of the fact that the publication in question was published prior to the enactment of the
1969 Coal Act and the 1977 Mine Act. While it is true that
the article does not use the term "working face," it does
state that the basic objective of mine ventilation is to provide an adequate supply of uncontaminated air to the working
areas, and that the volume of methane released from an active
face varies throughout the bituminous coal fields and cannot
be predicted with certainty (pgs. 1, 15). Although the term
"active face" is not further explained, there is a strong
inference that when used in conjunction with "working areas,"
it means" active working faces.
The practice of supplementing ventilation plans by correspondence appears to be a routine matter between MSHA and
this respondent.
In a case recently decided by me involving
these same parties, Docket No. SE 85-48, the identical ventilation plan for the respondent's No. 4 Mine was in issue.
In
that case, in response to a July 14, 1984, approval letter
from MSHA's acting district manager, respondent's mine manager, Ken Price, wrote a letter to the district manager
requesting approval to "point feed" its underground air ventilation at necessary locations. That request was approved by
a letter from the district manager, and the approved methods
and procedures for "point feeding 11 were specifically incorporated as a supplement to the previously approved plan, and
were in fact subsequently incorported as part of the plan
itself when it was next reviewed. However, in the instant
proceedings, the requirement for maintaining line brattices
to within 10 feet of the area of deepest penetration of all
faces has never been speci~ically made a part of the respondent's plan. It has apparently been included in the district
manager 1 ·s approval letters as a 11 proviso" to the plan.
I
find this method of plan review and approval to be rather
strange, and it supports the respondent's contention that it
never intended the all faces interpretation or application as
imposed by MSHA.
It seems to me that had it intended to be

592

covered by the "all fees" provision, respondent would have
included it in the plan submitted to MSHA.
The respondent's contention that compliance with the
requirement that line brattice be maintained to within
10-f eet of all faces presents certain potential hazards is
supported by the record.
Inspector McCormick conceded that
requiring a brattice curtain to be installed within 10-feet
of the face which had been penetrated presented a possible
hazard in that a visibility probl~m would be created between
the shuttle cars and continuous miners, and they would have
to operate through the curtain (Tr. 123).
MSHA's ventilation specialist Meadows agreed that the
respondent would have difficulty maintaining line brattice to
within 10 feet of the cited face while cutting coal at the
working face where a brattice had been installed to within
10 feet (Tr. 154-155). Mr. Meadows also agreed that requiring the brattice within 10 feet of the cited face in question
would present a hazard in that visibility would be curtailed
and the air ventilation could possibly be short-circuited
(Tr. 184-185). Safety committeeman Dewberry stated that
because of the equipment operating in the crosscut area, it
would be impossible to maintain the brattice within 10 feet
of the cited face, and some of the curtain would have to be
taken down (Tr 195).
I conclude and find that on the facts of these cases,
requiring the respondent to adhere to the all faces requirement imposed on it by MSHA by means of ventilation plan
approval letters would result in exposing the miners to
hazards and accidents stemming from their inability to clearly
observe men and equipment moving behind the line curtains
located in places where MSHA insists they be placed in order
for the respondent to avoid citations. MSHA's witnesses agree
that the potential hazards are real, and I believe that the
recognition of these potential hazards and the safety concerns
expressed by the respondent override any subtle attempts by
MSHA to "nudge" the respondent· int~ changing its mining
methods.
If MSHA believes that the respondent's present mining methods are hazardous, it has an obligation to directly
address such situations rather than imposing unworkable plan
requirements which in the final analysis result in additional
potential hazards.
I further conclude and find that MSHA's application and
interpretation of the all faces requirement it imposed on the
respondent is inconsistent with the overall plan, as well as

593

mandatory standards 75.302 and 75.302-l(a). Although I realize that the respondent is not charged with a violation of
these standards, the regulatory intent for imposing these
requirements for the ventilation of working faces as encompassed in those standards as well as the overall plan, is to
insure a methane free working face atmosphere where active
mining is taking place with miners and equipment present.
Mandatory safety standard section 75.316 requires a mine
operator to adopt a suitable mine ventilation and methane and
dust-control plan for its mine.
Once approved by MSHA, that
plan becomes the applicable plan required to be followed until
such time as it is revised, revoked, or otherwise changed.
A
violation of the plan constitutes a violation of the requirements of section 75.316.
I conclude and find that at the time
the respondent submitted its plan to MSHA for approval it
never intended that line brattice be required to be maintained
within 10 feet of all faces.
I assume that in the absence of
this MSHA imposed requirement, the plan as submitted was·
suitable for the mines in question.
MSHA's attempt to impose further requirements for line
brattices at idle "faces" or "ribs" where coal is not being
mined or cut only at the respondent's mines would in my view
lead to conflicting and confusing applications of the respondent's overall plan, and it would impose additional requirements on the respondent which other mine operators are not
required to follow.
I recognize the fact that section 75.316,
provides flexibility in authorizing MSHA to require a ventilation system and methane and dust-control plan suitable to the
prevailing conditions in a mine on a case-by-case basis.
However r in these proceedings I am not convinced that MSHA has
established that the respondent failed to follow a plan suitable to the mine conditions in question.
Since the recor:cr-here establishes that requiring the· respondent to follow the
all faces requirement for maintaining brattice curtains would
result in additional hazards to miners, quite the contary is
true.
In my view, the resulting hazards render the plan
requirements unsuitable for the mines in question.
Since they
are, I find no basis for concluding that the respondent is
required to follow them, and I further conclude and find that
MSHA has failed to establish any violations of the cited plan
provision in question.
In view of the foregoing findings and conclusions, Order
Nos. 2482922, 2481092, 2482911, and 2346556 ARE VACATED, and
MSHA's civil penalty proposals in connection with these
orders ARE DISMISSED.
The contestant's contest in Docket No.
SE 85-36-R (Order No. 248922) IS GRANTED.

594

Fact of Violation
Docket No. SE 85-124, Citation No. 2347351
In this case, the respondent is charged with the failure
to maintain a continuous-mining machine in a permissible condition. The inspector found an opening in excess of
.004 inches in the lid of the control box, and the machine
was being used to cut and load coal from the faces.
The parties stipulated and agreed that the citation as
issued accurately describes and evaluates the permissiblity
violation of 30 C.F.R. § 75.503. The inspector who issued
the citation was not available for testimony and the petitioner's counsel stated that he was out of state of other
MSHA business.
Respondent does not dispute the fact that the conditons
described on the face of the citation constitute a violation
of section 75.503. Respondent presented no testimony or evidence with respect to this citation, and its counsel did not
dispute the inspector's "S&S" finding.
Counsel stated that
he was only disputing the amount of the proposed civil penalty assessment proposed by MSHA ($850). The parties
requested that I assess an appropriate civil penalty on the
basis of the citation, the pleadings filed by the parties,
and the statutory criteria found in section llO(i) of the
case (Tr. 8) •
The burden of proof in a civil penalty case with respect
to the fact of violation and the proposed civil penalty
assessment lies with the petitioner. In this case, the
respondent has conceded that a violation occurred and that it
was significant and substantial. Accordingly, the citation
IS AFFIRMED.
The proposed civil penalty in this case was "specially
assessed" pursuant to MSHA's civil penalty criteria and procedures found in Part 100, Title 30, Code of Federal Regulations. However, it is clear that I am not bound by these
assessment regulations and have jurisdiction to assess a
civil penalty for the violation de ~·
With respect to the six statutory criteria found in section llO(i) of the Act, the parties have stipulated to the
following:

595

1. The respondent is a medium sized mine
operator and the imposition of a civil penalty
will not af feet the respondent '.s ability to
continue in business.
2.
faith.

The violation was abated in good

3. The respondent's history of prior
violations is average.

I take note of the fact that abatement in this case was
achieved within an hour and 10 minutes of the issuance of the
violation.
I also note that the inspector found that the
violation was the result of moderate negligence on the part
of the respondent, and that the likelihood of the occurrence
of the event against which the standard is directed was "reasonably likely" and that two persons were exposed to a hazard.
In this case, the inspector found an opening between the
cover plate and control box of the continuous-mining machine
in excess of .004 of an inch. The machine was being operated
at the face cutting and loading coal. Testimony in connection with the other violations issued at this mine in this
case reflects that the mine liberally releases methane and
that methane ignitions have occurred in the mine. Under the
circumstances, I conclude that the violation presented a possible ignition hazard and was serious.
With regard to the respondent's history of prior violations, although the parties stipulated that the respondent
has an "average" history of prior violations, I have no idea
what this means. MSHA has filed no information concerning
the respondent's history of prior violations, and I have no
basis for determining whether an increase or decrease in the
initial assessment is warranted.
Civil Penalty Assessment
In view of the foregoing findings and conclusions, and
taking into account the requirements of section llO(i) of the
Act, I cannot conclude that MSHA's initial assessment of $850
for the violation in question is unreasonable. Accordingly,
IT IS AFFIRMED.
ORDER
The respondent IS ORDERED to pay a civil penalty in the
amount of $850 for section 104(a) "S&S" Citation No. 2347351,

596

April 13, 1985, 30 C.F.R. § 75.503. Payment is to be made to
MSHA within thirty (30) days of the date of this order, and
upon receipt of payment, the case is dismissed.

h.cti~
Administrative Law Judge

Distribution:
Robert Stanley Morrow, Esq., Jim Walter Resources, Inc., P.O.
Box C-79, Birmingham, AL 35283 (Certified Mail)
Harold D. Rice, Esq., Jim Walter Resources, Inc., P.O.
Box C-79, Birmingham, AL 35283 (Certified Mail)
George D. Palmer, Esq., Office of the Solicitor, U.S.
Department of Labor, 2 015 Second Avenue North, Suite 2 01.,
Birmingham, AL 35203 (Certified Mail)
H. Gerald Reynolds, Esq., Jim Walter Corporation, P.O.

Box 22601, Tampa, FL 33622 (Certified Mail)

/fb

597

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

(703)

756-6210

April 9, 1986

ANN RILEY OWENS,
Complainant
v.

.:

MONTEREY COAL COMPANY,
Respondent

..
.

DISCRIMINATION PROCEEDING
Docket No. LAKE 86-33-D
VINC CD 85-21
Monterey No • 2 Mine

ORDER
Respondent, Monterey Coal Company (Monterey), moves for
dismissal or summary decision on the ground the captioned
discrimination complaint fails to state a claim for which
relief may be granted and therefore the Commission lacks
jurisdiction over the subject matter.
Complainant, a woman miner, appears pro se. She has
filed a 32 page verified, handwritten opposition. The matter
is set for an evidentiary hearing in St. Louis, Missouri on
April 22, 1986.
Monterey's motion is bottomed on the proposition that
complainant's admitted on-the-job foot injuries were
self-inflicted, not work related, and therefore the claim
that· such injuries created an underground safety hazard, even
if true, was not a protected safety related activity. At
this stage of the proceedings, I am not called upon to
determine the validity of Monterey's hypothesis. Complainant
maintains her injuries were work-related -- the result of her
good faith attempt to comply with Monterey's metatarsal
protective shoe policy~ There is therefore a disputed issue
of material fact.
It is well settled that on a motion to dismiss or for
summary judgment all facts well pleaded must be accepted
unless it is shown there is no dispute as to the material
facts and that movant is entitled to judgment as a matter of
law. Commission Rule 64; FRCP 12Cb)(6), 56. Since both
parties rely on matters outside the pleadings, Monterey's
motion has been treated as one for summary decision. Carter
v. Stanton, 405 U.S. 669 (1972). Verified pleadings, of

598

course, qualify as affidavits if, as is true of Ms. Owens
opposition, they are based on the pleader's first-hand
knowledge. Forts v. Malcolm, 426 F. Supp. 464, 466 (S.D.N.Y.
1977).
Except in the clearest of cases, the Commission does not
look favorably on motions for summary decision as they tend
to deprive litigants of their day in court. Missouri Gravel
company, 3 FMSHRC 2470 (1981). This is especially true in
pro se cases where the trial judge has a duty to satisfy
himself all the relevant facts have been developed. Burns v.
Asarco, 5 FMSHRC 1497, 1498 n.2 (1982).
The applicable standard for review of a motion for
summary decision is the same as that applicable to a motion
for summary judgment under Rule 56. This is that:
"A summary judgment is authorized only if 'there is no
genuine issue as to any material fact and • • • the
moving party is entitled to judgment as a matter of
law.' The function of the court on a summary judgment
motion 'is limited to ascertaining whether any factual
issue pertinent to the controversy exists; it does not
extend to resolution of any such issue.' Once it is
determined that material facts are in dispute 'summary
judgment may not be. granted,' and in 'making this
determination doubts • • • are to be resolved against
the granting of summary judgment.' To warrant summary
judgment the record 'should show the right of the movant
to a judgment with such clarity as to leave no room for
controversy, and • • • should show affirmatively that
the [adverse party] would not be entitled to [prevail]
under any discernible circumstances • • • Summary
·judgment is an extreme remedy, and under the rule,
should be awarded only when the truth is quite clear."
Weiss v. Kay Jewelry Stores, Inc., 470 F. 2d 1259,
1261-62 CD.C. Cir. 1972).
A summary decision is particularly inappropriate in
discrimination cases where "the inferences the parties seek
to have drawn deal with questions of motive, intent and
subjective feelings and reactions." Empire Electronics Co.
v. United States, 311 F. 2d 175, 180 C2d Cir. 1962).
Finally,
"The burden on a party moving for summary judgment is
affirmative:
'The party seeking summary judgment has
the burden of showing there is no genuine issue of
material fact, even on issues where the other party
would have the burden of proof at trial, and even if the

599

opponent presents no conflicting evidentiary matter.'
(Citations omitted). That is, the moving party must
present affirmative evidence of facts that, if true,
would compel a judgment for that party • • • •
In assessing whether a party moving for summary judgment
has met his or her burden, a court must view all
inferences to be drawn from underlying facts in the
light most favorable to the party opposing the motion.
(Citations omitted). McKinney v. Dole, 765 F. 2d 1129,
1134-1135 (D.C. Cir. 1985).
Under the Mine Act, unlawful reprisal occurs when (1) a
miner participates in a statutorily protected activity, (2)
an adverse employment action is taken against him or her, and
(3) a causal connection existed between the two. Here
complainant's verified opposition shows she participated in
numerous acts of claimed protected activity, including the
fact that on July 18, 1985 she reported, that due to the
disabilities suffered to her feet while working in the No. 2
Mine during the period July 15 to 18, she had become a hazard
to her own safety and to that of her co-workers. With
respect to the second element, Ms. Owens pleadings and
opposition set forth numerous adverse actions such as Cl)
Monterey's continuing refusal to classify her injuries as
work-related, (2) its refusal to reimburse complainant for
the legal expense she incurred in prosecuting her own
workmen's compensation claim, and (3) regular and continuing
acts of claimed job discrimination, vilification,
retaliation, and harrassment due to an anti-women miner and
safety animus.
Third, it seems clear that if complainant's injuries
were; in fact, work related as well as the proximate cause
and justification for her refusal to work from July 18 to 29,
1986 she has stated a claim for which relief, including
injunctive relief, may be granted under the Mine Act if any
of the many adverse actions alleged were motivated in any
part by her safety complaints and activities. See, Secretary
on behalf of Dunmire and Estle v. Northern Coal Co., 4 FMSHRC
126, 142 (1982); Rosalie Edwards v. Aaron Mining Co., 5
FMSHRC 2035 {1983); Pratt v. River Hurricane Coal Company,
Inc., 5 FMSHRC 1529 (1983) •

•

It is axiomatic that on a motion for summary decision,
the trial judge cannot try issues of fact but only determine
whether there are issues of fact to be tried.
Once this is
determined in the affirmative the motion must be rejected.
This is true whether or not the case will ultimately be tried
to a judge or a jury.

600

The Mine Act and its legislative history show 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 in enforcement of the Act.
To further the
congressional aim of making the Nation's coal mines safe
places to work, the concept of protected activity must be so
construed as to assure that miners will not be inhibited in
any way from exercising the rights afforded them by law.
Donovan v. Stafford Const. Co., 732 F. 2d 954, 960, 961 (D.C.
Cir. 1984)
Based on an exhaustive review of the record, I conclude
the many issues of material fact and credibility presented
make the granting of Monterey's motion improper, improvident
and an abuse of discretion.
Accordingly, it is ORDERED t
and hereby is, DENIED.

Monterey's motion be,

Distribution:
Thomas C. Means, Esq., Crowell & Moring, 1100 Connecticut
Avenue, N.W., Washington, DC 20036 (Certified Mail}
Ms. Ann Riley Owens, 910 Morrison, St. Louis, MO 63104
CCertif ied Mail)
dcp

601

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

April 9, 1986

SECRETARY OF LABOR,
MINE SAFETY AND HEAL~H
ADMINISTRATION (MSHA),
ON BEHALF OF
LARRY COLLINS,
Complainant

DISCRIMINATION PROCEEDING
Docket No. VA 85-5-D
MSHA Case No. NORT CD 84-7
Mine No. 1

v.
RAVEN RED ASH COAL
COR1?0RATION I
Respondent
ORDER OF DISMISSAL
Before:

Judge Koutras

This proceeding concerns a temporary reinstatement application filed by MSHA on December 26, 1984, on behalf of the
complainant Larry Collins. The case was originally docketed as
VA 85-5-D, and Chief Judge Merlin issued an Order on December 26,
1984, requiring the temporary reinstatement of Mr. Collins
pending a hearing on the merits of his complaint. No further
action.was taken on the reinstatement, and MSHA never requested
enforcement of Judge Merlin's order. Subsequently, on
August 23, 1985, MSHA filed its discrimination complaint on
behalf of Mr. Collins, as well as another miner, Earl Kennedy,
and the cases were assigned Docket No. VA 85-32-D.
On April 7, 1986, I issued my dispositive decision in
Docket No. VA 85-32-D. Under the circumstances, the temporary
reinstatement petition filed on behalf of Mr. Collins is moot,
and this matter should be dismissed. Accordingly, the case
docketed as VA 85-5-D is dismissed.

4fi~L~/:~
X'dmi~~s{~ative
Law Judge

602

Distribution:
Sheila K. Cronan, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 1237A, Arlington, VA
22203 (Certified Mail)
Daniel R. Bieger, Esq., Copeland, Molinary & Bieger, P.O.
Box 1296, Abingdon, VA 24210 (Certified Mail)

/fb

603

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE AOO
DENVER. COLORADO

80204

Apr i l

l Q
1

EMERY MINING CORPORATION,
Contestant

19 8 6

CONTEST PROCEEDING

.

v.

.

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

Docket No. WEST 86-56-R
Citation No. 2833830; 12/20/85
Cottonwood Mine

DECISION
Appearances:

Timothy M. Biddle, Esq. and Peter K. Levine, Esq.,
Crowell & Moring, Washington, D.C.,
for the Contestant;
James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for the Respondent.

Before:

Judge Morris

This is a contest proceeding initiated by contestant
against the Secretary of Labor in accordance with the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
(the Act) .
A hearing on this case and related cases commenced on
March 5, 1986 in Salt Lake City, Utah.
At the hearing contestant renewed its motion to withdraw
its Notice of Contest. No person objected to the motion.
Pursuant to Commission Rule 11, 29 C.F.R. § 2700.11,
contestant's motion is granted and the case is dismissed.

Law Judge
Distribution:
Timothy M. Biddle, Esq., and Peter K. Levine, Esq., Crowell &
Moring, 1100 Connecticut Avenue, N.W., Washington, D.C. 20036
(Certified Mail)
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
Colorado 80294
(Certified Mail)
/ot
604

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

April 10, 1986
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
JOHN G. KLINE,
Complainant

Docket No. WEVA 85-226-D
MORG CD 85-7
Loveridge No. 22 Mine

v.
CONSOLIDATION COAL COMPANY,
Respondent
ORDER OF DISMISSAL
DECISION APPROVING SETTLEMENT
Before:

Judge Maurer

The Secretary has filed a motion explaining that pursuant
to agreement between the parties, the complainant now has received or will receive all the relief sought in this case.
The Secretary further has moved for approval of a civil
penalty in the amount of $200 for the violation of section
105(c} of the Act.
The Secretary further has discussed the
proposed settlement in light of the six statutory criteria
set forth in section 110 of the Act.
Based upon my review of
the Secretary's motion I am satisfied that the proposed
settlement is consistent with the purposes and spirit of the
statute.
In light of the foregoing the proposed settlement is
APPROVED and the operator is ORDERED TO PAY $200 within 30
days from the date of this decision. Further, the Secretary's
motion to withdraw the complaint of discrimination is GRANTED
and this matter is hereby DISMISSED.

ative Law Judge
Distribution:
Covette Rooney, Esq., Office of the Solicitor, u. s. Department
of Labor, 3535 Market St., Philadelphia, PA 19104 (Certified
Mail)
Robert M. Vukas, Esq., Consolidation Coal Co., 1800 Washington
Rd., Pittsburgh, PA 15241 (Certified Mail)

yh

605

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE tAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

April 17, 1986
THE YOUGHIOGHENY AND OHIO
CONTEST PROCEEDINGS
COAL COMPANY,
Contestant
Docket No. LAKE 85-74-R
:
Order No. 2330533: 4/9/85
v.

.

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

...

.
..

Docket No. LAKE 85-75-R
Order No. 2330535; 4/9/85
Nelms No. 2 Mine

DECISION
Appearances:

Robert Kota, Esq., Youghiogheny and Ohio Coal
Company, St. Clairsville, Ohio, for Contestant;
Patrict M. Zohn, Esq., Office of the Solicitor,
U.S. Department of Labor, Cleveland, Ohio, for
Respondent.

Before:

Judge Melick

These consolidated proceedings are before me upon the
Notices of Contest filed by Youghiogheny and Ohio Coal
Company CY&O) under section lOSCd) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801 et~, the "Act,"
to challenge the issuance by the Secretary of Labor of two
withdrawal orders (Nos. 2330533 and 2330535) under the provisions of section 104(d)(2) of the Act.~/

!7 Section 104Cd){2) provides as follows:

"If a withdrawal order with respect to any area in a
coal or other mine has been issued pursuant to paragraph Cl),
a withdrawal order shall promptly be issued by an authorized
representative of the Secretary who finds upon any subsequent
inspection the existence in such mine of violations similar
to those that resulted in the issuance of the withdrawal order
under paragraph Cl) until such time as an inspection of such
mine discloses no similar violations. Following an inspection of such mine which discloses no similar violations, the
provisions of paragrpah Cl> shall again be applicable to that
mine."
Section 104(d)(l) provides as follows:
"If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there
has been a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions
created by such violation do not cause imminent danger, such
violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of such
operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation
given to the operator under this Act."
606

Hearings were held concerning the merits of these orders
on September 25, 1985, but a final decision was deferred
pending decisions by other judges concerning the validity of
the underlying section 104Cd)(l) citation and order that were
conditions precedent to the validity of the orders at bar. A
determination upholding the violations cited in the instant
orders and a finding that the violations were caused by the
"unwarrantable failure" of the mine operator were previously
made by decision of the undersigned dated October 29, 1985
(Secretary v. Youghiogheny and Ohio Coal Company, Docket No.
LAKE 85-90, Appendix A).
The underlying citation (No. 2331148) and order (No.
2328954) were subsequently upheld respectively by decisions
of Commission Judges in Youghiogheny and Ohio Coal Company v.
Secretary of Labor, Docket No. LAKE 85-76-R (March 7, 1986,
Judge Maurer), and Secretary of Labor v. Youghiogheny and
Ohio Coal Company, Docket No. LAKE 85-63 (February 4, 1986,
Judge Broderick). Accordingly the section 104(d}(2) orders
at bar (Orders Nos. 2330533 and 2330535) are affirmed and the
contests of those orders are dismissed.

Distribution:
Robert c. Kata, Esq., Y&O Coal Comp
Clairsville, OH 43950 (Certified Ma·

, P.O. Box 1000, St.
)

Patrick M. Zohn, Esq., Office of the Solicitor, U.S. Department of Labor, 881 Federal Office Building, 1240 East Ninth
Street, Cleveland, OH 44199 (Certified Mail)
rbg

607

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

DEC J 9 1985

APPENDIX A

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

.
.
.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 85-90
A.C. No. 33-00968-03605
Nelms No. 2 Mine

YOUGHIOGHENY & OHIO COAL CO., :

Respondent
DECISION
Before:

Judge Melick

This case is before me on remand by the Commission on
December 12, 1985, to "enter the necessary findings as to
each of the six statutory penalty criteria supporting" the
$750 penalty assessment for the violation of the regulatory
standard at 30 C.F.R. § 75.305.1
The violation as charged in Order No. 2330535 reads as
follows:
The absence of dates, times and initials indicates that the weekly examinations of the left
and right return air courses were not being conducted. There was [sic] no entries made in the
approved book on the surf ace that the return air
courses had ever been examined on a weekly basis.
Youghiogheny & Ohio Coal Company (Y&O) does not dispute
that the cited standard requires weekly examinations to be
performed in the left and right return air courses as alleged
and that the person making such examinations is required to
place his initials and the date and time at the place

!The penalty criteria.are as follows:
"The operator's history of previous violations, the
appropriateness of such penalty to the size of business of
the operator charged, whether the operator was negligent, the
effect on the operator's ability to continue in business, the
gravity of the violation, ·and the demonstrated good faith of
the person charged in attempting to achieve rapid compliance
after notification bf a violation." 30 u.s.c. § 820Ci).

608

examined. Y&O maintains that except for the period between
March 13, 1985 and April 9, 1985, proper examinations had
been made. It is not disputed however that during an underground inspection of the Nelms No. 2 Mine conducted by MSHA
Inspector James Jeffers on April 9, 1985, neither Jeffers nor
Y&O safety Director Don Statler were able to locate any
dates, times or initials of mine examiners or any other
evidence that any part of the 1,300 feet of the right and
left air courses had ever been examined in accordance with
the cited standara.2
Jeffers and Statler returned to the surf ace and
examined the books in which the examinations of the cited air
courses were required to be recorded. Assistant Mine Safety
Director Robert Oszust joined in the examination. At that
time neither Don Statler nor Robert Oszust was able to show
Jeffers any evidence of entries corresponding to inspections
of the cited air courses. Indeed Y&O continued to admit as
recently as when it filed its Answer in these proceedings on
September 12, 1985, that the examinations had not been
recorded. At the hearings in this case however, only 13 days
later, Statler testified that entries in the record book did
exist and that they corresponded to examinations of the air
courses on February 6, 1985, February 16, 1985, February 21,
1985, February 27, 1985, March 6, 1985 and March 13, 1985.
The entries are not however so unambiguous as to permit
the unquestioned acceptance of this testimony. Moreover the
one person who could have clarified this matter and answered
the more important question of whether the air courses were
actually inspected was not called as a witness by the mine
operator and his absence was not explained. This person was
Bill Dennis, the fire boss who it is now purported conducted
the first five of the examinations. Under the circumstances
Statler's testimony in this regard is without a credible
foundation.
Within this framework I conclude that, with one exception, the required weekly examinations of the air courses had
not been made from February 6, 1985-to April 9, 1985. The
one exception is based upon Statler's testimony that he saw
substitute Fire Boss Roy Kohler perform an examination of the
air courses on March 13, 1985. Statler also admits however
that he does not know whether any weekly examinations were
performed between March 13 and April 9, 1985, and concedes
that there were no entries in the record book corresponding
to any examination between those dates.
2statler testified that he found one notation pad on the outby
side of the A Entry return regulator but there is no indication that there were any entries on that pad.

609

According to the undisputed testimony of Inspector
Jeffers, the failure to conduct weekly examinations could
lead to the accumulation of float coal dust in the cited air
courses. Indeed it is undisputed that float coal dust was in
fact present throughout at least 500 to 600 feet of the right
return air course at the time of this inspection and was
admittedly an unsafe condition and a violation of the
standard at 30 C.F.R. § 75.400.
According to Jeffers areas of the mine containing
ignition sources such as electrical equipment including
ventilation fans, a battery charger and a rock dusting
machine, were vented directly into the air courses. He
opined that the accumulations of float coal dust in the air
courses could propagate fire or explosions from those areas
exposing the seven miners working inby to serious injuries.
Jeffers also observed that there had been a prior ignition at
this mine of hydrogen gas from one of the battery chargers.
Statler testified that he was not aware of such ignition
sources but did not contravene Jeffer's testimony in this
regard. Under the circumstances I find that the violation
herein was quite serious. The hazard was particularly
aggravated by the lengthy period during which the examinations had not been performed. Indeed each failure to conduct
a weekly examination at each required location could have
properly been charged as a separate violation subject to a
separate civil penalty.
The violation was also the result of operator negligence. The fact that proper examinations were not being
perf orrned should have been obvious from the absence of
required notations in the air courses. In addition the
existence of admittedly violative amounts of float coal dust
over 500 to 600 feet of the right return air course in an
area frequented by supervisory personnel should have led to
the discovery of this violation. Indeed Safety Director
Statler conceded that a section foreman should have discovered the float coal dust in the air course and was
"surprised" that it had not been found.
In addition since both the Mine Safety Director and his
assistant were apparently unable to determine (until the
Safety Director testified at hearing) from the ambiguous
entries in the record book that proper examinations of the
air courses were being made it is apparent that at the very
least the entries were not adequate to clearly show to management that the examinations were in fact being made. For this
additional reason the mine operator should have been alerted
to the problem and seen to it that the examinations were
being made and were clearly recorded as having been made.
The admitted absence of any entries in the record book for
the period subsequent to March 13, 1985, should also have

610

been known to management in light of the requirement for
supervisors to countersign those entries.
In assessing the penalty in the decision below I also
considered the undisputed evidence concerning the remaining 4
criteria. It was stipulated that the mine operator was of
"moderate" size and that the proposed penalties would have no
affect on its ability to continue in business (Tr. 5). The
undisputed history report of violations CEx. G-11) shows that
overall the operator had a record preceding the date of the
order at bar of 3,592 paid violations including 12 paid violations of the regulatory standard at issue. For the 2 years
preceding the order at bar there were 515 paid violations
including 4 paid violations of the standard at issue. This
is not a good record.
I also gave credit in assessing a $750 penalty for the
operators demonstrated good faith in attempting to achieve
rapid compliance after notification of the violation. The
order in this case indicates on its face that both the left
and right return air courses were subsequent! ·. examined by a
representative of the mine operator and the r sults were
recorded in the approved book.

Distribution:
Patrick M. Zohn, Esq., Office of the Solicitor, U.S. Department of Labor, 881 Federal Office Building, 1240 East Ninth
Street, Cleveland, OH 44199 (Certified Mail}
Robert C. Kota, Esq., The Youghiogheny & Ohio Coal Company,
P.O. Box 1000, St. Clairsville, OH 43950 (Certified Mail)
rbg

611

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE. SUITE 400
oENYER,COLORADO

so204

April 21, 1986

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 85-169
A.C. No. 42-00079-03525

v.

Emery Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Hal Pos, Esq., Parsons, Behle & Latimer, Salt Lake
City, Utah,
for Respondent.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, charges respondent with violating a safety
regulation promulgated under the Federal Mine Safety and Health
Actf 30 U.S.C. § 801 et
., (the Act).
After notice to the parties a hearing on the merits took
place in Salt Lake City, Utah on February 13, 1986.
The parties waived their right to file post-trial briefs
and, in lieu thereof, orally argued their cases.
Issue
The issue is whether there was an unwarrantable failure on
the part of the operator to comply with a ventilation regulation.
Citation
Citation 2503093 charges respondent with violating 30 C.F.R.
The cited regulation provides as follows:

§ 75.316.

STATUTORY PROVISIONS
A ventilation system and methane and dust control plan
and revisions thereof suitable to the conditions and the

612

mining system of the coal mine and approved by the Secretary shall be adopted by the operator and set out in
printed form on or before June 28, 1970. The plan shall
show the type and location of mechanical ventilation
equipment installed and operated in the mine, such additional or improved equipment as the Secretary may require, the quantity and velocity of air reaching each
working face, and such other information as the Secretary
may require. Such plan shall be reviewed by the operator
and the Secretary at least every 6 months.
Stipulation
At the commencement of the hearing the parties stipulated as
follows: the air velocity at the working face was not maintained
at the required 6000 cubic feet per minute (CFM). Respondent
thereby violated its ventilation plan and the regulation.
In
addition, there had been no intervening clean inspection between
a prior (d)(l) citation issued February 26, 1985 and the (d)(l)
citation in the instant case. Finally, the parties agreed that
the proposed penalty of $255 is appropriate if the violation was
due to the unwarrantable failure of the operator to comply; if
not, then the penalty should be for a lesser amount (Tr. 5-7).
Summary of the Case
The Secretary's Evidence
Robert Lee Heggins, an MSHA inspector experienced in mining,
inspected respondent on May 13, 1985 <Tr. 8-11). On this
occasion he was accompanied by Steve Behling, the company's
safety director (Tr. 11). When the men walked into the No. 5
entry of 2 West Main the inspector observed that the curtain was
partly blown in at crosscut 29 (Tr. 12, 13). As they proceeded
further the inspector also saw that the mine curtain was sagging
at several locations (Tr. 11, 13). Continuing on, the inspector
noticed that a trailing cable had pulled the curtain against the
rib causing a restriction of the air flow to the working face
(Tr. 15).
When he approached the face the inspector saw dust in the
air as the shuttle car in crosscut 30 was being loaded.
In his
position he did not feel the free flow of air that one would
normally expect (Tr. 16). The absence of the air flow and the
condition of the curtain convinced the inspector that there was a
failure of the air flow at the face (Tr. 16).
After he observed the coal being loaded into the shuttle car
the inspector attempted to take an anometer reading: the device
would not turn. He also tested with smoke but it went up against
the roof and did not move. He also tested at the line curtain
and found .3990 CFM; it should have been 6000 CFM (Tr. 17).

613

In the inspector's opinion the placement of the curtain at
crosscut 29 was abnormal, improper and significant because it
disrupted the normal flow of air (Tr. 12, 13).
Further, the
curtain was sagging from the roof.
This caused the air to leak.
The curtain shouldn't have been hung in this fashion (Tr. 13, 14,
18). The third problem contributing to the air flow restriction
was caused by the trailing cab
as the equipment made a sharp
right turn into the working face (Tr. 32).
It would be natural
to expect a trailing cable to contact a brandish curtain in these
circumstances.
In the inspector's view the cable had been
pulling against the curtain since this shift began, for about an
hour to an hour and a half (Tr. 33, 34).
The inspector watched the shuttle car being loaded for two
to three minutes before issuing his order.
In this period
neither foreman Petty nor anyone
se attempted to reestablish
ventilation (Tr. 24).
Supervisor Petty, who was in the middle of
the dust, should have sensed a lack of air sweeping over his body.
He should have realized there was a failure of the ventilation
(Tr. 23).
The violative conditions were abated by straightening the
curtain at crosscut 29; by fixing the sagging curtain in the
entry and by placing an object to keep the curtain from
contacting the rib (Tr. 33-35).
Consolidation Coal's Evidence
Horace Petty (section foreman), David Day (miner operator),
Richard Childs (continuous miner -Operator) and Steve Behling
(safety supervisor) testified for respondent.
The section foreman, Horace Petty, indicated that at crosscut 29 they had spadded the curtain to the floor two or three
feet toward the direction of entry 6 (Joint Exhibit No. 1 illustrates the placement of the curtain). This placement was to
prevent any shuttle cars from snagging it as they turned the
corner.
Placement of the curtain in this fashion had never
caused a ventilation problem. The fire boss had a reading of
17,000 CFM before the shift started mining that morning (Tr. 38,
39, 46, 47).
If there had been any gaps in the curtain Petty would have
noticed them.
The top is not perfectly level and there may have
been an inch or two spacing at the top.
Such openings do not
cause much loss of air (Tr. 51, 52, 64).
The curtain had not been pushed against the rib when Petty
went up the entry that morning at about 7:20. The curtain was
spadded to the top, as well as the floor, along all entry No. 5
(Tr. 39).
He went up the entry an additional three or four times
before the violation occurred.

614

At about 10:00 or 10:30 a.m. Petty walked to the working
face from behind the line curtain. He frequently took this
approach. As he proceeded toward the face he found the curtain
had pulled loose from the spads; it was against the rib. There
wasn't much ventilation coming through and Petty knew he had a
problem. He immediately came through the curtain. The miners
were loading the shuttle car and Petty signaled them to stop (Tr.
41, 42, 80). Since the shuttle car was loaded he directed them
to back it away from the face.
It took the operator about ten
seconds to stop (Tr. 41, 42). As the miner was backed out MSHA
inspector Heggins stopped them (Tr. 42). About 10 to 15 seconds
had elapsed (Tr. 43). Petty had stopped the mining operation
before he knew the MSHA inspector was present (Tr. 63).
In order to reestablish ventilation after the miner was shut
down, the employees pulled the curtain out and spadded it back to
the floor (Tr. 52, 53). They started from the face and walked
the whole curtain line, tightening all gaps, checking all spads
and cracks (Tr. 55). After the gaps were fixed, after the
restriction was removed at the corner and after the curtain was
moved at crosscut 29 there was sufficient ventilation (Tr. 57).
According to witness Petty the curtain, as it hung from the
ceiling, was properly installed in the first place. They retightened it after the citation was issued in order to get the
maximum amount of air to the face (Tr. 58).
In Petty 1 s opinion, changing the position of the brandish
curtain at crosscut 29 did not contribute to an increase in the
air flow (Tr. 61).
Closing the gaps along the curtain from the working face to
crosscut 29 contributed an additional two or three thousand cubic
feet of air flow (Tr. 61). The trailing cable pinching the
curtain was the main problem. Petty had stopped to take care of
it (Tr. 62). This particular condition was abated by moving the
curtain back from the rib and spadding it to the floor (Tr. 62).
David Day, a miner operator, described his activities on
this day as well as the inspections made by the section foreman
(Tr. 65-67).
Shortly prior to the inspection the water line had to be
repaired. After the line was repaired it took about 15 or 20
seconds to finish loading the car (Tr. 68, 70). As they finished
loading Petty came through the curtain and signaled them with his
light to stop mining. They stopped and backed the shuttle car
away from the continuous miner. As they were backing up Behling
and inspector Heggins told them to stop (Tr. 68, 71). In Day's
opinion, before the water line was fixed, the three-inch trailing

615

cable had not been pressing against the rib. He believed that
after the line was fixed and as he started around the corner the
cable snapped tight and pulled out the bottom of the curtain (Tr.
69). At the time the citation was issued the miner was 50 to 60
feet into crosscut 30 from entry 5 (Tr. 76-79).
This portion of the mine is a very dry and dusty section.
The ventilation seemed okay (Tr. 71, 76). There was no gas at
this face CTr. 78). Day estimates 50 to 70 trips were made that
day by the shuttle car (Tr. 74).
At the time of the incident witness Richard Childs had been
absent from 2 Main West for approximately 30 minutes. Upon returning he found the water line had been repaired and the shuttle
car was 1/2 to 3/4 full.
He then replaced Day as the operator
and moved the miner back into the face and started cutting. They
had already mined about 60 feet into crosscut 30. Childs completed filling the car in 20 to 30 seconds (Tr. 84-87, 94).
Day motioned to Childs that the car was filled. Childs then
saw Horace Petty shaking his light directing them to stop
mining. He then started to back away from the face. At that
point the MSHA inspector appeared and directed him to shut down
the miner, which he did. There was no dust because the miner
hadn't been operating (Tr. 87-89, 93). Childs did not notice the
lack of air flow across his body nor did he notice any air
problem (Tr. 92, 96).
Other than spadding the curtain, no other precaution had
been taken to keep the trailing cable f rorn collapsing on the
curtain. Spadding is usually sufficient but a temporary post or
jack had not been used to. block the curtain from moving against
the rib (Tr. 94, 95). Childs estimated that the trailing cable
was 1 1/2 inches thick (Tr. 99).
Steve Behling, Consolidated's safety supervisor, accompanied
MSHA inspector Heggins during the inspection. Behling took the
inspector to 2 Main West because that section was probably one of
the best in the mine (Tr. 100, 101).
When the two men approached entry 5 no comment was made concerning the curtain at crosscut 29. The men saw the cable
against the curtain and Behling knew there was a problem. Corning
around the corner, Behling saw Petty waving his light to shut
down the miner operator (Tr. 101-106). Inspector Heggins continued on and got out his anorneter. It wouldn't turn and Heggins
said the company was under an order situation (Tr. 103).
After the mining activity was discontinued the curtain was
picked up and pulled out. Behling rechecked and found they still
had no air (Tr. 105). They then started pushing the curtain out.
At that point Heggins got an air reading of about 6100 (Tr. 105).

616

When Behling and Heggins got to the surface the inspector
said he was issuing a 104(d)(l) Order. He stated that Petty
should have known about the ventilation problem (Tr. 106, 107).
Behling conducted his own investigation by interviewing the
miners as well as the foreman.
Behling concluded that the water
line breakdown, the movement of the shuttle car into the
crosscut, the almost full shuttle car, the fact that equipment is
always backed away from the face and the actions of Petty, caused
him to believe that there were two ways of viewing the situation
(Tr. 109-113). He also believed that Heggins and Petty were on
opposite sides of the curtain as they approached the face (Tr.
111).

As soon as Petty recognized the problem he properly shut
down the mining operation (Tr. 111, 122).
Even though the shuttle car cable and the obstruction had
been removed the air was insufficient; the curtain doesn't fall
all the way back into position (Tr. 116, 117). After the cable
was pulled out it wasn't immediately spadded to the floor.
To reestablish the ventilation the miners started at the
face and went out from there. As they progressed they pushed,
spadded down and laid chunks of coal on the curtain. Activity of
that type would cause a lower air reading (Tr. 118, 119).
In Behling's opinion when the shuttle car started up the
cable moved against the curtain and pulled the spad out. The
time interval was about 15 seconds (Tr. 121, 122).
Discussion
The Commission has defined the statutory term of "unwarrantable failure" to mean a violation resulting from indifference, willful intent or serious lack of reasonable care,
Section 104(d)(l}; Westmoreland Coal Company, 7 FMSHRC 1338
(September 1985); U.S. Steel Corp., 6 FMSHRC 1423, 1437 (June
1984).
In this case I find that the respondent's evidence is
credible.
In short, the MSHA inspector and the company's section
foreman arrived at the ventilation problem from different sides
of the brandish curtain at approximately the same time. While
the presence of a section foreman is not necessary to establish
an unwarrantable failure I find the violative events occurred in
the short period of approximately 20 seconds as claimed by the
operator.
The Secretary argues extensively CTr. 124-131) that his
evidence is credible and the operator's is fatally flawed.

617

I am not persuaded. The Secretary's evidence relies on
three factors to establish an unwarrantable failure.
These
factors consist of the placement of the curtain at crosscut 29,
the gaps and sagging curtain from crosscut 29 to the working
face, and, finally, the restriction of the air flow caused by the
cable pushing the curtain against the rib.
Concerning crosscut 29: Joint Exhibit No. 1 illustrates the
placement of the curtain.
I am unable to see how the position of
the curtain as shown on the exhibit could interfere with the air
flow. The witnesses referred extensively to the exhibit
throughout the hearing.
I agree with section foreman Petty that
the curtain placement at crosscut 29 did not affect the air flow.
The operator had moved the curtain to that position to prevent
the shuttle cars from snagging it as they turned at the crosscut.
The second facet concerns the gaps or sags in the curtain.
MSHA's evidence is not precise on this point.
I credit the
operator's evidence that the minimal spacing at the top caused
the loss of no more than 3000 to 4000 CFM from the measured air
flow of 17,000 CFM.
The final asserted defect is that the curtain had been
pushed against the rib by the trailing cable. Everyone
recognized that this condition effectively restricted the air
flow.
I do not find it credible that this restriction could have
existed for an hour to an hour and a half as the inspector
asserts.
I credit witness Day's contrary opinion that the cable
snapped tight and pulled out the bottom of the curtain as the
miner went around the corner after the water line had been fixed.
The time involved was less than 30 seconds.
A credibility issue also arises as to whether the inspector
watched the mining of the coal for two or three minutes or
whether the shuttle car was filled in 10 to 15 seconds. Petty,
Day and Childs all confirmed the short period of time involved.
Inasmuch as Day and Childs loaded the car they would be in the
best position to know the extent to which it had been filled and,
conversely, the amount of time necessary to finish loading it.
For the foregoing reasons, I conclude that the conduct of
the operator did not constitute an unwarrantable failure to
comply with the ventilation regulation. Accordingly, the
allegations of unwarrantable failure should be stricken.
The facts and the stipulation of the parties confirm that
the operator violated 30 C.F.R. § 75.316. Accordingly, the
citation should be affirmed.
Further, based on the stipulation, the evidence and the
statutory criteria pertaining to the assessment of civil
penalties, 30 u.s.c. § 820(i), I deem that a penalty of $100 is
appropriate.

618

Conclusions of Law
Based on the entire record and the factual findings made in
the narrative portion of this decision, the following conclusions
of law are entered:
1.

The Commission has jurisdiction to decide this case.

2.

Respondent violated 30 C.F.R. § 75.316.

3. The conduct of respondent did not constitute an
unwarrantable failure to comply with the above regulation.
4. Citation 2503093 should be affirmed and a civil penalty
assessed therefor.
ORDER
Based on the foregoing facts and conclusions of law, I
the following order:

enter

1. The allegation that respondent's conduct constituted an
unwarrantable failure to comply with the regulation is stricken.
2.

Citation 2503093 is affirmed.

3.

A civil penalty of $100 is assessed.

4. Respondent is ordered to pay to the Secretary the sum of
$100 within 40 days of the date of this decision.

Law Judge
Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Hal Pos, Esq., Parsons, Behle & Latimer, 185 S. State Street,
P.O. Box 11898, Salt Lake City, UT 84147 (Certified Mail)
/blc

619

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

April 21, 1986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 85-278
A.C. No. 46-01433-03501 B70

v.

Loveridge Mine

OTIS ELEVATOR COMPANY,
Respondent
ORDER APPROVING SETTLEMENT AGREEMENT
Appearances:

Before:

Howard K. Agran, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner; w. Scott Railton, Esq.,
Reed, Smith, Shaw & Mcclay, Washington, D.C.,
for Respondent.

Judge Broderick

When the above case was called for hearing in Pittsburgh,
Pennsylvania on March 18, 1986, Petitioner made a motion on
the record for approval of a settlement agreement reached
by the parties to this proceeding.
The case involves a single citation, charging a violation
of 30 C.F.R. § 75.511 because an unqualified person was
performing electrical repairs on an automatic ·elevator.
MSHA contended that the violation contributed to an injury,
because the repairman did not notify mine management that he
was going to work on the elevator, and a miner was injured
while attempting to board it. The violation was originally
assessed at $500.
In his motion counsel states that the repairman in
question had not taken the West Virginia examination for the
mine electrical work, but the government does not contend
that he is not technically qualified to do electrical repairs.
The government is not able to state that the violation
contributed to the injury.
The government does not allege
that the work performed by the repairman violated any mandatory
safety standard.
Respondent is a large company, has a
history of one prior violation, and abated the instant
violation promptly, by giving MSHA a written statement that
the mine operator would furnish a "qualified person" to
to accompany Respondent's mechanics when electrical work is
performed on mine elevators. The part s agree to settle the
case by payment of a penalty of $375.

620

I have considered the motion in the light of the criteria
in section llO(i) of the Act, and conclude that it should
be approved.
Accordingly, the settlement is APPROVED, and Respondent
is ORDERED to pay the sum of $375 within 30 days of the date
of this order.

J

MMft

{
·

µ3VZJ dut/l di"-

James A. Broderick
Administrative Law Judge

Distribution:
Howard Agran, Esq., U.S. Department of Labor, Office of t~e
Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified
Mail)

w. Scott Railton, Esq., Reed, Smith, Shaw & Mcclay, Suite 900,
1150 Connecticut Ave., N.W., Washington, D.C. 20036-4192
(Certified Mail)
slk

621

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

April 22, 1986

DON KEEN, WILLIAM HENSLEY,
HUBERT D. ROWE, ARVIL ARWOOD,
JERRY BARRETT, KERMIT BARNART,
and JACK COLE, .
Complainants

v.
GARDEN CREEK POCAHONTAS
COMPANY,
Respondent

.
.
.

DISCRIMINATION PROCEEDINGS
Docket No. VA 86-4-D
MSHA Case No. NORT CD 85-2
Virginia Pocahontas No. 6
Mine

DECISION
Appearances:

Gerald F. Sharp, Esq., Castlewood, Virginia,
for Complainants;
Thornton L. Newlon, Esq., Campbell & Newlon,
P.c., Tazewell, Virginia, for Respondent.

Before:

Judge Melick

This case is before me upon the complaints by the named
individual miners under section 105(c)(3) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et. ~, the
"Act," alleging that each was laid-off from the Garden Creek
Pocahontas Company (Garden Creek) on October 22, 1984, in
violation of section 105(c)(l) of the Act.l/ They are each
seeking back-pay from that date until they-returned to work
on January 2, 1985, with accrued benefits and interest.

1/

Section 105(c)(l) of the Act provides in part as follows:
"No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the
statutory.rights of any miner, • • • in any coal or other
mine subject to this Act because such miner, • • . has filed
or made a complaint under or related to this Act, including a
complaint notifying the operator or operator's agent, or the
representative of the miners at the coal or other mine of an
alleged danger or safety or health violation in a coal or
other mine, • • • or because of the exercise by such miner,
• • • on behalf of himself or others of any statutory right
afforded by this Act."

622

In order for the Complainants to establish a prima
facie violation of section 105(c)(l) of the Act, they must
prove by a preponderance of the evidence that they engaged in
an activity protected by that section and th.at the lay-off or
discharge they suffered was ·motivated in any part by the protected activity. Secretary' ex. rel. David Fasula v. Consolidation coal Company, 2 FMSHRC 2686 (1980), rev'd on other
grounds sub. nom. Consolidation Coal Company v. Marshall, 663·
F.2d 1211 (3rd Cir. 1981). See also Boitch v. FMSHRC, 719
F.2d 194 (6th Cir. 1983) and NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), affirming burden of proof
allocations similar to those in the Fasula case.
The compla.,inants specifically allege that officials of
Garden Creek threatened to lay them off and in fact subsequently laid them off for the failure of the union local, of
which they were members, to waive as a condition of employment the "requirements of [a] safeguard and grievance settlement concerning a 'dispatcher' to control traffic on idle
days".2/ They claim that their refusal to work without a
full-time "dispatcher" was a protected activity and that
their lay-off based on that work refusal was therefore in
violation of the Act.
It is indeed well established that a miner's exercise
of the right to refuse work is a protected activity under the
Act so long as the miner entertains a good faith and reasonable belief that to work under the conditions presented would
be hazardous. Miller v. FMSHRC, 687 F.2d 194, (7th Cir.
1982); Robinette v. United Castle Coal Company, 3 FMSHRC 803
(1981). For the reasons set forth in this decision however,
I do not find that the miners' work refusal in this case was
based on such a belief. Accordingly whether or not their
lay-off or discharge was motivated by that work refusal,
their complaint herein must fail.
According to Kenneth Lester, vice-president of Local
2421 of the United Mine workers of America CUMWA) and chairman of the mine committee, he was called into a meeting on
October 19, 1984, by mine superintendant Vern Reynolds.
Reynolds called the meeting to announce a lay-off and to
advise the union of the company's plans for an impending idle
period in a non-producing status. Reynolds reportedly stated
that the company intended to lay-off everyone except 14 of
the union miners and that 7 of the 14 would be assigned to
underground work during this period.
2/ Although the duties of a "dispatcher" were never precisely defined in this case it appears that a "dispatcher"
coordinates rail traffic in the mine.

623

Lester says that he then asked Reynolds who would be
employed as the "dispatcher". Reynolds said there would be
no "dispatcher" and that if they insisted on having a "dispatcher" there would be no undergound work at all. Lester
then indicated that he wanted to have a union meeting to
discuss the subject and would get back to Reynolds. A union
meeting followed on October 21, at which the membership voted
to insist upon the employment of a full-time "dispatcher" as
a pre-condition for their continued underground work during
the contemplated idle period.
On October 22, there was another meeting with Reynolds.
According to Lester, Local 2421 president Donny Lowe told
Reynolds at thi·~ meeting that the union wanted a 11 dispatcher 11
to control the underground traffic and Reynolds responded
that under the circumstances he would then lay-off the seven
underground men. Lester testified that Reynolds then telephoned his superior, Rufus'Fox. He overheard Reynolds state
on the phone that the union was asking for a "dispatcher".
Reynolds then hung-up and said he would lay-off the seven men.
The testimony of Lester is corroborated in essential
respects by other witnesses called by the Complainants
including the then general mine foreman George King. King
testified that sometime during the meeting on October 22,
someone said there would be no one working underground
without a "dispatcher" and Reynolds responded that there
would then be no one working underground.
In his posthearing deposition Reynolds also acknowledged that he told
the union representatives that "we would work seven men underground with no dispatcher or we would work no men underground." The Complainants' allegations in this regard are
ther ore ~ccepted as· an accurate accounting of events.
The Complainants argue that their work refusal under
the circumstances was based on a "reasonable, good faith
beli 11 that for seven miners to work underground without a
full-time dispatcher during the idle period would have been
hazardous. This argument is based on their purported
reliance upon a safeguard notice that had been issued by
Inspector Charlie Wahles of the Federal Mine Safety and
Health Administration (MSHA) on April 13, 1982. They
maintain that it would have violated that safeguard to have
continued working without the additional employment of a
full-time dispatcher and that a violation of the safeguard
would constitute per se a dangerous condition justifying a
work refusal under the Act.
I do not find however that the Complainants could
reasonably have believed that the safeguard would have been
violated under the circumstances. The safeguard notice,

624

issued by virtue of the regulatory standard at 30 C.F.R. §
75.1403 and directed to the Virginia Pocahontas No. 6 Mine,
reads as follows:
The mine traffic at this mine has been under the
direction of a dispatcher in the past,. however
since the mine has been in a non-producing
status, the dispatcher has been eliminated.
several persons are still employed on each shift
in different areas of the mine {approximately 35).
Man trips and other mine traffic have been
operating to and from the sections and other work
areas with no assurance that they have a clear
road. Trris is a notice to provide safeguards
requiring that man trips or other mine traffic be
under the direction of a dispatcher or other
competent person designated be the operator and
that man trips or other mine traffic shall not be
permitted to proceed until the operator of the
man trip or other mine traffic is assured by the
dispatcher or other competent person that he/she
has a clear road.
The safeguard on its face does not limit the mine
operator to the use of only a full-time "dispatcher" but
allows him to use any "competent person," full-time or
part-time, to perform the same function.
In addition, in the
case of Secretary v. Southern Ohio Coal Company, 7 FMSHRC 509
(1985) this Commission held that a safeguard notice must
identify with specificity the nature of the hazard at which
it is directed and the conduct required of the operator to
remedy such hazard. The Commission further held that in
interpreting a safeguard notice a narrow construction of the
terms'of the safeguard and its intended reach is required.
7 FMSHRC at 512.
In this regard, by its own specific terms
the safeguard herein was applicable only when 35 miners were
employed underground.
In this case it is not disputed that
no more than seven union miners and perhaps up to three
supervisors were to be employed underground. For this
additional reason there clearly would not have been any
violation of the safeguard to have continued operating the
subject mine in a non-producing status with seven union
miners and three supervisory personnel as contemplated.
In addition the apparent failure of the Complainants to
have consulted with the MSHA inspector who issued the safeguard as to whether the contemplated work conditions would
have violated the safeguard demonstrates a lack of good faith
on their part. Significantly the Complainants also failed to
call that inspector as a witness in these proceedings. It is
reasonable to infer from the absence of that key witness that
his testimony would not have been supportive of the Complainants position herein and that they knew it.

625

The Complainants also demonstrated a lack of good faith
by exercising their work refusal before determining what
alternative s ety procedures were planned for the impending
idle period in the absence of a full-time 11 dispatcher 11 •
The
evidence at hearing showed that other procedures could have
been followed for the safe control of rail traffic but there
is no evidence that the Complainants even considered these
alternatives. It is apparent from this that they were more
interested in preserving another job rather than exercising a
sincere concern for safety.
I also note from the undisputed evidence that other
mines in the region similar to the Virginia Pocahontas No. 6
mine and with ~.similar single track system do not generally
use, and are not required to employ, a 11 dispatcher 11 •
The
evidence shows for example that each of the Island Creek Coal
Company mines in the area has established its own policy in
this regard. For example ~t its Beatrice Mine no "dispatcher"
is used unless a supervisor decides it is necessary in a
particular circumstance. At the Virginia Pocahontas No. 1
Mine a "dispatcher" is used only when more than 12 union
miners are employed underground. At the Virginia Pocahontas
No. 2 Mine a "dispatcher" is used only when at least 25 union
employees are working underground. At the Virginia Pocahontas
No. 3 Mine a "dispatcher" is employed only if more than two
pieces of track equipment are being used on one side of the
mine and at the Virginia Pocahontas No. 5 Mine a "dispatcher"
is employed only if two or more pieces of equipment are being
used. The evidence shows that other Virginia mine operators
including Westmoreland Coal Company have also operated without
"dispatchers".
In addition former superintendant Reynolds said in his
deposition placed in evidence that he checked with federal
mine inspector Jack Burnette and a state mine inspector concerning the procedures he intended to use during the idle
period at issue and that both agreed that it would not have
been uns e to operate the mine in the proposed manner.~/
Under the circumstances I find that the Complainants
have failed in their burden of proving that they entertained
a good faith and reasonable belief that their refusal to work

3; The Complainant's objection to this testimony at the
posthearing deposition on the grounds that it was hearsay is
denied.

626

without a "dispatcher" under the described conditions would
have been hazardous. Accordingly, the Comp int herein must
be, and is, dismissed.

Law Judge

Distribution:
Gerald F. Sharp, Esq., UMWA, District 28, P.O. Box 28,
Castlewood, VA 24224 (Certified Mail)
Thornton L. Newlon, Esq., Campbell & Newlon, P.C., P.O. Box
717, Tazewell, VA 24651-0717 (Certified Mail)

rbg

627

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

April 23, 1986

.
..
..
.
..

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

v.
BANNER COAL COMPANY, INC.,
·Respondent

CIVIL PENALTY PROCEEDING
Docket No. VA 85-26
A.C. No. 44-04614-03505
No. l Plant

DECISION
Appearances:

Before:

Craig w. Hukill, Esq., Office of the
Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Petitioner;
Joe Douglas Kilgore, Banner Coal Company,
Inc., Coeburn, Virginia for Respondent.

Judge Melick

This case is before me upon the petition for civil
penalty filed by the Secretary of Labor pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 801 et~, the "Act," for an alleged violation of
the regulatory standard at 30 C.F.R. § 77.807-3. The general
issues before me are whether Banner Coal Company, Inc.,
(Banner} has violated the cited regulatory standard and, if
so, whether that violation was of such a nature as could
significantly and substantially contribute to the cause and
effect of a mine safety or health hazard i.e., whether the
violation was "significant and substantial". If a violation
is found it will also be necessary to determine the appropriate civil penalty to be assessed in accordance with section
llOCi) of the Act.
~
The citation at bar, No. 2277631, alleges a "significant
and substantial" violation of the regulatory standard at 30
C.F.R. § 77.807-3 and charges as follows:
"The energized high voltage power lines (12,440
volts) passing over the stock pile area ranges in
hight [Sic] from 26 feet to 34 feet. The front-end
loader measures 18 feet high when the bucket is
extended to its full hight [sic]. The coal trucks,
dumping under the high voltage lines, are 27 feet

628

high. Both the front-end loader and the coal
trucks can reach within the 10 feet minimum distance clearance required to be maintained from high
voltage power lines."
It is not disputed that the cited standard requires that
when any part of any equipment operated on the surface of any
coal mine is required to pass under or by any energized highvoltage powerline and the clearance between such equipment
and powerline is less than 10 feet such powerlines must be
deenergized or other precautions taken.
On February 28, 1985, Bruce Dial, an inspector for the
Federal Mine Sa~ety and Health Administration (MSHA) was performing an inspection at Banner's No. 1 Plant. It is undisputed that energized power lines carrying 12,440 volts passed
over a portion of the coal stockpile at the plant. In addition a Hough 100 model front-end loader was then operating
beneath the power lines with its bucket extended to its full
height of 18 feet from the ground. Both tandem and tractortrailer coal trucks were also dumping on the stockpile in
close proximity to the power line and the larger trailers,
when extended to the full dumping position, measured 27 feet
from the ground.
Inspector Dial measured the height of the high voltage
power line using a warren-Knight Abney Level.
It was 26 feet
at the lowest point he was able to measure i.e. a location 10
feet horizontally from the lower support pole. Dial observed
that as coal was being added to the stockpile the distance
between the top of the stockpile where the equipment was
operating and the high voltage power line was decreasing
thereby increasing the potential hazard.
Banner disputes only the accuracy of Dial's measurement
of the height of the power lines using the Abney Level.
Banner President, Joe Douglas Kilgore, telephoned a civil
enginer and a land surveyer who purportedly informed him that
a 20% error is possible using the Abney Level and that the
instrument would not be accurate. Kilgore did not however
take his own measurements or seek to have any more accurate
measurements made even though the cited area remained roped
off for more than 3 months. Accordingly, there is no affirmative evidence contradicting the measurements taken by Inspector Dial.
In any event even had the measurements been in
error by as much as 20% there would nevertheless have been a
violation of the cited standard.
According to Dial, electrocution of a truck driver was
likely under the circumstances since the extended bed of the
tractor-trailer reached 27 feet and the power line was then
only 26 feet above stockpile. Under the circumstances it
would be reasonable to expect that the truck bed could strike

629

the low power line causing serious injuries or electrocution
to the operator. Another MSHA inspector, Daniel Graybeal
also observed that there had been 4 fatalities within the
MSHA district over the previous 6 years from mining equipment
contacting high voltage power lines. Within this framework
of evidence it is clear that the violation herein was serious
and "significant and substantial." See Secretary v. Mathies
Coal Co., 6 FMSHRC 1 (1984).
Inspector Graybeal had also previously inspected the
Banner No. 1 plant in September 1984. Graybeal did not cite
Banner for any violation of the standard at issue because he
saw no equipment operating in close proximity to the power
line.
It is not disputed however that Graybeal discussed
the potential problem with Banner president Kilgore warning
him that he was required to maintain a 10 foot clearance from
the power line.
Kilgore was further warned not to stockpile
coal beneath the power line to the point where a 10 feet
clearance could not be maintained. Under the circumstances I
find that Kilgore was negligent in permitting the build-up of
the coal stockpile beneath the power lines to the point where
the minimum clearance was not maintained.
In assessing a civil penalty in this case I have also
considered that the mine operator is small in size, has a
limited history of violations and abated the cited condition
in a good faith and timely manner.
Indeed the evidence shows
that Banner expended $1,705 to have the Old Dominion Power
Company raise the level of the power lines. Considering
these factors I find that a civil penalty of $250 is
appropriate.
ORDER
Banner Coal Company, Inc. is ordered to pay a civil
penalty of $250 within 30 days of the date of t is decision.

Distribution:
Craig W. Hukill, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
Joe Douglas Kilgore, President of Operations, Banner Coal
Co., Inc., P.O. Box 123, Coeburn, VA 24230 (Certified Mail)
rbg

630

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

FMC CORPORATION,
Contestant

.

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

April 23 / 1986
CONTEST PROCEEDING

Docket No. WEST 84-117-RM
Citation No. 2009928; 6/20/84
FMC Trona Mine

DECISION
Appearances:

John A. Snow, Esq., James A. Holtkamp, Esq.,
and Matthew F. McNulty, III., Esq., Salt Lake City,
Utah,
for Contestant;
James H. Barkley, Esq., and Margaret Miller, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado,
for Respondent.

Before:

Judge Lasher

This proceeding arose upon the filing of a notice of contest
on July 10, 1984, pursuant to Section 105(d) of the Federal Mine
Safety and Health Act of 1977 (30 U.S.C. § 815(d)(l977)), herein
the Act.
By its initiation of the proceeding the Contestant <herein
FMC) sought to obtain review of Part "a 11 l; Citation No. 2009928,
issued June 20, 1984, charging it with a violation of 30 C.F.R.
§ 57.21-78 ~/to wit:
The Marietta Bore Miner No. 7426 approval No. 2G-2431A-2,
was not maintained in permissible condition because:
11

(a) On 3-29-84 the short circuit protective relays at
the remote starter were found to be set for 1200 amperes
fault current.

!/

Part "bn of the citation was vacated by my written order
herein dated July 23, 1985, after the Secretary moved for
vacation at hearing (See separate transcript dated March 8,
1985).
'];/ This regulation provides: "Only permissible equipment
maintained in permissible condition shall be used beyond the last
open crosscut or in places where dangerous quantities of
flammable gasses are present or may enter the air current."
631

A short-circuit analysis indicated that the minimum expected

phase-to-phase fault current was 1005 amperes. Therefore,
the machine and trailing cable were not properly protected
against short-circuit faults.
Ref 30 C.F.R. 18.35{a)(4) and
18.35(a)(5)(ii). The protective relay settings were reduced
to 800 amperes 5-1-84.
Although the manufacturers MSHA approved design specif ication Ref. 2G-2431A-2 3; stipulates maximum relay settings
of 1200 amperes the specification also stipulates maximum
trailing cable length as follows: "Cable from power source
to sled input is less than 100 feet.
Total length from
power source to machine not to exceed 700 feet.
Protection
at power source is provided by a circuit breaker with an
instantaneous trip setting of 1500 amperes.
It was found that the 4160 volt Bore Miner branch circuit
was far in excess of these specifications."
FMC operates a large underground trona mine (Tr. 46, 62).
It liberates approximately 1,500,000 cubic feet of methane each
24 hour period (Tr. 46).
It is an extremely gassy mine (Tr. 47),
and, as conceded by Contestant, the mine's face equipment is
required to comply with the permissibility regulations (Tr. 47;
FMC Brief, p. 1).
The pertinent permissibility regulation mentioned in the
Citation is 30 C.F.R. 18.35(a)(5)(ii), 4; under the rubric:
"Portable {trailing} cables and cords",-which provides:
3/ As will be explained further subsequently, this reference
number refers to the second approval (Ex. C-2) of the miner by
appropriate government regulatory agency.
The first approval for
the miner/starter sled (Ex. C-1) was by the Bureau of Mines and
was shown on t'he original specifications ( C-1) which presumably
accompanied the miner and sled when such were received by FMC on
July 5, 1974. (Tr. 259).
The second approval dated July 30,
1974, was sent to the manufacturer of the miner/sled and not to
FMC. A third approval (Ex. C-3) which was made a part of this
record applied to another miner and has no impact on the resolution of this matter (Tr. 89, 90, 108, 114).
4/ A general statement of the purposes of the regulations with
which Section 35Ca)(5)(ii) is grouped is set forth in 30 C.F.R.
18.1, to wit:
"The regulations in this part set forth the requirements
to obtain MSHA: (a) Approval of electrically operated
machines and accessories intended for use in gassy mines
or tunnels, (b) certification of components intended for
use on or with approved machines, Cc) permission to
modify the design of an approved machine or certified
component, Cd) acceptance of flame-resistant cables,
hoses, and conveyor belts, Ce) sanction for use of experimental machines and accessories in gassy mines or
tunnels; also, procedures for applying for such approval
certification, acceptance for listing; and fees. 11
632

"(a) Portable cables and cords used to conduct electrical energy
to face equipment shall conform to the following:

x

x

x

x

x

x

x

(5) Ordinarily the length of a portable (trailing) cable
shall not exceed 500 feet. Where the method of mining
requires the length of a portable (trailing) cable to be
more than 500 feet, such length of cable shall be permitted only under the following prescribed conditions:

x

x

x

x

x

x

x

(ii) Short-circuit protection shall be provided by a
protective device with an instantaneous trip setting
as near as practicable to the maximum starting-currentinrush value, but the setting shall not exceed the trip
value specified in MSHA approval for the equipment for
which the portable (trailing) cable furnishes electric
power."
CONTENTIONS OF THE PARTIES
The evidence and arguments in this matter are difficult to
marshal. A preliminary birds-eye view of the dispute is helpful.
The Secretary's contentions, evidenced at hearing and in its
post-hearing brief, consider Part "a" of the Citation to have
alleged two infractions. First, that the trip setting on the
short-circuit protection device required by the cited regulation,
30 C.F.R. 18.35Ca)(5)Cii), was set too high at 1200 amperes.
Secondly, the Secretary alleges that FMC was in violation by
operating the miner contrary to the manufacturer's specifications
as to the lengths of trailing cable between the miner and (1) the
sled, and (2) the "power source", as set forth in the second
government approval, Ex. C-2, at page 8, which FMC denies
receiving or of having any knowledge.
FMC, in addition to denying any knowledge of the requirements of the second approval ("revising" the manufacturer's
specifications for the miner and sled), contends that it
faithfully conformed to the requirements of the first approval
CEx. C-1, Tr. 91) which authorized a trip setting of 1200 amperes
and that it had no knowledge of the second approval which set
forth maximum trailing cable lengths between the miner and sled
and power source and wherein the only reference to the term
"power source" is used. FMC contends that the term "power
source" in any event is vague and that the wording of 30 C.F.R.
18.35, "when reviewed in context with the specific 1200 amp
setting requirement, is difficult to interpret and follow" and
fails to afford FMC of fair notice as what is required and
expected. As an alternative argument, should it be charged with
notice of the second approval containing the cable length
requirements, FMC

633

argues that the "power source" was the remote starter sled, and
that the 700-foot trailing cable length between the miner and the
sled was proper. In this connection, the Secretary contends that
the "power source" refer
to in the second approval (Ex. C-2)
is a transformer located 10,300 feet from the miner and which is
the point of origination
the 4160 volt power upon which the
miner runs.
PRELIMINARY FINDINGS
The preponderant reliable and probative evidence
establishes the following.

record

On March 29, 1984, a federal mine inspector inspected the
mine, including Marietta Bore Miner No. 7426 (herein the miner)
(Tr. 47, 83). The purpose of the miner is to mine the product;
the miner thus operates at the face past the last open crosscut
(Tr. 47).
It is electrically powered (Tr. 47) and as an electrically powered piece of face equipment it is required to comply
with all permissibility regulations.
The miner was ordered by FMC by purchase order dated May 7,
1973, and the miner was received by FMC on July 5, 1974 (Tr. 42,
259). National Mine Service Company was the manufacturer of the
miner and its accompanying power sled (Tr. 258). The 1200 ampere
relay setting on the power sled for the miner was set by FMC in
accordance with the schematic diagram prepared by National Mine
Service Company (Tr. 258; Ex. C-1). The schematic drawing or
print contains the following admonition:
"This drawing is not to
be changed without approval of the Bureau of Mines." (Tr. 259).
This first certification approval for
miner was subsequently
revised in a July 30, 1974 transmittal from Joseph J. Seman, of
the Mining Enforcement and Safety Administration, to National
Mine Service Company (Ex. C-2), herein r erred to as the "second
approval." FMC was never apprised of the revision contained in
the second approval and continued to operate the miner in accordance with the schematic print requirements that were delivered
with the machinery in question (Tr. 259-261). The Secretary
failed to establish FMC's knowledge or awareness of the second
approval, actually or constructively. (Tr. 232, 233, 288-290).
FMC had no knowledge of the second approval prior to or at the
time of inspection (Tr. 264, 288-290, 320, 330, 354-355).
On the day of the inspection the miner derived its power as
generally shown in Exhibit R-1. Thus, the initial source of all
mine power was a surface generator connected to a surface
transformer delivering 13,800 volts (Tr. 48). From this surface
generator a power cable transmitted the power to a second transformer located underground (Tr. 48). At the second transformer
the power was reduced to 4,160 volts (Tr. 48, 49,) and this
electric current (4160 volts) by which the miner was powered CTr.
64) traveled from the second transformer 10,300 feet through a

634

starter sled to the miner (Tr. 48-56, 59, 100). The starter
(remote control) sled was downstream some 9,600 feet from the
transformer and 700 feet upstream of the miner CTr. 48, 51,
104-106, 109, 144, 269, 331; Ex. C-1). The miner's remote
starter sled contained the on-and-off switch for the miner and
its short circuit protective device (Tr. 48, 50) the trip setting
for which was set at 1,200 amps (Tr. 48, 56) which is arrived at
by COMPUTATION (Tr. 261).
A relay (protective device) setting is the predetermined
amount of fault current required to deenergize a machine (Tr.
128-130, 282). Fault current is the amount of current (amps)
which will flow through a wire in the event of a fault (short
circuit)(Tr. 129, 146, 147, 340).
The power source of the 4,160 volts to the miner was the
4,160 volt transformer (Tr. 49, 59, 60, 64-67, 80, 92-95,
13 133, 140a, 160-161, 193, 199, 311-313, 344, 363; Ex. R-2).
In evaluating FMC's contention that the starter sled, rather
than the transformer, was the "power source", it is first noted
that the purpose for the remote control sled is to comply with
regulations which prohibit high voltage switching devices on
miners (Tr. 50). Therefore, a high voltage on/off switch must be
placed in a remote location away from the face and in fresh air
(Tr. 51). This on and off switch does not produce power as a
source, but simply "interrupts" it (Tr. 59). Under FMC's arrangement, had there been a short-circuit in the miner, the power
would have been interrupted 700 feet away at the started sled
(Tr. 50>. It is also noted (1) that IEEE 5; Greenbook (Ex. R-2)
mentions only generators or transformers
power sources and (2)
that the 4160 voltage upon which the miner was powered originated
at the second (underground) transformer 10,300 feet distant (Tr.
135
8).

as

The maximum starting "inrush" current of the miner was 613
amps (Tr. 146, 208).
"Maximum starting current inrush Value" is
the amount of current expressed in amperes required to start the
miner (Tr. 129, 318-319, 338-339). Once the miner is started
even
ss current is required to keep it running (Tr. 129).
As previously noted, on the day of the inspection (March 29,
1984), the trip setting on the short circuit device for the miner
(located on the sled) was set at 1200 amperes (Tr. 48, 56, 267).
Such
00-arnpere setting was specified by the first government
approved manufacturer's specification for the miner (Ex. C-1) and
was not specified to be either a "maximum," "ceiling"" or
"minimum" setting, or otherwise characterized (Ex. C-1, Tr. 207,
210).
~/

Institute of Electrical and Electronic Engineers.

635

At the time of the March 29, 1984 inspection, both parties
present (MSHA and FMC) agreed that resetting the switch to a
lower setting "would put FMC out of compliance with the specifications in the print" (Tr. 268). The MSHA inspectors were
unwilling to see the setting reduced for fear of violating the
specifications contained in the schematic print (Tr. 268-270).
Only after a second inspection was undertaken on May 1, 1984, and
presumbly further contemplation, was FMC authorized to reduce the
setting (Tr. 268).
Subsequent to March 29, 1984, a fault current Cshortcircuit} analysis was conducted by MSHA electrical engineer
Terrance D. Dinkel which indicated that the minimum phase fault
current, in the event a fault occurred in a cable at the miner,
to be 1005 amperes. Had such a fault occurred with the trip
setting on the protective device on the sled set at 1200 amperes,
the circuit would not have been interrupted (Tr. 149, 150, 166}.
Thus, the miner was not adequately protected against shortcircuit faults (Tr. 155-156). To make the short-circuit protection
fective, the maximum inrush current being 613 amps and
the low fault current being 1005 amps, the trip setting should
have been set as close to the 613 ampere setting as possible (Tr.
151, 152, 164) in approximately the 650-700 ampere range.
Qualified electrical engineers are able to make such adjustments
to the trip setting (Tr. 154-155, 179, 201, 219).
The only trailing cable outby the miner (upstream from the
miner toward the surface transformer) was the 700-foot length of
cable between the miner and the starter sled (Ex. R-11 Tr. 41,
62a, 63, 110, 270). The 9600-foot length of cable between the
sled and the second (4160 volt) transformer-found to be the
"power source" herein-was "feeder" cable or power cable, and was
not trailing {portable) cable for the miner within the meaning of
30 C.F.R. 35.18(a)(5)(ii) (Tr. 60, 63, 68, 77, 110, 116,
278-281).
The longer the cab , the greater amount of current is lost
as it travels through the cable (Tr. 148, 156, 160-164, 192) because of "resistance" in the conduction of the current (Tr. 160).
Loss of fault current as it travels through excessive cable thus
can result in a circuit breaker not tripping (Tr. 148-150,
151-161, 175).
The safety standard (Section 35.18(a)(5)) relied on by the
Secretary contains no reference to the term "power source." Nor
is this term found in the original schematic print (Ex. c-1) for
the miner's electrical set-up.
It appears, from the standpoint
of the documentary evidence herein, only in MSHA's subsequent
second approval (Ex. C-2, p.8) since the provisions of Ex. C-3,
p. 5 do not apply to the miner in question (Tr. 108, 114).

636

The applicable "power source" language in toto-relied upon
by the Secretary relating to the excessive cable length issue found in the second approval dated July 30, 1974, (Ex. C-2, p. 8)
reads as follows:
TRAILING CABLE
3 Conductor, No. 2, SHD-GC, 5 kv, 2.09" O.D., flameresistant between miner and remote skid-mounted (open-type)
sled containing starter and Femco ground monitor chopper
receiver.
Power input and output of sled unit is made
through quick disconnect plugs.
Cable from power source to
sled input is less than 100 feet.
Total length from power
source to machine not to exceed 700 feet.
Protection at
power source is provided by a circuit breaker with an instantaneous trip setting of 1500 amperes. (Emphasis added)
DISCUSSION, ULTIMATE FINDINGS,
AND CONCLUSIONS
Taking up the first alleged infraction mentioned in the
Citation, that relating to the 1200 ampere trip setting, FMC's
primary contention is set forth at page 6 of its Brief, to wit:
"MSHA suggests that the specifications regarding
short-circuit protection provided by the manufacturer
should have been modified by FMC in accordance with the
regulations found at 30 c.F.R. § 18.35 . • . • With
this suggestion MSHA asserts that FMC was under a
duty to ignore the specif i~ 1200 amp setting and to
operate the equipment at an " • • • inferred setting,
which should be lower than the ceiling level." Apparently MSHA believes that the 1200 amp setting is
the ceiling level. MSHA advances this position in spite
of the fact that the manufacturer's specification level
of 1200 amps is nowhere referred to as a ceiling level.
In relying upon § 18.35 to support its contention of
violation, MSHA requires a tortured and unnatural reading of the regulation in question. By MSHA's own admission, such a reading would require the operator to
ignore a specifically authorized level and adjust the
equipment to an "inferred setting".
I disagree that the regulation, i.e., subparagraph i i ,
requires the mine operator to ignore a specifically authorized
level per~·
FMC's argument completely ignores the "excessive
cable length" consideration which triggers the applicability of
Subparagraph" ii). This contention and FMC's claim that it did
not have "a fair indication" of what was required by the regulation~require further examination of the standard.

637

Analysis of section 18.35(a)(5)(ii) reveals that it consists
of two phrases separated by a comma-each embodying a distinct
concept. The regulation's essence is in the first phrase: that
the short-circuit protection shall be provided by a protective
device with an instantaneous trip setting as near as practicable
to the maximum starting-current-inrush value. The second phrase
is a limitation on the first phrase--not a setting independently
authorized by the regulation as FMC contends. The second phrase
in effect says, that in no event shall the setting required by
the first phrase exceed the trip value specified in an MSH~
approval.
Applying the requirements of the regulation to FMC's
electrical arrangement shown in the record, it is concluded that
FMC was required by the regulation to set the instantaneous trip
setting "as near as practicable to" 700 amps, which was the
approximate starting current inrush value. Since this amperage
number was well below the MSHA approved trip value--the second
phrase of the regulation clearly and simply had no application to
the miner in the circumstances involved here. To illustrate, had
the starting current inrush value for some reason been higher,
say 1250 amperes, the secondary protective limitation of the
second clause of the regulation would have become applicable because the trip value shown in the approved specification was 1200
amperes.
The critical focus must be on what set of circumstances trip
the applicability of the standard. Quite simply, a mine operator
must comply with the provisions of subparagraph ii of section
35.18(a)(5} where, as here, the miner's trailing cable exceeds
500 feet.
Thus, contrary to FMC's argument, its awareness of the
second approval (Ex. C-2) was not a prerequisite to its obligation to comply with the standard (Tr. 322) and its alleged
difficulty with the term "power source" has no bearing on this
question.
Reading the regulation in the manner the Secretary urges
requires no strained or tortured interpretation as FMC contends.
It clearly states "Where the method of mining requires the length
of a portable trailing cable to be more than 500 feet, such
length of cable shall be permitted only" under the conditions
prescribed in subparagraph "ii". At the time of the inspection,
and at all other times pertinent herein, FMC knew the miner's
trailing cable length was 700 feet and in excess of the 500-foot
length permitted without compliance with Subparagraph "ii". The
standard, whether viewed in the abstract-or in the context of
FMC's mining and electrical arrangement for the miner--was not
ambiguous, vague, or uncertain. It is concluded that men of
common intelligence would not have to guess at its meaning.
Accordingly, FMC's contest as to this facet of part "a" of the
Citation is found to lack merit and FMC is found in violation of
30 C.F.R. 57.21-78.

638

Turning now to the second infraction charg
to FMC in part
(a) of the subject Citation, that involving excessive cable
length, it is clear that the Secretary solely relies on the
second approval to provide the standard with which FMC must be
in compliance. As previously noted, the second approval limits
the length of the trailing cable from the power source to the
sled input to be "less than 100 feet," and limits the "total
length" from the power source to the miner to not exceed 700 feet.
This regulation obviously contemplates that the cable from the
power source (hereinabove found to be the 4160 volt transformer
some 10,300 feet distant from the miner) be of the "trailing" or
"portable" variety. This, of course, simply does not fit the
electrical cable scheme which FMC had in place at the time of the
alleged violation since the only trailing cable involved was the
700-foot length from the miner to the sled. ~evertheless, it is
clear that FMC's electrical power scheme contravened the requirements
the second approval as to both the 100-f oot and 700-foot
provisions. But this is not the decisive question posed. FMC
aptly points out that as of July 30, 1974, MSHA (actually MSHA's
successor, MESA - the Mining Enforcement Safety and Health Administration, a division of the Department of the Interior), in
extending approval for the miner, had modified the certification
requirement to restrict the cable length from the power source to
the miner to 700 feet, but not apprised FMC of such modification
(Tr. 288-290, 330). There is no specification of pertinent cable
lengths in the first approval (Ex. C-1; Tr. 262). FMC's contention and evidence that it first learned of the second approval
during the second inspection tour on May 1, 1984, was not
challenged or rebutted by the Secr~tary. On the basis of this
record, it would appear that the only way a mine operator would
learn of such a modification as that contained in the second
approval would be, as FMC contends, as a result of the issuance
of a citation. In a case involving analogous circumstances,
Secretary v. U.S. Steel Mining Company, 6 FMSHRC 1369, 1371
(1984), Judge Gary Melick made the following determination:
MSHA Inspector James Potiseck conceded that he could
not verify that the mine operator had received notice
of the necessary mod ication either from MSHA or from
the Service Machine Company prior to the issuance of his
citation. Indeed, Potiseck admitted that the letter in
evidence (Government Exhibit No. 9) supposedly informing
U.S. Steel of the required changes was sent to the wrong
address. The district electrical engineer for U.S.
Steel, Gary Stevenson, testified that after receiving the
citation, he had been unable to locate anyone who had
received the noted letter.
11

Within this framework of evidence, it is clear that U.S.
Steel did not receive notice of the change in the permissibility requirements for the cited longwall mining
unit. Without such prior notice, there can be no violation. Accordingly, the citation is vacated."

639

In Grayned
2294, 33 L. Ed.
various reasons
which I discern

v. City of Rockford, 408 U.S. 102, 92 S. Ct.
2d 222 (1972), the Supreme Court pointed out
for withholding enforcement of vague laws, all of
have applicability here:

urt is a basic principle of due process that an enactment
is void for vagueness if its prohibitions are not clearly
ined. Vague laws offend several important values.
First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws
give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may
act accordingly. Vague laws may trap the innocent by not
providing fair warning.
Second, if arbitrary and discriminatory enforcement is to be prevented, laws must
provide explicit standards for those who apply them. A
vague law imperrnissibily delegates basic policy matters
to policemen, judges, and juries for resolution on an
ad hoc and subjective basis, with the attendant dangers
of arbitrary and discriminatory application. Third, but
related, where a vague :statute "abut($j _µ'pon sensiti:Ve
areas of basic First Amendment freedoms," it "operates
to inhibit the exercise of [those] freedoms." Uncertain
meanings inevitably lead citizens to "'steer far wider
of the unlawful zone' • • • than if the boundaries of the
forbidden areas were clearly marked."
On this record, it must be found that FMC had no warning of
what constituted the conduct the Secretary contends was prohibited; FMC's contest of that aspect of the Citation charging
improper, excessive cable length is found meritorious.
ORDER
Based on the foregoing findings and conclusions, FMC's
contest is found to be meritorious in part. That part of Part
"a" Citation No. 2009928 alleging an infraction of the manufacturer's approved design specification No. 2G2431A-2 because of
excessive trailing cable lengths is vacated. That part of Part
"a" of the Citation alleging non-compliance with 30 C.F.R. 18.35(a)(S) (ii) and a resultant violation of 30 C.F.R. 57.21-78,
consisting of the first 3 paragraphs of the Citation and pertaining to the trip setting of the miner's short-circuit protection
device, is affirmed.

/.};~,("' d~~-</Z-~-·

iiichael A. Lasher, Jr.
Administrative Law Judge

640

D

tribution:

James H. Barkley, Esq., and Margaret A. Miller, Esq., Office of
the Solicitor, U.S. Department of Labor, 1585 Federal Building,
1961 Stout Street, Denver, CO 80294 (Certified Mail)
John A. Snow, Esq., James A. Holtkamp, Esq~, and Matthew F.
McNulty, III, Esq., Vancott, Bagley, Cornwall and McCarthy, 50
Main Street, Suite 1600, Salt Lake City, UT 84110 (Certified
Mail)

/blc

641

s.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, O.C. 20006

April 24, 1986

A. D. BRACKEN,

DISCRIMINATION PROCEEDING

Complainant

Docket No. CENT 85-132-D

v•

MADI CD 85-10

ALPINE CONSTRUCTION COMPANY,
Respondent
ORDER
Before:

F DISMI

AL

Judge Merlin

The Complainant has sent a letter to the Commission, dated
March 18, 1986, stating that unless an impartial special
investigator can be assigned to the case, who does not know him
or the other parties, he does not want to pursue this matter any
further.
This Commission has no authority to assign a special investigator to this case or to undertake its own initial investigations
of discrimination complaints. This responsibility is the
Secretary of Labor's.
In accordance with the Complainant's letter therefore, this
case is DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
A. D. Bracken, Box 89, Stigler, OK 74462

(Certified Mail)

Mr. Leon ~urns, Alpine Construction Co., P. 0. Box 339, Stigler,
OK 74462 (Certified Mail)
I g1

642

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

DAVID RATLIFF,
Complainant

22041

April 2 8 / 1986

DISCRIMINATION PROCEEDING
Docket No. KENT 85-108-D

v.
PIKE CD 85-05
BETHENERGY MINES, INC.,
Respondent
DECISION
Before:

Judge Fauver

This proceeding has been docketed as a claim for relief
under the discrimination provisions (section 105(c)) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801,
et seq.
On March 25, 1986, Respondent moved to dismiss the
Complaint on the grounds (1) that Complainant has not stated
a claim for relief which can be granted under the Act, and
(2) that Complainant has failed to comply with the prehearing
requirements of the notice of hearing.
The complaint alleges that Respondent failed to grant
Complainant a second exercise of super-seniority rights,
to return from layoff, under a collective bargaining
agreement between Respondent and the United Mine Workers of
America.
Complainant has not responded to the motion to dismiss
nor has Complainant filed a prehearing submission, which was
due on March 26, 1986.
On April 3, 1986, a Show Cause Order was issued to
Complainant, allowing him until April 21, 1986, to show
cause, in writing, why this case .should not be dismissed:
(1)

lure to state a claim for which
can be granted under the Act;
and

(2)

failure to comply with the
prehearing requirements of the
Notice of Hearing {Hearing Term
dated January 15, 1986).

643

Complainant has not responded to the Show Cause Order.
I conclude that the Motion to Dismiss should be granted,
on the ground that the Complainant fails to state a claim
for which relief can be granted under section lOS(c) of the
Act.
ORDER
WHEREFORE IT IS ORDERED that the Motion to Dismiss is
GRANTED, and this proceeding is DISMISSED.

~~a~

Administrative Law Judge

Distribution:
Mr. David Ratliff, Box 192, Elkhorn City, KY 41522
Mail)

(Certified

Michael T. Heenan, Esq., Smith, Heenan & Althen, 1110 Vermont
Avenue, N.W., Washington, DC 20005 (Certified Mail)
Beth Elkhorn Corporation, Box 232, Jenkins, KY 41537 (Certified
Mail)
kg

644

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

April 28, 1986

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

..

Docket No. WEVA 82-152-R
WEVA 82-369

v.
:

WESTMORELAND COAL COMPANY
PETITION FOR RECONSIDERATION
The recent decision of this Commission to reduce the
civil penalty in the captioned case is based on an erroneous
interpretation of the intent of the undersigned in use of the
words "gross negligence" and "negligence". Accordingly the
Commission's legal conclusion that the undersigned thereby
believed that the operator's negligence was somehow lessened
is totally erroneous and reconsideration under the circumstances would be appropriate.
Although this Commission reversed the "unwarrantable
failure" findings in the original decision of the undersigned
the factual findings underlying the operator's negligence
were not modified in any way.
The use of the words "gross
negligence" in that decision, 5 FMSHRC 132 (January 1983)
CALJ), and the use of the word "negligence" in the decision
following remand, 7 FMSHRC 1647 (October 1985) CALJ), concerning the same factual circumstances did not in any way
reflect on my part a belief that there was any lesser
negligence.
The facts remain the same and had I known the
Commission would have drawn any inference from the noted
terminology I would have again used the phrase "gross
negligence" to characterize the high degree of negligence
found in this case, for indeed it is my firm belief that the
facts of this case demonstrate the highest degree of
negligence. This Commission of course has the authority to
reduce the civil penalty in this case but such a reduction
cannot be based upon any finding of lesser egligence by the
undersigned because no such finding has eve been made.

645

Distribution:
John A. Macleod, Esq., Crowell & Moring, 1100 Connecticut
Ave., N.W., Washington, DC 20036 (Certified Mail)
Barry Wisor, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
Scott L. Messmore, Esq., Westmoreland Coal Company, P.O.
Drawer A & B, Big Stone Gap, VA 24219 (Certified Mail)
rbg

646

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

April 28, 1986
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF
KEVIN L. SMITH,
Complainant

Docket No. WEVA 86-69-D
MORG CD 85-20

v.

Loveridge No. 22 Mine

CONSOLIDATION COAL COMPANY,
Respondent
ORDER OF DISMISSAL
Before:

Judge Kennedy

Complainant having failed to file his complaint as
allowed by the order of March 11,
86, it is ORDERED
that the captioned matter be, an
ereby is, DISM SSED.

Joseph B. Kennedy
Administrative Law
Distribution:
Catherine Oliver-Murphy, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
Mr. Kevin L. Smith, 701 Oliver Avenue, Fairmont, WV 26554
(Certified Mail)
Steven P. McGowan, Esq., Steptoe & Johnson, 715 Charleston
National Plaza, P. 0. Box 1588, Charleston, WV 25326
(Certified Mail)
dcp

647

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO

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

Apr i 1 3 0 1 19 8 6
CIVIL PENALTY PROCEEDING

80204

Docket No. WEST 85-34
A.C. No. 05-00469-03550

v.

Dutch Creek No. 2 Mine

MID-CONTINENT RESOURCES, INC.,
Respondent
DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Edward Mulhall, Jr., Esq., Delaney & Balcomb,
Glenwood Springs, Colorado,
for Respondent.

Before:

Judge Carlson

This case, heard under the provisions of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the Act),
arose out of an inspection at an underground coal mine operated
by respondent Mid-Continent Resources, Inc. {Mid-Continent) near
Redstone, Colorado. On August 23, 1984, Larry Ganser, a coal
mine inspector employed by the Secretary of Labor, issued two
citations to Mid-Continent in which he alleged violations of mine
safety standards promulgated by the Secretary under the Act.
In
the present proceeding the Secretary seeks to collect substantial
civil penalties as the result of the alleged violations. At the
evidentiary hearing held in Denver, Colorado, both parties presented evidence. The parties waived the filing of briefs or other
post-hearing submissions.
REVIEW AND DISCUSSION OF THE EVIDENCE
Citation No. 2213222
On the morning of August 23, 1984, Larry Ganser, a federal
coal mine inspector, inspected the 204 headgate section of MidContinent' s Dutch Creek No. 2 Mine. While there, he observed
a continuous mining machine inby the last open crosscut. The
machine was withdrawn from the face and was not engaged in mining.
A 550-volt trailing cable furnished power to the machine. When
the inspector looked at the cable he noted that its outer jacket
had been cut away where it entered the "stuffing box" and was connected to the machine. According to the inspector, the absence
of the outer jacket diminished the circumference of the cable to
the extent that air could freely enter and exit the box in which
energized wires in the cable were connected to the machine.

648

This condition, the inspector believed, violated the mandatory
safety standard published at 29 C.F.R. § 75.503. That standard,
at the time of the alleged violation, provided as follows:
The operator of each coal mine shall
maintain in permissible condition all
electric face equipment required by
§§ 75.500, 75.501, 75.504 to be permissible which is taken into or used
inby the last open crosscut of any
such mine.
The machine was not in "permissible" condition, the inspector
maintained, because the opening around the cable allowed the free
exchange of atmosphere between the inside and outside of the box.
A "permissible box," he testified, must be able to contain any explosion of a gassy atmosphere within the confines of the box.
Through its answer, Mid-Continent confessed the existence of
the violation.
It contested, however, the Secretary's characterization of the violation as "significant and substantial," and disputed the reasonableness of the proposed penalty of $900.00.
In penalty assessments, Section·llO(i) of the Act requires
the Commission to consider the operator's size, its negligence,
its good faith in seeking rapid compliance, its history of prior
violations, the effect of a monetary penalty on its ability to remain in business, and the gravity of the violation itself.
The parties stipulated that Mid-Continent's mines in the
Redstone, Colorado area produced a total of 743,844 tons of coal
in the year in question, of which 463,504 tons came
Dutch
Creek No. 2. Th€y further stipulated that Dutch Creek No. 2 employed approximately 135 miners, with all mines employing about 350.
From these facts I must conclude that the size of the mining enterprise was large.
The parties further stipulated that Mid-Continent abated the
violation in good faith, and that payment of the propc
penalty
would not impair its ability to continue in business.
The evidence shows that Mid-Continent knew or should have
known that the violat
condition existed. The cut-away portion
of the cable was clearly visible to anyone who approached the box
and looked. Moreover, Mid-Continent's face boss at the area in
question acknowledged that the cable was an inch larger than was
customary. Therefore, someone had to "trim it down" to get it
into the box (Tr. 137). In other words, the defective cond ion
was not the result of an unnoticed accident or of a gradual deteriorat n which could perhaps have been overlooked.

649

The record contains exhaustive evidence of Mid-Continent's
history of prior violations under the Act. Through its safety
director, Mid-Continent introduced a series of computerized lists
of citations grouped in various ways (respondent's exhibits 5
through 18-a}. The accuracy of these records was not challenged.
No useful purpose would be served in summarizing the many pages
of these records here. It is enough to say that during the two
years prior to the instant citation, Mid-Continent received
numerous citations. On the other hand, one must recognize that
the Dutch Creek No. 2 operation is classified as a gassy mine;
it therefore undergoes nearly constant federal inspection. This
fact, coupled with the mine's large size, tends to mitigate the
impact of the mere numbers of violations.
We now consider the gravity of the violation. Mid-Continent
acknowledges that Dutch Creek No. 2 is properly classified as a
"gassy mine" under the numerous regulations that deal with that
concept. Nor
disputed that the opening around the trimmed
trailing cable where it entered the box on the mining machine
caused the box tu lose its "explosion-proof" character and thus
rob the machine of its "permissible" approval. Inspector Ganser
testified that should an explosion occur because of the unprotected electrical connection, three miners would have been endangered at the time of inspection: the miner operator, his
helper, and a shuttle car operator. Five or six miners would
have been in the vicinity had mining actually been in progress,
he testified.
The inspector tested for methane presence at the face. He
found a concentration of four-tenths of one percent. Under the
standards, mining may take place at levels under one percent. The
inspector tes
ied without contradiction that the mine atmosphere
becomes explos
when the methane concentration reaches f
percent.
He acknowledged that the continuous mining machine was
equipped with a methane monitor designed to alarm when the concentration
one percent. The device also automat
lly
deac
the machine when the methane level reaches two percent.
The
tor maintained that the shutdown mechanism would not
affect the hazard created by the lack of an explosion-proof box,
however,
se he did not believe that it would de-energize
the cable itself. John Jerome, the face boss, testified to
the
however. He asserted that the shutdown dev e
1
de-energized the machine totally, all the way back to the power
center. I f
that Jerome was familiar with the machine and
credit his testimony on this issue. Donald E. Ford, the
's
safety d
tor, testified that gas studies in the double entry
in question here showed relatively low rates of methane liberation
for a gassy
Readings, he declared, had generally varied from
three-tenths to five-tenths of one percent. Occasionally, readings
were as high as eight-tenths of one percent. Immediately
natural shifts in the mine strata, described as "bumps" and
"bounces," levels as high as one or two percent were recorded.

650

Mid-Continent suggests that the presence of the alarm made
the possibility of a methane-fueled explosion and fire unlikely,
and that the $900.00 penalty proposal is excessive.
The Secretary's position is that violations such as the
present one, which increase the risk of an unconfined electrical
spark in a gassy mine, are always serious. Whatever the immediate level of methane, the known possibility of methane releases,
together with the inevitable presence of some amounts of coal dust
(excessive or not), makes for a potentially lethal situation. This
is so, the Secretary contends, even with the presence of methane
alarms or automatic shutdown devices.
The inspector's assessment of the danger took into account
thnt his reading of air flow near the face was only about half of
what was required by the mine's ventilation plan when mining was
in progress. Although mining had ceased by the time he arrived,
he inferred that the insufficient flows existed when mining was in
progress. He reasoned that the diminished flows allowed greater
concentrations of methane and coal dust near the face, since the
gas and dust generated there would not be diluted by the required
large volumes of moving air.
The ventilation issue was directly raised by the inspector in
the second citation tried in this case, number 2213223. As will
be seen in the discussion of that citation, I found that no violation of the mine's ventilation plan was proved. It follows that
a lack of proper ventilation should not considered as an aggravating
factor in determining the gravity of the present violation.
Moreover, I must conclude that the presence of a methane alarm
and shutdown device did tend to reduce the possibility of an explosion. The safety director's recitation of the history of low
levels of methane release for the
in question is less impressive.
It is scarcely prudent to assume that greater amounts
of methane will not be released with the next mining advance. Moreover, that witness admitted that bumps and bounces sometimes occur
in the mine, causing release of methane to a two-percent level.
The witness did not claim, of course, that
was able to forecast
the times when these phenomena may occur.
Overall, I must also conclude that the evidence establishes
the gravity of the vio
ion to be moderate-to-high. No condition
which
ives a piece of electric face equipment of its permissibility in a gassy mine can be taken lightly. The standards insist
upon multip
precautions in underground coal mines - particularly
gas
mines - because of the potentially disasterous consequences
of fire or explosion. One simply cannot reason, for example, that
if methane control and coal dust suppression measures are well
maintained, that one can be casual about safeguards against ignition
sources. The standards and common sense demand that all mandatory
precautions against explosions and fire be scrupulously observed.

651

Having weighed all the statutory penalty elements discussed
above, I conclude that $600.00 is the appropriate civil penalty.
The Secretary's citation characterized the violation as
"significant and substantial" under section 104{d) of the Act.
In Cement Division, National Gypsum Company, 3 FMSHRC 822 {1981),
the Commission defined such a violation as one where" .•• there
exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature."
Doubtless, had an explosion or fire occurred, the likely injuries
to miners would have been severe. That an explosion would occur
was not probable, certainly, but was reasonably possible. The
violation furnished a ready ignition source. Had this been combined with an untimely failure of face ventilation or some other
failure in coal dust or methane control, the basic ingredients for
a disaster would have been at hand.
In this regard, the facts
discussed in connection with the other citation in this case are
instructive. Those facts were insufficient to establish the violation charged because the unplanned disruption in ventilation
which occurred was not proved to have happened during mining.
(As mentioned earlier, mining generates coal dust and may liberate
methane.)
They were sufficient to illustrate, however, that accidental disruption of ventilation can take place in the mine in
question. That the accident took place when no mining was in progress was mere fortuity.
The Secretary correctly classified the
present violation as "significant and substantial."
Citation No. 2213223
This citation was written by Inspector Ganser in the 204 headgate section on the same morning as the permissible face equipment
citation. 1/ It is undisputed that the inspector took a measurement
of a
flow at the face which showed 11,190 cubic feet per minute.
It is also undisputed that Mid-Continent's approved ventilation
plan
ed for minimum quantity of 20,000 cubic
per minute of
air
development sections during the cutting, mining or loading of
coal (respondent's exhibit 1, section 6.2}. The inspector believed
that his reading showed that Mid-Continent was violating this provision. He therefore cited the operator for violation of the mandatory standard published at 30 C.F.R. § 75.316, which provides:
A ventilation system and methane and dust
control plan and revis
thereof suitable
to the conditions and the mining system of
the coal mine and approved by the Secretary
shall be adopted by the operator and set out
in printed form on or before June 28, 1970.
The plan shall show the type and location of
mechanical ventilation equipment installed

1/ Midway through the hearing Mid-Continent was allowed to amend
its answer to show that it contested the alleged violation.
Its
intention to oppose the violation was plain, and the Secretary did
not appear prejudiced by the amendment.
652

and operated in the mine, such additional
or improved equipment as the Secretary
may require, the quantity and velocity
of air reaching each working face, and
such other information as the Secretary
may require.
Such plan shall be reviewed
by the operator and the Secretary at least
every six months.
The inspector admitted that at the time he made his inspection
and took his reading, coal was being neither cut, mined, nor loaded.
The real issue to be decided, then, is whether the evidence justifies
a reasonable inference that the air flow was below 20,000 cubic feet
per minute earlier on the morning of the inspection when mining was
admittedly in progress. For the reasons which follow I conclude that
the established facts do not adequately support such an inference.
The inspector testified that he arrived at the area in question
at about 10:05 a.m. or 10:10 a.m. and wrote the ventilation citation
at about 10:45 a.m. (Tr. 45, 73, 95). He acknowledged that the next
step in the mining cycle would have been roof bolting. For roof
bolting, the record shows, the ventilation plan requires but 3,000
cubic feet per minute of air (Tr. 96-99, respondent's exhibit 1,
section 6.8).
The inspector assumed, without being certain, that the morning
shift had reported to work at 8:00 a.m. He professed a certainty
that the mining had ceased only a short time after he had arrived.
He found coal dust in the air, he said, and the area was still wet
from the spray emanating from the continuous mining machine during
cutting. Beyond that, and most important, he maintained that the
air flow volume present at inspection could not have decreased from
the 20,000 cfm level to 10,190 cfm in the short time since mining
had ceased. He did not claim firsthand knowledge of the cause of
the decrease in air, but reasoned that since it took from 10:45 a.m.
to 12:15 p.m. to bring the volume back up to the 20,000 level, the
problem was a major one.
He admitted having been told by a management official that the problem was caused by a check curtain having
been knocked down elsewhere in the air course. The inspector rejected that explanation, however, because in his opinion a section
of curtain could have been replaced in 15 minutes; it would not
have taken an hour and a half.
Mid-Continent's principal witness disagreed with most of the
inspector's premises. Mr. Jerome, the face boss, testified that the
shift had started at 7:00 a.m., not 8:00 a.m. He agreed that the
face had been advanced about 15 feet that morning, but he insisted
he had done the required pre-shift readings and found the air-flow
to have been 23,000 cfm. He estimated that mining had ceased at
'least 15 minutes before the inspector arrived.
(More time - at least
a half an hour - elapsed before the inspector took his air flow
reading.)

653

According to Jerome, he sent a crew of three men to check out
the stoppings along the entryway. At about 1500 feet outby the inspection area they found that an airlock curtain had been knocked
down by a trailer carrying longwall shields to a separate area of
the mine. Jerome ordered a second curtain hung there to repair the
leak.
Restoration of the airlock returned full ventilation to the
face, the witness testified.
I find Mid-Continent's explanation of the reduced air at the
face plausible. A large diversion of air from the prescribed air
course would likely cause a fairly rapid decline in air flow at the
face.
Clearly, displacement of the airlock would tend to create a
large diversion. The evidence does not disclose the time at which
the trailer knocked down the curtain. Under proper circumstances,
one may indeed infer a present condition existed at a time past.
In this case, however, the inspector's conclusions are simply too
speculative to constitute a convincing set of proofs. The burden
of proof on the issue of violation rests upon the Secretary. He
did not susta
that burden because he did not effectively negate
the possibility that the air at the face remained at the prescribed
volume until after mining had ceased.
One more matter deserves comment. The inspector and the face
boss differed rather heatedly over whether the crew at the face had
set a timber and extended the line curtain to it after the face was
advanced. Mr. Jerome insisted that this was done, and that it is
significant because he took a satisfactory air reading at the place
where the curtain was "winged out" to better sweep the face with
air.
It was undisputed that the timber could not have been set until
mining and loading had ceased because the timber would have interfered with the use of the face equipment (Tr. 133-135). Inspector
Ganser, however, was certain that the line curtain was not extended
when he took his own readings (Tr. 199). He was certain, he said,
because the change in the configuration of the curtain would have
yielded different measurements than those he got when he calculated
the area at the mouth of the line curtain - an integral step in
determining the air flow.
I find no reason to question the fundamental truthfulness of
either witness, despite the irreconcilable difference in their testimony.
I must therefore attribute that difference to a failure in
accurate recall on the part of one witness or the other. I have not
attempted to resolve the matter because if Jerome were declared wrong
and the inspector correct, the result would not be changed. If,
indeed, a reading showing a 20,000 cfm flow was taken by Mid-Continent
after the mining ceased, it would be compelling evidence that there
was no violation.
If, on the other hand, such a measurement was not
taken, or if it was taken and found to be less than 20,000 cfm, such
facts would not add substantial weight to the Secretary's case.
They do not bear directly on the essential question: the level of
air flow during cutting, mining or loading.
The citation will be vacated.

654

CONCLUSIONS OF LAW
Based upon the entire record herein, and in accordance with
the factual determinations contained in the narrative portion of
this decision, the following conclusions of law are made:
(1)

The Commission has jurisdiction to decide this matter.

(2)
The respondent, Mid-Continent, admits violation of the
mandatory safety standard published at 30 C.F.R. § 75.503, as
alleged in citation number 2213222.
{3)
The violation was "significant and substantial" within
the meaning of section 104(d) of the Act.
(4)
$600.00.

The appropriate civil penalty for the violation is

(5) Mid-Continent did not violate the mandatory safety
standard published at 30 C.F.R. § 75.316, as alleged in citation
number 2213223.
ORDER
Accordingly, citation number 2213222 is ORDERED affirmed; a
civil penalty of $600.00 is ORDERED assessed therefor, to be paid
within 30 days of the date of this decision; and citation number
2213223 is ORDERED vacated.

John A. Carlson
Administrative Law Judge
Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department of
Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado
80294
(Certified Mail)
Edward Mulhall, Jr., Esq., Delaney & Balcomb, P.O. Drawer 790,
818 Colorado Avenue, Glenwood Springs, Colorado 81602
(Certified
Mail)

/ot

655