APRIL 2002

COMMISSION DECISION AND ORDERS

04-29-2002 Rodney Woodruffv. Hollinger Construction
04-30-2002 Mission Valley Rock Company
04-30-2002 Catenary Coal Company
04-30-2002 Leeco, Inc.
04-30-2002 Kilauea Crusher, Inc.
04-30-2002 Wedron Silica
04-30-2002 Sec. Labor on behalf of Andrew Garcia
v. Colorado Lava, Incorporated

WEST 2002-163-D
WEST 2001-618-M
WEVA 2002-47
KENT 2002-38
WEST 2002-58-M
LAKE 2002-18-M

Pg.327
Pg.330
Pg.334
Pg.338
Pg. 342
Pg.346

WEST 2001-14-DM

Pg. 350

KENT 2001-129

Pg.365

VA

Pg.376

ADMINISTRATIVE LAW JUDGE DECISIONS

04-09-2002 Left Fork Mining, Inc.
04-12-2002 Sec. Labor on behalf of William D. Griffitts
v. Coalfield Services, Inc.
04-16-2002 Sec. Labor on behalf of Randy Lee Bennett
v. Smasal Aggregates
04-.16-2002 Read Sand & Gravel
04-19-2002 Sec. Labor on behalf of Donnie Lee Lowe
v. Island Creek Coal Company
04-22-2002 Mike Fletcher v. Morrill Asphalt Paving
04-29-2002 Darwin Stratton & Son, Inc.

2002-32-D

WEST 2002-292-DM Pg. 381
YORK 2001-65-M
Pg. 389
VA 2001-24-D
Pg. 392
WEST 2001-150-DM Pg. 401
WEST 2001-528-M Pg. 403

ADMINISTRATIVE LAW JUDGE ORDER

04-18-2002 CDK Contracting Company

WEST 2001-420-RM Pg. 413

i

.

I

APRIL2002

~eview was granted in the following case during the month of April:

Secretary of Labor, MSHA v. Western Industrial, Inc., Docket No. WEST 2001-473-RM.
(Judge Weisberger, March 1, 2002)

Review was denied in the following case during the month of April:
Daniel Hernandez v. Asarco Incorporated, Docket No. WEST 2001-308-DM.
(Judge Bulluck, March 20, 2002)

ii

COMMISSION DEQSIONS AND ORDERS

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

April 29, 2002

RODNEY WOODRUFF

v.

Docket No. WEST 2002-163-D

HOLLINGER CONSTRUCTION

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

ORDER
BY: Verheggen, Chairman; Jordan and Beatty, Commissioners
This discrimination proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On March 26, 2002, Chief Administrative
Law Judge David F. Barbour issued an Order ofDismissal 1 dismissing this discrimination
proceeding because Rodney Woodruff failed to respond to a show cause order the judge issued
on February 20, 2002. Woodruff allegedly failed to provide the judge with proof of his service to
the operator of his discrimination complaint, as required in the show cause order.
On April 4, 2002, the Commission received from Woodruff a request to vacate the
judge's dismissal order. Mot. In his request, Woodruff contends that he responded to the show
cause order by sending the judge the return receipt card showing that he had notified the operator
of his discrimination complaint. Id. Woodruff attached two copies of the return receipt card to
his request. Id., attachment. He maintains that the return receipt card he sent in response to the
show cause order was either lost in the mail or was misplaced after delivery at the Commission.
Id.

1

On Apri l 17, 2002, the j udge issued a Corrected Order of Dismissal amending a minor
clerical error in the original dismissal order.
327

The judge's jurisdiction in this matter terminated when his decision was issued on March
26, 2002. 29 C.F.R. § 2700.69(b). Relief from a judge' s decision may be sought by filing a
petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). We deem Woodruffs request to be a timely filed petition for discretionary review,
which we grant. See, e.g ., Middle States Res., Inc., l 0 FMSHRC 1130 (Sept. 1988).
We have observed that default is a harsh remedy and that, if the defaulting party can make
a showing of adequate or good cause for a failure to respond to an order, the failure may be
excused and proceedings on the merits permitted. Mohave Concrete & Materials, Inc., 8
FMSHRC 1646, 1647 (Nov. 1986). On the basis of the present record, however, we are unable
to evaluate the merits ofWoodruffs position. In particular, we note that, although Woodruff
attached to his request copies of the return receipt card showing that he had notified the operator
of his discrimination complaint, he did not provide any documentary support for his assertion
that he mailed the return receipt card to the Commission in response to the show cause order.
Accordingly, in the interest of justice, we vacate the dismissal order and remand this matter to
the judge, who shall determine whether relief from dismissal is warranted. See Dunkard Mining
Co., 17 FMSHRC 497, 497-98 (Apr. 1995) (vacating default order and remanding to judge where
operator alleged that it responded to show cause order but its response was not received by
Commission). If the judge determines that relief is appropriate, the case shall proceed pursuant
to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Theodore F. Verheggen, Chairm

,ilJ _7-:_ :ez:-;z_
..........
--:.~..:.:.:...::...;..:.:..~~~~~~~~

Robert H. Beatty, Jr., Commissioner

328

Distribution
Rodney Woodruff
P.O. Box 196
Centralia, WA 98531
Hollinger Construction
1061 Industrial Way
Longview, WA 98632
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

329

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

April 30, 2002

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 2001-618-M
A.C. No. 04-01859-05547

v.
MISSION VALLEY ROCK COMPANY

BEFORE: Verheggen, Chainnan; Jordan and Beatty, Commissioners

ORDER

BY: Jordan and Beatty, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On September 28, 2001, the Commission received from
Mission Valley Rock Company ("Mission Valley") a request to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).

In its request, Mission Valley, apparently proceeding pro se, contends that it sent in a
proposed assessment fonn ("green card") requesting a hearing on the proposed penalties
regarding Citation Nos. 07998009 and 07998011. Mot. It also asserts that it sent in a check for
those proposed penalties that were not in dispute. Id. Mission Valley did not indicate when or to
whom it sent the green card or the check. Id. It contends that only the check but not the green
card "reached its proper destination." Id. It further asserts that it subsequently received a letter
from the Civil Penalty Compliance Office of the Department of Labor's Mine Safety and Health

330

Administration ("MSHA") stating that it had failed to fully pay the penalty·assessments. Id.
Mission Valley did not attach any documents to its request in support of its position.
We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final under section 105(a). Jim Walter Res., Inc., 15
FMSHRC 782, 786-89 (May 1993) ("JWR"); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932
(Sept. 1994). We have also observed that default is a harsh remedy and that, if the defaulting
party can make a showing of adequate or good cause for the failure to timely respond, the case
may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs.,
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening final orders, the Commission has
found guidance in, and has applied "so far as practicable," Fed. R. Civ. P. 60(b). See 29 C.F.R.
§ 2700. l(b) ("the Commission and its judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. In accordance with Rule 60(b)(l), we
previously have afforded a party relief from a final order of the Commission on the basis of
inadvertence or mistake. See Gen. Chem. Corp., ~ 8 FMSHRC 704, 705 (May 1996); Kinross
Delamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996); Stillwater Mining Co., 19
FMSHRC 1021, 1022-23 (June 1997).
On the basis of the present record, however, we are unable to evaluate the merits of
Mission Valley's position. In the interest ofjustice, we remand the matter for assignment to a
judge to determine whether relief from the final order is appropriate. See H & D Coal Co., 23
FMSHRC 382, 382-84 (Apr. 2001) (remanding to a judge where operator alleged that it sent a
hearing request to MSHA, but MSHA did not receive the request); Missoula County Rd. Dep 't,
23 FMSHRC 369, 369-72 (Apr. 2001) (same). If the judge determines that such relief is
appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural
Rules, 29 C.F.R. Part 2700.

Robert H. ~.
... eatty, Jr., Commissioner

331

Chainnan Verheggen, dissenting:
I would grant Mission Valley's request for relief. First, I note that the Secretary does not
oppose the operator's motion. I also note that the operator is proceeding prose, and the
Commission has always held the pleadings of pro se litigants to less stringent standards than
pleadings drafted by attorneys. Marin v. Asarco, Inc., 14 FMSHRC 1269, 1273 (Aug. 1992)
(citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). Nor do I find any other circumstances that
would render a grant of relief here problematic. Under these circumstances, I thus fail to see the
need for or utility of remanding this matter.

Theodore F. Verheggen, Chai

332

Distribution
M. J. Marchetti, Safety Manager
Mission Valley Rock Company
7999 Athenour Way
Sunol, CA 94586
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W. , Suite 600
Washington, D.C. 20006

333

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

April 30, 2002

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 2002-47
A.C. No. 46-07178-03571

v.
CATENARY COAL COMP ANY

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

ORDER

BY: THE COMMISSION
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On February 25, 2002, the Commission received from
Catenary Coal Company ("Catenary") a motion made by counsel to reopen a penalty assessment
that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In its motion, Catenary contends that on October 18, 2001, it received a proposed penalty
assessment relating to Citation Nos. 7185826-27 and 7185845-48. Mot. at 1. It asserts that on
October 24, 2001, its safety manager, Terry Tolley, mailed a request for a hearing ("green card")
relating to the penalties for these citations. Id. at 1-2; Ex. I. Catenary received a delinquency
letter, dated January 28, 2002, from the Department of Labor's Mine Safety and Health
Administration ("MSHA") stating that Catenary's green card had not been received by MSHA

334

until January 10, 2002. Mot. at 1-2; Ex. 2. The delinquency letter stated that, as a consequence
of the untimely filing of the green card, the proposed penalty assessment had become a final
order of the Commission. Ex. 2. Catenary states that it does not know why receipt of the green
card by MSHA was delayed. Mot. at 1. Attached to Catenary' s request is a signed affidavit by
Tolley supporting its allegations. Ex. I.
We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final under section 105(a). Jim Walter Res., Inc. , 15
FMSHRC 782, 786-89(May1993) ("JWR"); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932
(Sept. 1994). We have also observed that default is a harsh remedy and that, ifthe defaulting
party can make a showing of adequate or good cause for the failure to timely respond, the case
may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs.,
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening final orders, the Commission has
found guidance in, and has applied "so far as practicable," Fed. R. Civ. P. 60(b). See 29 C.F.R.
§ 2700. l (b) ("the Commission and its judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. In accordance with Rule 60(b)(1 ), we
previously have afforded a party relief from a final order of the Commission on the basis of
inadvertence or mistake. See Gen. Chem. Corp., 18 FMSHRC 704, 705 (May 1996); Kinross
Delamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996); Stillwater Mining Co., 19
FMSHRC 1021, 1022-23 (June 1997).
The record indicates that Catenary intended to contest the proposed penalties, and that it
mailed its request for a hearing to MSHA within the 30-day time limit. See Ex. 1 (Tolley
Affidavit). The affidavit attached to Catenary' s motion is sufficiently reliable and supports the
company's allegations. Id. In the circumstances presented here, we find Catenary's failure to
timely file its hearing request with MSHA due to inadvertence or mistake within the meaning of
Rule 60(b)(l). See Chantilly Crushed Stone, Inc., 22 FMSHRC 17, 17-19 (Jan. 2000) (granting
operator's motion to reopen where order became final because green card received late by
MSHA, but where operator believed it timely mailed green card and its allegations were
supported by affidavit).

335

Accordingly, in the interest of justice, we grant Catenary's unopposed request for relief to
reopen the penalty assessment that became a final order with respect to Citation Nos. 7185826-27
and 7185845-48. We remand this matter to the Chief Administrative Law Judge for assignment
to a judge. On remand, this case shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F.R. Part 2700.

Theodore F. Verheggen, Chairm

Robert H. Beatty, Jr., Commissioner

336

Distribution
Anne Wathen O'Donnell, Esq.
Arch Coal, Inc.
CityPlace One, Suite 300
St. Louis, MO 63141
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

337

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

April 30, 2002

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2002-38
A.C. No. 15-18022-03534

v.
LEECO, INC.

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On November 2, 2001, the Commission received from Leeco,
Inc. ("Leeco") a motion made by counsel to reopen a penalty assessment that had become a final
order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. Id.

338

In its request, Leeco, 1 through counsel, asserts that the proposed penalty assessment was
marked as having been received by the operator on August 21 , 2001. Mot. at 1. It contends that
Andy Fields, Blue Diamond's safety manager, mistakenly filed the green card past the 30-day
deadline because he miscalculated the return deadline as September 21, 2001, believing that to be
thirty days after the date of receipt, August 21 , 2001. Id. at 1-2. Leeco attached to its request a
signed affidavit by Fields supporting its assertion that it filed the green card past the 30-day
deadline due to an inadvertent miscalculation of the required return date. Id. , attachment. It also
attached to its request a copy of the proposed penalty assessment stamped as having been
received by the operator on August 21 , 2001 . Id. In addition, it attached a copy of a delinquency
letter from the Department of Labor's Mine Safety and Health Administration which states, as
Leeco notes in its request, that the proposed penalty assessment was received by the operator on
August 20, 2001. Id.

We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final under section 105(a). Jim Walter Res., Inc., 15
FMSHRC 782, 786-89 (May 1993) ("JWR" ); Rocky Hollow Coal Co. , 16 FMSHRC 1931 , 1932
(Sept. 1994). We have also observed that default is a harsh remedy and that, if the defaulting
party can make a showing of adequate or good cause for the failure to timely respond, the case
may be reopened and appropliate proceedings on the melits permitted. See Coal Prep. Servs.,
Inc. , 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening final orders, the Commission has
found guidance in, and has applied "so far as practicable," Fed. R. Civ. P. 60(b). See 29 C.F.R. §
2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. In accordance with Rule 60(b)(l), we
previously have afforded a party relief from a final order of the Commission on the basis of
inadvertence or mistake. See Gen. Chem. Corp., 18 FMSHRC 704, 705 (May 1996); Kinross
DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996); Stillwater Mining Co., 19
FMSHRC 1021, 1022-23 (June 1997).
The record indicates that Leeco intended to contest the proposed penalty assessment, but
that it failed to do so in a timely manner due to an internal oversight. The affidavit attached to
Leeco's request is sufficiently reliable and supports its allegations.2 In the circumstances
presented here, we treat Leeco 's late filing of a hearing request as resulting from inadvertence or

1

Leeco states that it was operating the mine at the time the citation (Citation No.
7507813) relating to the penalty assessment was issued but that mine operations were
subsequently transferred to Blue Diamond Coal Company ("Blue Diamond"), an affiliate of
Leeco. Mot. at 1 n. l. On August 15, 2001, a proposed penalty assessment relating to the citation
was issued to Blue Diamond, "A/K/A LEECO INC" by the Department of Labor's Mine Safety
and Health Administration ("MSHA"). Id. , attachment.
2

We note the confusion in the record over whether the operator received the proposed
penalty assessment on August 20 or August 21, 2001, but determine that it does not significantly
detract from the operator's allegations.
339

mistake. See 46 Sand & Stone, 23 FMSHRC 1091, 1091-93 (Oct. 2001) (granting operator's
request to reopen where operator alleged its failure to timely request a hearing was due to internal
processing error and operator's assertions were supported by affidavit); Heartland Cement Co.,
23 FMSHRC 1017, 1017-19 (Sept. 2001) (same).
Accordingly, in the interest ofjustice, we grant Leeco's request for relief, reopen the
penalty assessment that became a final order with respect to Citation No. 7507813, and remand
to the judge for further proceedings on the merits. The case shall proceed pursuant to the Mine
Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Theodore F. Verheggen, Chairm

..

·'"=·· ,'d ? ~

z

Robert H. Beatty, Jr., Commissioner

340

Distribution
Marco M. Rajkovich, Jr., Esq.
Melanie J. Kilpatrick, Esq.
Wyatt, Tarrant & Combs, LLP
1700 Lexington Financial Center
250 West Main Street
Lexington, KY 40507
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

341

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

April 30, 2002

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

v.

Docket No. WEST 2002-58-M
A.C. No. 02-02479-05535

KILAUEA CRUSHER, INC.

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§ 801 et seq. (1994) ("Mine Act"). On November 21, 2001, the Commission received from
Kilauea Crusher, Inc. ("Kilauea") a request to reopen a penalty assessment that had become a
final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
The Secretary of Labor does not oppose Kilauea's request for relief.
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary's proposed penalty assessment within which to notify the Secretary that it wishes to
contest the proposed penalty. If the operator fails to notify the Secretary, the proposed penalty
assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).

In the request, Kilauea, which is represented by counsel, asserts that its failure to timely
submit a hearing request on the proposed penalty assessment to the Department of Labor's Mine
Safety and Health Administration ("MSHA") was due to internal mishandling. Mot. at 1-3.
Kilauea explains that it received four citations during an inspection conducted on November 21,
2000, and subsequently received two proposed penalty assessments for these citations, the first
proposed assessment for Citation No. 7947469, at issue in this proceeding, on August 30, 2001,
342

and the second proposed assessment for Citation Nos. 7947470 through 7947472 on September
8, 2001. Id. at 2. The operator contends that its vice-president, Marcilline Nichols, date-stamped
the second assessment September 8, 2001, stapled both assessments together, and on September
10, 2001, handed them to its counsel to file a hearing request. Id. The operator contends that
because Nichols failed to date-stamp the first proposed assessment for Citation No. 7947469, its
counsel mistakenly believed that it received both assessments on the same date and filed hearing
requests for both assessments on October 2, 2001. Id. at 2-3. It claims that it was not aware that
its hearing request on the assessment for Citation No. 7947469 was late until it received a letter
from MSHA informing it that the proposed assessment had become a final order. Id. The
operator requests that the Commission reopen the assessment and permit it to have a hearing on
the merits. Id. at 5. The operator attached to its request a copy of the proposed penalty
assessment for Citation No. 7947469, copies of the citations, and the affidavit ofMarcilline
Nichols.
We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final under section 105(a). Jim Walter Res., Inc., 15
FMSHRC 782, 786-89 (May 1993) ("JWR"); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932
(Sept. 1994). We have also observed that default is a harsh remedy and that, ifthe defaulting
party can make a showing of adequate or good cause for the failure to timely respond, the case
may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs.,
Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening final orders, the Commission has
found guidance in, and has applied "so far as practicable," Fed. R. Civ. P. 60(b). See 29 C.F.R.
§ 2700. l (b) ("the Commission and its judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. fu accordance with Rule 60(b)(l), we
previously have afforded a party relief from a final order of the Commission on the basis of
inadvertence or mistake. See Gen. Chem. Corp., 18 FMSHRC 704, 705 (May 1996); Kinross
Delamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996); Stillwater Mining Co., 19
FMSHRC 1021, 1022-23 (June 1997).
The record indicates that Kilauea intended to contest the proposed penalty assessment,
but that it failed to do so in a timely manner due to internal mishandling. The affidavit attached
to Kilauea's request is sufficiently reliable and supports its allegations. fu the circumstances
presented here, we treat Kilauea's late filing of a hearing request as resulting from inadvertence
or mistake. See 46 Sand & Stone, 23 FMSHRC 1091, 1091-93 (Oct. 2001) (granting operator's
request to reopen where operator alleged its failure to timely request a hearing was due to internal
mishandling as a result of change in personnel and operator's assertions were supported by
affidavit); Heartland Cement Co., 23 FMSHRC 1017, 1018-19 (Sept. 2001) (granting operator's
request to reopen where operator alleged its failure to timely request a hearing was due to internal
processing error as a result of its receipt of numerous proposed penalty assessments
simultaneously and operator's allegations were supported by affidavit).

343

Accordingly, in the interest of justice, we grant Kilauea's request for relief, reopen the
penalty assessment that became a final order with respect to Citation No. 7947469, and remand
to the judge for further proceedings on the merits. The case shall proceed pursuant to the Mine
Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Theodore F. Verheggen, Ch ·

.

.

' ;·a·;z.7
__ ... '""""'

·-~- ---··-·· ·

Robert H. Beatty, Jr., Commissioner

344

Distribution
Charles P. Keller, Esq.
Snell & Wilmer, LLP
One Arizona Center
400 E. Van Buren
Phoenix, AZ 85004
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

345

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

April30,2002

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

Docket No. LAKE 2002-18-M
A.C. No. 11-01578-05569
Docket No. LAKE 2002-19-M
A.C. No. 11 -01578-05570

V.

WEDRON SILICA

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners

ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On November 19, 2001, the Commission received from
Wedron Silica a request to reopen penalty assessments that had become final orders of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. Id.
On August 7, 2001 , the Department of Labor's Mine Safety and Health Administration
("MSHA") issued Wedron Silica two proposed penalty assessments. Mot., attachments. One
proposed penalty assessment (A.C. No. 11-01578-05569) listed 19 citations with proposed
penalties in the sum of$1290. Id. The other proposed penalty assessment (A.C. No. 11-0157805570) listed four citations with proposed penalties in the sum of $558. Id. In its request,
Wedron Silica, apparently proceeding prose, contends that it filed a green card for each proposed
penalty assessment contesting some of the penalties but that it also paid MSHA the proposed
346

penalties for the remaining uncontested citations. Mot. Wedron Silica states that it was
informed by MSHA that the agency did not receive the green cards. Id. Attached to its request
are copies of the two green cards, both signed and dated September 6, 2001 by a company
official. Id., attachment. The box on each green card indicating that the operator wished to
contest some of the proposed penalties has been checked. Id. On the green card listing 19
citations (A.C. No. 11-01578-05569), the operator circled two of the citations (Citation Nos.
06141257 and 06141261) with penalties in the sum of $355. Id. Notations by the operator on
the green card indicate that of the total of$1290 in penalties, $935 was paid and $355 was
contested. Id. On the green card listing four citations (A.C. No. 11-01578-05570), the operator
circled two of the citations (Citation Nos. 06141290 and 06141291) with penalties in the sum of
$448. Id. Notations by the operator on the green card indicate that of the total of $558 in
penalties, $110 was paid and $448 was contested. Id.
We have held that, in appropriate circumstances, we possess jurisdiction to reopen
uncontested assessments that have become final under section 105(a). Jim Walter Res., Inc. , 15
FMSHRC 782, 786-89(May1993) ("JWR"); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932
(Sept. 1994). We have also observed that default is a harsh remedy and that, ifthe defaulting
party can make a showing of adequate or good cause for the failure to timely respond, the case
may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs.,
Inc. , 17 FMSHRC 1529, 1530 (Sept. 1995). In reopening final orders, the Commission has
found guidance in, and has applied "so far as practicable," Fed. R. Civ. P. 60(b). See 29 C.F.R. §
2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. In accordance with Rule 60(b)(l), we
previously have afforded a party relief from a final order of the Commission on the basis of
inadvertence or mistake. See Gen. Chem. Corp., 18 FMSHRC 704, 705 (May 1996); Kinross
DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996); Stillwater Mining Co., 19
FMSHRC 1021, 1022-23 (June 1997).
Wedron Silica has offered a sufficient explanation demonstrating that it intended to
contest the penalties relating to Citation Nos. 06141257, 06141261, 06141290, and 06141291,
and that the proposed penalty assessments as to those citations became final as a result of
"inadvertence" or "mistake." See Eighty Four Mining Co., 23 FMSHRC 1102, 1102-04 (Oct.
2001) (granting relief where operator paid some of the penalties and allegedly submitted green
card contesting the other penalties but MSHA did not receive the green card); Eighty Four
Mining Co. , 21FMSHRC876, 876-78 (Aug. 1999) (same). Wedron Silica's intention to contest
these penalties is supported by the copies of the signed and dated green cards attached to its
request and by its uncontested assertion that it paid the remaining uncontested penalties. We also
note that the Secretary does not oppose Wedron Silica's request. In addition, no other
circumstances exist that would render a grant of relief here

problematic. Accordingly, in the interest of justice, we grant Wedron Silica's unopposed request
for relief to reopen the penalty assessments that became final orders with respect to Citation Nos.
347

06141257, 06141261, 06141290, and 06141291. This case shall proceed pursuant to the Mine
Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700.

Theodore F. Verheggen, Cha·

#z

-:z:;;;~'Af-•
;;? -~
' ,< ,..., 7""'r • .-e::;;,..__
Robert H. Beatty, Jr., Commissioner

348

Distribution
Wayne Williams, Plant Manager
Wedron Silica
P.O. Box 119
Wedron, Il., 60557
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

349

FEDERAL MINE SAFETY AND 1-IEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

April 30, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) on behalf of
ANDREW GARCIA
Docket No. WEST 2001-14-DM

V.

COLORADO LAVA, INCORPORATED

BEFORE: Verheggen, Chairman; Jordan and Beatty, Commissioners 1
DECISION
BY: Verheggen, Chairman; and Beatty, Commissioner
In this discrimination proceeding arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), Administrative Law Judge Avram
Weisberger granted Colorado Lava, Inc.' s motion to dismiss the discrimination complaint filed
by the Secretary of Labor on behalf of Andrew Garcia pursuant to section 105(c)(l) of the Mine
Act, 30 U.S.C. § 815(c)(l).2 23 FMSHRC 213, 217-18 (Feb. 2001) (ALJ). The judge found that

1

Commissioner Riley participated in the consideration of this matter, but his term
expired before issuance of this decision. Pursuant to section 113(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 823(c), this panel of three Commissioners has been
designated to exercise the powers of the Commission.
2

Section 105(c)( 1) provides in pertinent part:
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 ...
or applicant for employment in any ... mine subject to this [Act]
because such miner ... or applicant for employment has filed or
made a complaint under or related to this [Act], ... or because of
the exercise by such miner ... or applicant for employment on
350

the Secretary failed to establish a prima facie case of discrimination. Id. at 222. The
Commission granted the Secretary's petition for discretionary review challenging the judge's
decision. For the following reasons, we vacate the judge's dismissal of the discrimination
complaint and remand for further proceedings.
I.

Factual and Procedural Background
The complainant, Andrew Garcia, worked as a front-end loader operator at Mountain
West Colorado Aggregates ("MWCA") from January to June 1997. 23 FMSHRC at 213. He
then worked as a truck driver in MWCA's truck division from June 1997 to January 2000, and
subsequently as a front-end loader operator at the railroad shipping yard in MWCA's Antonito
bagging facility from January to June 2000. Id. ; Tr. 21. Robert Duran was also employed as a
loader operator in MWCA's railroad yard. 23 FMSHRC at 213.

In October 1999, Garcia tagged out a loader because the parking brake did not work. Id.
at 213-14. The following day, Garcia told David McCarroll, the plant manager and Garcia's
supervisor, that the parking brake on the loader was not working. Id. at 214. Mccarroll
responded that the loader did not need a parking brake, and ordered Garcia to continue using the
loader. Id. Garcia complied and later complained to MSHA. Id. at 214, 218. As a result,
MSHA came to the Antonito site to inspect the loader, issued a citation to MWCA, and initiated
an investigation ofMcCarroll under section 1 lO(c) of the Mine Act, 30 U.S.C. § 820(c). Id. at
214.
Shortly after the incident, Mccarroll learned of Garcia's complaint to MSHA, and when
he was alone with Garcia, asked him "in a high toned voice" about the complaint. Id. Garcia
denied filing the complaint. Tr. 34. According to Garcia, McCarroll responded, "You know all
about it," and "Bull. It will all come out in the wash." Tr. 34. According to Mccarroll, he asked
Garcia about the complaint and said, "It will all come out in the wash." Tr. 255-56. Garcia also
testified that on another occasion in March 2000, when he was unable to load some marble chips
because they were frozen, McCarroll swore at him in a loud voice. 23 FMSHRC at 214.
McCarroll recalled the incident, but denied confronting Garcia. Tr. 254-55. Nevertheless,
Mccarroll testified that he was upset with Garcia for complaining to MSHA, acknowledged that
he considered Garcia's complaint an example of his "troublemak[ing]," and stopped speaking to
Garcia socially. 23 FMSHRC at 214, 217; Tr. 224-27.

behalf of himself or others of any statutory right afforded by this
[Act].
30 U.S.C. § 815(c)(l).
351

Sometime, in the spring of2000, Ronald Bjustrom, the eighty-percent owner of Colorado
Lava, became interested in purchasing MWCA's Antonito facility. 23 FMSHRC at 215.
Bjustrom visited the facility on four occasions prior to Colorado Lava's purchase on June 5,
2000. Id. During this time, Bjustrom decided to eliminate several positions, and asked
McCarroll his opinion as to what jobs could be eliminated. Id. McCarroll suggested a railroad
yard loader operator position and a mechanic position. Id. Bjustrom also asked Mccarroll which
MWCA employees were weak. Id. McCarroll told Bjustrom that Garcia and four other
employees were weak,3 and that Garcia caused trouble, tried to stir up trouble between
employees, was a poor operator, abused equipment, and had filed union grievances. Id. Garcia
was the only employee about whom Mccarroll said only negative things. Id. Bjustrom testified
that his conversations with McCarroll had no bearing on which MWCA employees would be
rehired by Colorado Lava. Id.

In late May or early June 2000, prior to the interviews on June 5, Bjustrom told
McCarroll that he would be retained as the plant manager. Tr. 100-01. Also prior to June 5,
Bjustrom retained Terry Kissner, who was not an employee of Colorado Lava, to do the hiring.
23 FMSHRC at 215-16. Kissner had done hiring for Bjustrom in the past.4 Id. at 215.
On June 5, Kissner interviewed the MWCA employees individually according to
Bjustrom's instructions, which included asking the applicants the same questions from the
booklet, asking the mechanics additional questions, including whether they would accept another
position, and eliminating one railroad yard loader operator position and one mechanic position.
Id. at 215-16; Tr. 174. Kissner testified that, with respect to Garcia, he did not look at his
personnel file, letters of recommendation, past safety record, or production levels, and that the
interviews were a formality. 23 FMSHRC at 216. He also testified: that he did not review the
personnel files of any of the employees he interviewed; that before the day of the interviews, he
had never visited the Antonito facility; that he had no personal knowledge of the MWCA
employees; and that while he spoke with McCarroll "as few as three times," he did not meet
McCarroll until the day of the interviews and never discussed the MWCA employees with him.
Id. at 215-16; Tr. 159, 178. Bjustrom testified that Kissner made the final decision about which
employees to rehire, and that he (Bjustrom) did not participate in that decision, although he
retained the ultimate authority to hire. 23 FMSHRC at 215, 220.
Garcia testified that on June 1, 2000, he was told of the sale ofMWCA's Antonito facility
to Colorado Lava and that all employees would be rehired, but was not informed that any jobs
would be eliminated. Tr. 39-40. Garcia also testified that on the morning of June 5, Bjustrom
gave the employees application packets, and scheduled each employee for an interview. Tr. 403

However, loader operator Duran testified that he supervised Garcia at the rail yard, and
found him to be a satisfactory worker. Tr. 291-92.
4

Bjustrom received from his banker a booklet of interview questions, which he gave to
Kissner, to use during the interviewing of the MWCA employees. 23 FMSHRC at 215.
352

41. At the interview, Kissner did not inform Garcia that one loader operator position at the rail
yard was being eliminated. Tr. 42, 177.
On June 6, 2000, Colorado Lava purchased MWCA and rehired all of the MWCA
employees except Garcia, and Ernie Lucero, a mechanic. 23 FMSHRC at 216 & n.2. After
Garcia learned that he was not going to be rehired, he secured a job with MWCA which is farther
from his home, has a lower pay scale, and fewer incentives than his former position at the
Antonito railroad yard facility. Id. at 215. Bjustrom testified that he first learned about Garcia's
complaint to MSHA about a week or two after the decision was made not to hire him. Tr. 14344.
At the conclusion of the Secretary's case, the judge issued a bench decision granting
Colorado Lava' s motion to dismiss the discrimination complaint on the basis that the Secretary
had failed to establish a prima facie case of discrimination. 23 FMSHRC at 217-18, 222. The
judge found that Garcia participated in protected activity when he complained about the parking
brake on the loader to his supervisor Mccarroll and to MSHA. Id. at 218. He also found that
Colorado Lava took adverse action against Garcia when Kissner decided not to retain Garcia
after Colorado Lava's purchase of the Antonito facility. Id. He concluded, however, that
McCarroll' s animus could not be imputed to Kissner, who independently made the decision to
take the adverse action against Garcia, because there was no evidence that Mccarroll in any way
participated in the decision not to hire Garcia, or that either Bjustrom or Kissner had lmowledge
of Garcia's protected activity. Id. at 218-21. The judge therefore concluded that there was no
evidence that the adverse action was motivated in any part by Garcia's protected activity. Id. at
220-21.
II.

Disposition
A complainant alleging discrimination under the Mine Act establishes a prima facie case
of prohibited discrimination by presenting evidence sufficient to support a conclusion that the
individual engaged in protected activity and that the adverse action complained of was motivated
in any part by that activity. See Driessen v. Nev. Goldfields, Inc., 20 FMSHRC 324, 328 (Apr.
1998); Sec '.Y ofLabor on behalfofPasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799
(Oct. 1980), rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (3d Cir. 1981 ); Sec '.Y ofLabor on behalfofRobinette v. United Castle Coal Co., 3
FMSHRC 803, 817-18 (Apr. 1981).
Here, the judge found that Garcia engaged in protected activity when he complained to
Mccarroll and MSHA that the parking brake on the front-end loader was not operational, and
also determined that the operator took adverse action against Garcia when it declined to hire him.

353

23 FMSHRC at 218. Substantial evidence supports both of these conclusions.5 The remaining
issue before us is whether the adverse action taken by Colorado Lava was motivated in any part
by Garcia's protected activity.
Concerning motivation, in Secretary ofLabor on behalfof Chacon v. Phelps Dodge
Corp., the Commission stated that "[d]irect evidence of motivation is rarely encountered; more
typically, the only available evidence is indirect." 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd on
other grounds, 709 F.2d 86 (D.C. Cir. 1983). In Chacon, the Commission identified several
indicia of discriminatory intent, including: (1) knowledge of the protected activity; (2) hostility or
animus towards protected activity; (3) coincidence in time between the protected activity and the
adverse action; and (4) disparate treatment of the complainant. 3 FMSHRC at 2510.
Here, the judge concluded that the Secretary failed to show motivation based on his
finding that Kissner, the person who allegedly made the decision not to hire Garcia, had no
knowledge of his protected activity and no animus towards him. However, it is clear that the
judge did not explicitly consider all of the evidence of motivation he was required to consider
under Chacon. Specifically, it appears that the judge failed to consider fully record evidence of
disparate treatment toward Garcia by Colorado Lava. In fact, the judge found "some indication
in the record of disparate treatment of Mr. Garcia," but concluded that disparate treatment did not
occur, stating instead that "there is a difference between establishing the existence of a fact based
on an inference, as opposed to proffering evidence of sufficient probative weight to establish a
fact in issue." 23 FMSHRC at 218-19.
On this point the judge was incorrect, because the consideration of indirect evidence
when examining motivational intent necessarily involves the drawing of inferences. As the
Commission stated in Bradley v. Belva Coal Co., "circumstantial evidence [of discriminatory
motivation] and reasonable inferences drawn therefrom may be used to sustain a prima facie
case." 4 FMSHRC 982, 992 (June 1982). Furthermore, inferences drawn by judges are
"permissible provided they are inherently reasonable and there is a logical and rational
connection between the evidentiary facts and the ultimate fact inferred." Mid-Continent Res.,
Inc., 6 FMSHRC 1132, 1138 (May 1984). Since the judge's decision is premised upon a
mistaken assumption that motivation may not be established through inferences based on
circumstantial evidence, he erred.
Indeed, as the judge found, there are many "indication[s] in the record of disparate
treatment." For example, the judge explicitly pointed to evidence that (1) Duran was chosen over

5

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means '"such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion. "' Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)).
354

Garcia for the loader operator position because Duran had more experience than Garcia, on the
other hand, Vondrak, who had less experience than Lucero, was hired over Lucero as a
mechanic; (2) Lucero, the only other employee not rehired, was offered another position at
Colorado Lava, but Garcia was not; and (3) when considering which positions to eliminate,
Bjustrom only evaluated the loader operator and mechanic positions, and not other positions at
the site. 23 FMSHRC at 218-19.
There is additional record evidence set forth in the judge's decision that could support a
finding of disparate treatment. The judge found that Kissner wanted to hire the best qualified
employees for the loader operator and the mechanic positions and testified that he reviewed the
applications for these two positions prior to making his decision. Id. at 216. Kissner stated that
he looked at work history and tenure when he decided to hire Duran over Garcia for the loader
operator position, but admitted that he did not review Garcia's personnel file, letters of
recommendation, safety record, or production levels when considering whom to hire. Id.
Moreover, the record indicates that, on approximately June 7, 2000, with Bjustrom' s
approval, McCarroll hired Jeremy Gallegos, a former MWCA employee who was not working
for the company at the time of its purchase by Colorado Lava, to fill a bagger position that had
been vacated prior to Colorado Lava's purchase on June 5. Tr. 120-23, 241-42, 270-71.
Gallegos apparently had experience as a bagger. Tr. 270-71. Garcia, while still employed at the
Antonito facility, was being trained as a bagger and had filled in as a bagger three or four times
prior to June, but was not considered for the vacant position. 23 FMSHRC at 214; Tr. 192-93,
274. Although Gallegos had experience as a bagger, Garcia was also experienced both as a
bagger and more specifically with the operations at the Antonito facility. Despite Garcia's
availability when the bagger position was open, he was not considered for the position.
The record further demonstrates that, in spite ofMcCarroll's recommendation that
Bjustrom retain only one rail yard employee, after assuming operations at the Antonito facility,
Colorado Lava continued to use two employees at the rail yard. Tr. 246-48, 289, 298. Mccarroll
testified that after June 5, a second employee from the Antonito facility worked at the rail site
with either Duran or himself, including George Ruybal, Brian Kent, and Joe Padillo, who were
former MWCA employees rehired by Colorado Lava. Tr. 246-47. He testified that prior to June
5, Ruybal and Kent did not have experience operating the front-end loader and were being
trained. Tr. 247-48. Duran confirmed McCarroll's testimony that two employees continued to
work at the rail site after June 6. Tr. 289.
We conclude that the judge did not adequately consider the record evidence of disparate
treatment in this case. Under Chacon, therefore, his analysis of motivation is incomplete.
Accordingly, his conclusion that the Secretary failed to establish motivation cannot be upheld
and his decision to dismiss the discrimination complaint for failure to establish a prima facie case
must be vacated. On remand, consistent with Chacon, the judge should consider all the evidence
tending to show improper motivation, including that of disparate treatment of the miner. If the
judge finds that a prima facie case has been established, he must reopen the record to allow the

355

operator to present further evidence, if it chooses, as part of its rebuttal, 6 and to allow the
Secretary an opportunity to demonstrate that the operator's justification was pretextual.

ill.
Conclusion
For the foregoing reasons, we vacate the judge's dismissal of the discrimination
complaint, and remand for further proceedings consistent with this opinion.

Theodore F. Verheggen, Chairman

Robert H. Beatty, Jr., Commissioner

6

Our concurring colleague, Commission Jordan, would have the Commission address at
this time the judge's finding that Kissner lacked knowledge regarding Garcia's protected activity
and animus towards him. Slip op. at 8-12. Because we view the finding as not dispositive of the
prima facie case issue, we find it unnecessary at this time to address the evidence supporting it.
Of course, before the judge again reaches a conclusion regarding the strength of this rebuttal
evidence, we would expect him to consider the Secretary's arguments for imputing McCarroll ' s
knowledge of and animus towards Garcia's safety complaints to Bjustrom or Kissner. Having
dismissed the case in the middle of the hearing, it is apparent to us that the judge did not have an
adequate opportunity to fully consider these arguments, and the evidence supporting them. That
can only occur after a complete hearing.

356

Commissioner Jordan, concurring:
As a result of Andrew Garcia's safety complaint to MSHA, the operator received a
citation and David Mccarroll, Garcia's supervisor, became the subject of a section l lO(c)
investigation. 1 23 FMSHRC 213-214, 218 (Feb. 2001) (ALJ). Subsequently, Garcia was the
only worker not retained when Colorado Lava took over the mine from Mountain West Colorado
Aggregates ("MWCA") eight months later. Id. at 215, 216 n.2. Garcia was also not considered
for a job opening that arose shortly after the takeover. Tr. 120-23, 241-42, 270-271. For the
reasons discussed below, I agree with my colleagues that the judge's decision dismissing the case
should be vacated and the case remanded. However, because I conclude that the Secretary has
already established a prima facie case of discrimination, I would not instruct the judge to revisit
that issue.
The judge's holding that the Secretary failed to establish a prima facie case was based on
his finding that Terry Kissner, the individual who allegedly made the decision not to rehire
Garcia, had no knowledge of Garcia's protected activity and therefore could harbor no retaliatory
animus towards him. 23 FMSHRC at 220. The judge failed to take into account, however, the
pivotal role that Garcia's supervisor, Mccarroll may have played in the decision not to rehire
Garcia. Mccarroll admitted that he was upset about Garcia's complaint to MSHA, Tr. 224, and
the judge found that McCarroll harbored animus towards Garcia because of this protected
activity. 23 FMSHRC at 219. Prior to the takeover by Colorado Lava, Ronald Bjustrom, who
owned eighty percent of that company and had the ultimate authority to make hiring decisions,
id. at 220, asked Mccarroll about the employees he supervised. McCarroll described Garcia as
"a poor employee" who "causes trouble" and "talks to other employees, trying to stir up trouble
between them." Tr. 229. Mccarroll also told Bjustrom that Garcia filed grievances, was a poor
operator, and abusive to the equipment. Tr. 231. 2 In addition, Mccarroll recommended to
Bjustrom that one of the two rail loader jobs (the position Garcia held) be eliminated.
23 FMSHRC at 215; Tr. 240. On June 6, 2000, Colorado Lava purchased MWCA and hired all
of the MWCA employees except Garcia.3 23 FMSHRC at 216 & n.2

1

Section l lO(c) of the Mine Act provides that whenever a corporate operator violates a
mandatory health or safety standard, a director, officer, or agent of such operator who knowingly
authorized, ordered, or carried out the violation shall be subject to an individual civil penalty. 30
U.S.C. § 820(c).
2

Garcia was the only employee about whom Mccarroll made only negative comments.
23 FMSHRC at 220. Mccarroll identified four other employees as weak but they were all hired
by Colorado Lava. Id. at 215, 216 n.2.
3

Ernie Lucero was initially not rehired; however, he was subsequently offered a job at
another location with a cut in pay. 23 FMSHRC at 216 n.2.
357

To make out a prima facie case of discrimination, the Secretary need only submit enough
evidence so that the record could support an inference that the failure to rehire Garcia was
motivated by his safety complaint. See Sec '.Y ofLabor on behalfofHyles v. All American
Asphalt, 21 FMSHRC 119, 127-28 (Feb. 1999) (a complainant establishes a prima facie case "by
presenting evidence sufficient to support a conclusion that the individual engaged in protected
activity and that the adverse action complained of was motivated in any part by that activity....
The 'possibility of drawing either of two inconsistent inferences from the evidence [does] not
prevent [the judge] from drawing one of them."' (citation omitted)); see EEOC v. Avery
Dennison Corp., 104 F.3d 858, 861-862 (6th Cir. 1997) (reversing district court's finding that
plaintiffs "failed to present sufficient evidence to meet their burden of establishing a prima facie
case of retaliation" in a case where there was "ample evidence from which the court could have
inferred retaliation at the prima facie stage"). The judge should have determined whether there
was enough evidence in the record from which a reasonable person could infer that McCarroll's
negative review of Garcia resulted, at least in part, from Garcia's protected activity and that the
negative review in turn was a factor in Colorado Lava's decision not to hire Garcia.
IfMcCarroll's criticisms were a result of retaliatory animus and if those negative remarks
influenced the decision not to hire Garcia, then the principle announced by the Commission in
Metric Constructors, Inc., 6 FMSHRC 226, 230 n.4 (Feb. 1984) applies and McCarroll's
retaliatory animus should be attributed to the decision maker. In Metric, the night superintendent
told the project superintendent that certain miners were refusing to perform work, but he did not
communicate the protected safety reason behind the miners' refusal. 6 FMSHRC at 226, 228.
The project superintendent thereafter terminated the miners. !d. at 228. In rejecting the
operator's defense that the project superintendent himself did not know of the miners' protected
activity, the Commission held that: "[a]n operator may not escape responsibility by pleading
ignorance due to the division of company personnel functions." Id. at 230 n.4 (citation omitted).
Since the judge here dismissed the case without considering the principle of imputing knowledge
announced in Metric, he erred.
The approach used by the Commission in Metric is one that has also been extensively
applied in cases arising under the National Labor Relations Act. If a supervisor has knowledge
of an employee's protected activities, harbors animus towards that activity, and influences or
participates in a decision that adversely affects the employee, the courts have imputed knowledge
and animus to the employer notwithstanding the actual decision-maker's ignorance of the
protected activities. See Boston Mutual Life Ins. Co. v. NLRB, 692 F.2d 169, 171 (1st Cir. 1982)
(declining to "launder" regional sales manager's knowledge and animus through a neutral
superior where superior had no knowledge of employee's protected activity, but "acted in direct
response" to regional sales manager's recommendation to dismiss employee); Grand Rapids Die
Casting Corp. v. NLRB, 831F.2d112, 114 (6th Cir. 1987) (imputing plant manager's knowledge
of and animus against employee's protected activity based on his "involve[ment]" in decision to
terminate employee by recommending employee's termination to company's industrial relations
manager, who had no knowledge of employee's protected activity and relied on plant manager's
recommendation) (internal quotations and citations omitted); JMC Transp., Inc. v. NLRB, 776

358

F.2d 612, 619 (6th Cir. 1985) (imputing operations manager's unlawful animus to company
because his corroboration of a fabricated story about employee was "a significant factor" in the
president's and general manager's decision to terminate employee, despite the decision-makers'
lack of knowledge regarding employee's protected activity).
The courts have used this same approach in cases arising under federal antidiscrimination statutes. For instance, in Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.
1990), the Seventh Circuit, applying agency principles in an ADEA suit, found that if the
employer's career path committee, which ultimately made the decision to discharge the
employee, acted as the "conduit" of the supervisor's prejudice- "his cat's paw" - the
innocence of the committee's members would not spare the employer from liability. The court
held that ifthe supervisory employee procured the employee's discharge by evaluating the
employee and making recommendations to the committee on an unlawful basis, then the
supervisory employee's unlawful actions would be imputed to the employer. Id.; see also
Bergene v. Salt River Project Agricultural Improvement and Power District, 272 F.3d 1136 (9th
Cir. 2001) (even if a manager was not the ultimate decision maker, that manager's retaliatory
motive may be imputed to the company if the manager was involved in the hiring decision). 4
Admittedly, in Metric, there was no dispute that the supervisor with knowledge caused
the project superintendent to fire the miners. Here, on the other hand, the parties disagree as to
whether McCarroll's comments played any role in the decision not to hire Garcia. The operator
denies that McCarroll's comments were a factor in its decision not to retain Garcia. C. Br. at
9 - 14. Indeed, mine owner Bjustrom claims that the hiring was done by Kissner, an individual
Bjustrom retained to interview the miners and who denies any knowledge ofMcCarroll's
comments. 23 FMSHRC at 215-16. Furthermore, although Bjustrom eliminated one railroad
loader position, in accordance with McCarroll's advice, id at 215, he claims that the decision to
choose another miner over Garcia for the remaining loader position was based solely on the other
miner's greater length of service. Id. at 218-219.

4

See also Gusman v. Unisys Corp., 986 F.2d 1146, 1147 (7th Cir. 1993) (holding
employer liable under ADEA where employer relied .upon supervisory employee's
recommendation to discharge employee, and supervisory employee, possessing unlawful animus,
lied about employee's ability to work to ensure his discharge); Long v. East.field College, 88 F.3d
300, 306-08 (5th Cir. 1996) (in Title VII case, remanding to district court to apply principles
enunciated in Shager and determine whether president who made ultimate decision to terminate
employees made independent investigation severing causal connection or whether he "rubberstamped" the supervisory employees' recommendations based on unlawful motive); Dey v. Colt
Constr. & Dev. Co., 28 F.3d 1446, 1459-60 (7th Cir. 1994) (rejecting president's allegation that
he based decision to terminate employee on independent assessment of employee's performance,
because he solicited vice-president's opinion, who had knowledge of and animus against
employee and recommended his discharge, and holding employer liable under Title VII even
though president did not know about employee's protected activity).
359

Of course, a judge might ultimately decide that McCarroll's knowledge of and animus
towards Garcia's safety complaint should not be imputed to either B_iustrom or Kissner, or that
even after imputing that knowledge, Colorado Lava nevertheless demonstrated that Garcia would
not have been hired on the basis of a valid neutral criteria. Nonetheless, dismissal for failure to
make out a prima facie case is not warranted. The appropriate questions to ask for determining
whether the Secretary made out a prima facie case is, could the evidence support an inference
that McCarroll's comments were infected by retaliatory animus, and could one infer that those
comments in tum influenced Colorado Lava's decision not to hire Garcia?
Clearly, the answer to those questions is yes. The record indicates that Bjustrom sought
McCarroll's advice about jobs that could be eliminated and the performance of the employees
under McCarroll's supervision. Id. at 215, 220. The judge found that McCarroll harbored
animus towards Garcia because of Garcia' s complaint to MSHA. Id. at 219. It would be
reasonable to infer that McCarroll ' s thoroughly negative evaluation of Garcia, as well as his
suggestion as to which jobs to eliminate, were tainted by this retaliatory animus. 5 Could one
reasonably infer that McCarroll's remarks influenced the decision not to hire Garcia? I believe
the evidence could support such inference.
Although Bjustrom claimed that Kissner decided who would be hired, a factfinder could
reasonably conclude that it was Bjustrom who was the actual decision maker. Indeed as the
judge pointed out, it was Bjustrom who retained the ultimate hiring authority, and it was
Bjustrom who provided Kissner with explicit instructions on how to conduct the interviews,
including what questions to ask, and which positions to eliminate. 23 FMSHRC at 215-216. As
to whether Bjustrom was influenced by McCarroll's remarks, there is no dispute that Bjustrom
followed McCarroll's recommendations regarding which jobs to eliminate, id. at 215-216, an
action which in itself dramatically decreased Garcia's chances of being rehired. Furthermore,
although Bjustrom claimed McCarroll's remarks played no role in the decision not to rehire
Garcia, a factfinder could reasonably conclude that it strained credulity for a mine owner to claim
that a thoroughly negative evaluation from an employee's former supervisor played no part in the
decision not to hire that employee. Indeed, the factfinder could find this claim particularly
difficult to accept since the mine owner had solicited the supervisor's views on employee
performance. Moreover, since the record shows that Colorado Lava had already decided to retain
McCarroll as supervisor by the time it interviewed the other employees, Tr. 215, a factfinder
might find this assertion completely implausible. In light ofMcCarroll's remarks, Bjustrom
would have realized that retaining Garcia would be tantamount to placing a permanent thorn in

5

At the time Mccarroll spoke to Bjustrom about Garcia's performance, the section
1 lO(c) investigation against McCarroll was still pending. S. Br. at 3.
360

McCarroll's side. A factfinder might find it unlikely that Bjustrom would not have been
influenced by that realization. 6
Even if Colorado Lava could persuade a factfinder that McCaiToll's remarks had no
bearing on its decision of June 6 as to which MWCA employees would be retained, that
factfinder could nevertheless conclude that Colorado Lava's failure to subsequently hire Garcia
for the bagger position (a job filled on June 7), resulted at least in part from McCarroll's
retaliatory animus. Garcia contends that he was receiving training for this position and had filled
in for a bagger before he was let go. 23 FMSHRC at 214; Tr. 47. Clearly, Colorado Lava cannot
claim that McCarroll did not influence the decision to hire someone other than Garcia for the
position. Indeed the record indicates that it was Mccarroll himself who filled the job, after
consulting with Bjustrom. Tr. 120-23, 241-42, 270-71.
The majority vacates the decision below primarily on the basis of the judge's failure to
examine evidence of disparate treatment. Slip op. at 5-7. My colleagues also "expect" the judge
to consider the Secretary's imputation arguments before making his ultimate determination on
the merits of the case, slip op. at 7 n.6., implicitly vacating his finding that Colorado Lava had no
knowledge of Garcia's protected activity. The majority rightly insists that the judge consider all
of the evidence regarding the operator's motivation for not hiring Garcia, but paradoxically
deems the judge's finding pe1taining to whether the operator even knew about Garcia's protected
activity as "not dispositive of the prima facie case," and consequently declines to address the
evidence supporting it. Jd.1 I fear this ruling leaves the judge and parties in a legal limbo.

6

Even if Kissner was found to be the decisionmaker, the evidence would still support the
inferences necessary to make out a prima facie case. Although Kissner denied receiving any
info1mation about Garcia or the animosity between Mccarroll and Garcia, a factfinder could
reject this claim as incredible in light of the evidence that Kissner "may have talked to Mccarroll
as few as three times," Tr. 159, including a conversation on the very day he conducted his
interviews with the employees. 23 FMSHRC at 216.
7

Unlike my colleagues in the majority, I believe that evidence pertaining to the
operator's lack of knowledge of protected activity is relevant and in fact may be dispositive of
whether the Secretary has made out a prima facie case. See Secy of Labor on behalf of Chacon
v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-11(Nov.1981), rev'd on other grounds, 709
F.2d 86 (D.C. Cir. 1983) (evidence of knowledge used to make a prima facie case); Secy of
Labor on behalf of Clay Baier v. Durango Gravel, 21FMSHRC953, 957-58, (Sept. 1999) (in
discussing prima facie case, Commission determines that substantial evidence supported judge's
finding that operator had knowledge of miner's protected activity).
361

In sum, the Secretary has presented sufficient circumstantial evidence to support an
inference that McCarroll influenced Colorado Lava's decision not to employ Garcia, and that
McCarroll's knowledge and animus should be imputed to that operator. Accordingly, she
succeeded in establishing her prima facie case. Thus, I would remand this matter to the judge
solely to permit the operator to adduce additional evidence in support of its rebuttal, to provide
the Secretary an opportunity to introduce additional evidence in support of her pretext argument,
and for the judge to rule on the ultimate issue of whether discrimination occurred in violation of
section 105(c).

362

Distribution
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Mark M. Nelson, Esq.
Harris, Karstaedt, Jamison & Powers, P. C.
383 lnvemess Drive, South, Suite 400
Inglewood, CO 80112
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

363

364

ADMINISTRATIVE LAW JUDGE DECISIONS

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

April 9, 2001
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. KENT 2001-129
A. C. No. 15-12564-03573

LEFT FORK MINING INC.,
Respondent

Straight Creek No. 1 Mine

DECISION
Appearances:

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department
of Labor, Nashville, Tennessee, for the Petitioner;
Terry Nelson, Jr., Safety Director, Left Fork Mining,
Brookside, Kentucky, for the Respondent.

Before:

Judge Feldman

This proceeding concerns a petition for assessment of civil penalty filed pursuant to
section 1 IO(a) of the Federal Mine Safety and Health Act of 1977 (the Mine Act), 30 U.S.C.
§ 820(a), by the Secretary of Labor (the Secretary), against the respondent, Left Fork Mining
Incorporated (Left Fork). The petition seeks to impose a $581.00 civil penalty for three
alleged violations of the mandatory safety standards in 30 C.F.R. Part 75 of the Secretary's
regulations governing underground coal mines. All of the alleged violations were
characterized as significant and substantial (S&S) in nature. These matters were heard on
January 23, 2002, in Pineville, Kentucky. The parties' post-hearing proposed findings and
conclusions have been considered in the disposition of this matter.
I. Statement of the Case

The Mine Act imposes on the Secretary the burden of proving the fact of occurrence
of the cited violations by a preponderance of the evidence. Garden Creek Poccahontas Co.,
11FMSHRC2148, 2152 (Nov. 1989). The Commission has articulated that the Secretary
satisfies her preponderance of the evidence burden by demonstrating "that it was more likely
than not" that the cited violation occurred. Enlow Fork Mining Company, 19 FMSHRC 5,
13 (January 1997). While the Secretary may satisfy her burden of proof by relying on
reasonable inferences drawn from indirect (circumstantial) evidence, such inferences must be
inherently reasonable and there must be a rational connection between the evidentiary facts
and the ultimate fact to be inferred. Garden Creek, 11 FMSHRC at 2153 citing MidContinent Resources, Inc. , 6 FMSHRC at 1132, 1138.
This case concerns three citations issued by Mine Safety and Health Administration
(MSHA) Inspector Alexis Goins on October 18, 2000, at Left Creek's Straight Creek
365

No. 1 Mine. Inspector Goins did not go underground at any time during the course of her
October 18, 2000, inspection. (Tr. 123). Rather, Goins infened that two of the three cited
violations occurred underground based on her observations on the surface. For the reasons
discussed below, the Secretary has failed to demonstrate that it was more likely than not that
these two violations in fact occuned. The Secretary failed to prove these violations because
the inferences sought to be drawn by the Secretary were overcome by the direct evidence
presented by Left Fork through the testimony of its mine foreman and assistant foreman who
had direct knowledge of the events in issue because they were underground. Consequently,
two of the three subject citations shall be vacated. In addition, the significant and substantial
designation in the remaining citation shall be deleted.
II. Pertinent Case Law and Penalty Criteria
This decision applies the Commission's standards with respect to what constitutes a
significant and substantial violation. A violation is properly designated as S&S in nature if,
based on the particular facts sunounding that violation, there exists a reasonable likelihood
that the hazard contributed to by the violation will result in an injury or an illness of a
reasonably serious nature. Cement Division, National Gypsum, 3 FMSHRC 822, 825 (April
1981). In Mathies Coal Co., 6 FMSHRC 1(January1984), 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 mandatmy 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 [by the violation] will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a reasonably serious nature.

6 FMSHRC at 3-4; see also Austin Power Co. v. Secretary, 861 F.2d 99, 104-05 (5th Cir.
1988), affg 9 FMSHRC 2015, 2021(December1987) (approving Mathies criteria).
In United States Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (August 1985), the
Commission explained its Mathies criteria as follows:

We have explained further that the third element of the Mathies formula
'requires that the Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an injury.' U.S. Steel
Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We have
emphasized that, in accordance with the language of section 104(d)( 1), it is
the contribution of a violation to the cause and effect of a hazard that must be
significant and substantial. U.S. Steel Mining Company Co., Inc., 6 FMSHRC
1866, 1868 (August 1984). (Emphasis in original).
The Commission subsequently reasserted its prior determinations that as part of any
"S&S" finding, the Secretary must prove the reasonable likelihood of an injury occuning as a
result of the hazaTd contributed to by the cited violative condition or practice. Peabody Coal
Company, 17 FMSHRC 508 (April 1995); Jim Walter Resources, Inc., 18 FMSHRC 508
(April 1996).
366

With respect to the imposition of penalties, this decision applies the statutory civil
penalty criteria in section 1lO(i) of the Act, 30 U.S.C. § 820(i), to determine the appropriate
civil penalty to be assessed. In this regard, section 11 O(i) provides, in pertinent part:
The Commission shall consider the operator's history of previous violations,
the appropriateness of such penalty to the size of the 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 of a violation.
Applying the general statutory penalty criteria, Left Fork is a subsidiary of Manalapan
Mining, a large mining company with approximately 400 employees. (Tr. 15). However,
Left Fork employs only two individuals at its inactive Straight Creek No. I facility who
perform maintenance and rehabilitation duties. Left Fork also uses the services of a contract
security guard who is stationed in a security shack at the mine's surface. (Tr. 20). Left Fork
has stipulated
that it is subject to the jurisdiction of the Mine Act. (Tr. 14). The Secretary does not contend
that Left Fork has a poor compliance history, or, that the subject citations were not abated in
a timely manner. (Tr. 17). Finally, it is not contended that the $581.00 civil penalty
proposed by the Secretary will haves negative impact on Left Fork' s ability to continue in
business. (Tr. 16).
III. Findings of Fact
The Secretary stipulated that Left Fork's Straight Creek No. 1 Mine has been in
inactive non-producing status since 1996. (Tr. 17). When it was operational, the mine was
subject to more frequent MSHA inspections because it had been classified as a "gassy mine"
under section 103(i) of the Mine Act, 30 U.S.C. § 823(i), because, during active mining, it
liberated excessive amounts of methane. However, the mine is no longer subject to a section
103(i) spot inspection because of its inactive status.
Left Fork employs two individuals to maintain the mine in the event it becomes
economically feasible to restart active mining operations. These individuals are mine
foreman Russell Kelly and assistant mine foreman Tim Daniels. Their duties consist of
maintenance and rehabilitation to ensure that the mine is kept in safe operating condition.
For example, they install roof support in areas of roof sloughage, they repair tom cables, and
they pump water to maintain safe passage.
In addition to Kelly and Daniels, Left Fork uses the services of Martin's Fork
Security, a contractor that provides a security guard on a 24-hour-a-day basis that remains in
a guard shack on the mine's surface. The security guard is responsible for communicating
..,ith Kelly and Daniels on an as needed basis by means of a voice activated walkie-talkie
type telephone system that has been approved by MSHA. Although MSHA generally
approves the communications system, MSHA's approval does not require that telephones

367

must be located at specific locations. There are several telephones on the surface in the
guard shack as well as in the hoist house and main fan house. Telephones are located
underground at various locations at approximately 500 feet intervals. There are
approximately seven phones located underground in the working section in the vicinity of the
intake slope area and at the elevator. (Tr. 83). As noted below, the location of the
underground phones satisfied the Secretary's regulations governing two-way
communications systems.
As discussed below, ventilation through the main mine shaft is accomplished through
two discrete slopes to the surface - - an intake slope and a return slope. There are two means
to exit the Straight Creek Mine. The route designated as the primary escapeway relies on an
elevator shaft located approximately 1,500 feet from the bottom of the intake slope. (Gov.
Ex. 1; Tr. 203). As an alternative to using the elevator to exit the mine, the intake slope
serves as a secondary escapeway to the surface. (Tr. 127).
At the time immediately preceding Goins' October 18, 2000, inspection, Kelly and
Daniels were in the return slope of the fan shaft installing additional roof support to abate a
citation that had been previously issued and that is not in issue in this proceeding. They were
several hundred feet from the nearest telephone. To install the roof support, Kelly and
Daniels were using steel auger drills that were connected to, and powered by, a compressor
located on the surface in the hoist house. A steel auger drill has a spiral drill bit that, in the
absence of any ventilation controls, causes the drill-dust roof material to fall directly from
the roof to the floor below.
A. The Inspector's Perspective from the Surface

Alexis Goins has nine years experience as a coal mine inspector and she is currently
assigned to MSHA's Barbourville Field Office. Goins arrived at the Straight Creek No. 1
Mine
on October 18, 2000, at approximately 11 :45 a.m. Upon arriving at the mine, Goins stopped
at the guard shack and requested the security guard to call underground to inform Kelly to
meet her on the surface at the elevator.
Goins traveled to the elevator and waited there until approximately noon, however,
Kelly never arrived at the surface. Consequently, Goins left the elevator area and traveled
to the mine office where she examined the pre-shift and onshift examination book. After
realizing that Kelly was not going to meet her in the mine office, at approximately 12:30
p.m., Goins traveled back to the guard shack to determine if Kelly had been contacted
underground. The guard informed Goins that he could not contact Kelly underground.
Goins estimated the closest phone underground was located at the base of the return and
intake slopes approximately 200 feet from where Kelly and Daniels were roof-bolting in the
return slope. (Tr. 132-35). Goins conceded
the locations of the phones underground satisfied the requirements of sections 75.1600 and
75.1600-2, 30 C.F.R. §§ 75.1600 and 75.1600-2, that require telephones or equivalent twoway communications systems at the base of slopes and within 500 feet outby the last open
crosscut. (Tr. 139-41).
368

Goins returned to the elevator to see if Kelly had arrived at the surface. She waited at
the elevator approximately 10 minutes before going to the hoist house. The hoist house
contains hoisting equipment and it also serves as the employee locker room. The hoist house
is also where the secondary escapeway intake track slope meets the surface. The intake slope
is approximately 200 yards long and Goins estimated that it takes approximately 20 to 25
minutes to travel the intake slope. (Tr. 125).
The hoist house also contains the fan house where the main mine exhaust fan is
located at the top of the return mine shaft slope. The main mine fan is approximately five
feet in diameter and it draws approximately 123,000 CFM (cubic feet per minute) of air
through the exhaust slope. The fan shaft is a travelable return slope that runs parallel to the
secondary escapeway intake slope. Although the fan shaft return slope is travelable, unlike
the intake slope, it is not used to access and exit the mine because it has a sharp incline. (Tr.
126).
Goins testified she arrived at the hoist house at approximately 12:35 p.m.. At that
time,
she noticed that the main mine fan was not operating. Goins also noted an absence of a
warning signal to alert personnel underground that the mine fan had stopped working. Goins
opened the door to the fan house where a fan chart was located. The fan chart graphs the
operation of the fan similar to the operational design of a seismograph. (Resp. Ex. 1). The
fan chart documents the time of the fan ' s shutdown when the red ink of the graph touches the
innermost black concentric circle of the graph.
Goins examined the fan chart and testified it indicated the fan recently had stopped at
12 noon on that day. (Tr. 37). Despite Goins' testimony that the fan chart reflected the fan
had stopped at 12:00 noon, the fan chart, proffered by Left Fork, clearly reflects the fan
actually stopped considerably later than noon. Significantly, the fan chart reflects the fan
stopped between12:30 p.m. and 1:00 p.m. on Wednesday, October 18, 2000. 1 (See Resp. Ex.
1).
After examining the fan chart, at approximately 12:40 p.m., Goins heard muffled
voices coming from the return slope to the surface. Although she heard the voices through
the return shaft she "couldn't actually tell where they were coming from." (Tr. 39). Goins
went to an area in the vicinity of the fan house where she observed a telephone with
disconnected wires hanging from it. Although the phone at the fan house was disconnected,
Goins testified there were several other phones in the hoist house which were located nearby
the fan house. (Tr. 91). The closest surface telephone to the fan house was located
approximately 50 feet away in the hoist house. (Tr. 209).

1

The fan chart was admitted in evidence over the objection of the Secretary. The Secretary
objected to its admissibility because she was not informed prior to trial that it would be offered as an
exhibit. Goins had no reason to question the fan chart's authenticity. The record was left open for the
Secretary to file an affidavit by a person qualified to interpret the fan chart. (Tr. 150-67). The
Secretary declined to do so.
369

Goins returned to the guard shack to inquire if the guard had communicated with the
miners underground because the miners had to be withdrawn because of a lack of exhaust
ventilation. The guard informed Goins he was unable to contact the men underground.
However, the guard did not distinguish whether Kelly and Daniels had not answered the
phone, or, whether the phone was not working. (Tr. 81). Significantly, Goins conceded that
surface to underground communication may have been unsuccessful because no one was
located close enough to the receiving phone to hear the incoming message. (Tr. 142-46).
Goins and the guard returned to the hoist house to see if the men had arrived at the
surface through the intake slope. Kelly testified that he had instructed the guard to tum off
the compressor if Kelly was ever needed on the surface and he could not be reached by
telephone. (Tr. 198). When it became clear that the men were still underground, the guard
told Goins he would get their attention by shutting off the compressor that was used to power
the steel auger drills used for roof bolting. The compressor was turned off at approximately
1:00 p.m. (Tr. 49-50).
Goins waited in the hoist house for Kelly and Daniels to arrive at the surface. Goins
observed Kelly and Daniels arrive at the surface by exiting the intake slope at approximately
1:30 p.m. (Tr. 55-56, 124). Goins approached Kelly to determine what Kelly and Daniels
had been doing underground. Goins testified:
... [Kelly] said to me that he noticed that there was no air moving at about
12:15 and they traveled from the return slope to the elevator. He said it took
about ten minutes. And then they got on the elevator and it didn't function
properly. They then traveled back from the return, crossed over to the intake
slope, and it took them about 20 minutes to walk up the slope.
(Tr. 108).
Kelly's statement to Goins that he knew the fan had stopped is consistent with Goins'
testimony. In this regard, Goins explained:
They should have known the mine fan was off because they were in the return
entry working. Once that fan goes down, if you're coursing 123,000 CFM air
down that ... coming through that return, and they wasn't (sic) far from the
top of the return shaft there, I mean, you can feel when the air stops.
(Tr. 111).
At approximately 1:00 p.m. Terry Nelson, Left Fork's Safety Director, arrived at the
guard shack. The guard informed Nelson that Goins was in the hoist house waiting for Kelly
and Daniels to exit the mine. Nelson went to the hoist house where he observed that Kelly
and Daniels had already exited the mine. Nelson turned the mine fan on by routinely using
the power switch. Nelson speculated the fan had stopped due to a power failure experienced
by Kentucky Power because the fan restarted after he turned on the fan ' s power switch.
Goins took two air bottle samples. The first was obtained at 1:35 p.m. before the fan was
turned on. The second was taken at 1:42 p.m. after the fan became operational. (Tr. 168).
Both air bottle samples were negative for any traces of methane. (Tr. 171-72). Goins' notes
370

reflect Kelly and Daniels arrived at the surfac.e at 1:30 p.m. shortly before the first air bottle
sample was taken. (Tr. 168-69).
B. The Miners' Perspective from Underground

Mine Foreman Russell Kelly has 16 years mining experience. Assistant Mine
Foreman Timothy Daniels has 13 years mining experience. On October 18, 2000, Kelly and
Daniels were installing roof bolts in the return fan shaft slope with an auger drill. An auger
drill is an air-powered drill with augured steel bits that suction and remove roof material so
that bolts can be driven into the roof. Kelly and Daniels explained that, in the fan shaft, roof
dust falls from the auger directly into the face of the drill operator if the mine fan is not
operating. (Tr. 195-96, 238-39). When the fan is running, it draws dust away from the face
of the drill operator who is positioned under the hole being drilled. On October 18, 2000,
Kelly carried a methane spotter that sounds a beeper alarm in the presence of hazardous
methane concentrations. Kelly's methane monitor did not detect any significant levels of
methane on that day. (Tr. 194-96).
Although Kelly does not remember the exact time, Kelly testified that the fan went
off"somewhere around 12:00." (Tr. 195). At that time, Kelly and Daniels immediately
discontinued drilling. (Tr. 225, 238-39). Although section 75.313(c)(l) of the Secretary's
regulations permits personnel to remain underground for 15 minutes after the mine fan
ceases to operate before withdrawing, Kelly and Daniels testified there was no point in
waiting since the only way the fan could be turned on was by them returning to the surface.
(Tr. 205, 242-43). Consequently,
Kelly and Daniels disengaged their drills from the roof, removed the steel bolts from the hole
being drilled, and placed the steel at the side of the slope. They then proceeded to the
telephone at the bottom of the slope that was located 2Yz breaks away, approximately 160
feet from where they had been working. They attempted to contact the guard by holding
down the speaker button and talking into the telephone's headset, but they were
unsuccessful. Kelly explained that it was not important to communicate with the guard since
only Kelly and Daniels were authorized to tum the fan back on. (Tr. 196-97).
After unsuccessfully attempting to communicate with the surface, Kelly and Daniels
used the three-wheel mantiip to travel to the elevator that is designated as the primary
escapeway.
(Tr. 199, 240). They entered the elevator and used the automatic buttons inside. The
elevator malfunctioned and stopped after it rose approximately 25 feet. Kelly climbed to the
top of the elevator and managed to use manual controls to get the elevator to return to the
surface.
Kelly and Daniels estimated that they were delayed approximately 15 to 20 minutes at the
elevator. (Tr. 202, 240). They next walked from the elevator to the bottom of the intake
secondary escapeway slope, a distance of approximately 1,500 feet. Upon arriving at the
bottom of the intake slope, they walked approximately 900 feet up its 18 percent grade. (Tr.
203). Kelly and Daniels estimated it took them approximately 15 minutes to walk up the
slope. (Tr. 203, 241).
In total, Kelly estimated it took approximately one hour to exit the mine. (Tr. 224-25).

371

Although Kelly's recollection was that he and Daniels exited the mine at
approximately 1:05 p.m., significantly, Goins testified her notes reflect the miners exited the
mine at approximately 1 :30 p.m. (Tr. 168-69, 203). Given the approximate one hour it took
to exit the mine, a
1:30 p.m. arrival at the surface is consistent with the fan map that reflects the fan stopped
operating on Wednesday, October 18, 2000, shortly after 12:30 p.m. (Resp. Ex. 1).
IV. Further Findings of Fact and Conclusions of Law
A. Citation No. 7508622 - Fan Warning Signal

Based on Goins' observations that a warning signal was not sounded when the mine
fan stopped, she issued Citation No. 7508622 citing a violation of the mandatory safety
standard in section 75.310(a)(3), 30 U.S.C. § 75.310(a)(3), that requires mine fans to be
equipped with an automatic warning device to signal when the fan ceases to operate. (Gov.
Ex. 2). Although Citation No. 7508622 initially alleged the cited violation was
unwarrantable, the citation was subsequently modified to reduce Left Fork's degree of
negligence from high to moderate, thus deleting the unwarrantable failure charge.
Goins designated the violation as significant and substantial (S&S) opining that it
was reasonably likely that a methane explosion and resultant serious injury will occur if
normal mining operations continued. Although the mine was inactive, Goins was concerned
that bum-related injuries could occur if methane leaked and migrated to pockets in the roof
from seals from
worked-out areas of the mine. In such an event, methane could be ignited by sparks
generated from roof-bolting the shale and sandstone material in the roof.
With respect to the fact of occurrence of the cited section 75.310(a)(3) violation,
Left Fork admits the fan signal device was not operational at the time of Goins' inspection.
Thus, the Secretary has demonstrated the fact of the violation. Turning to the S&S issue,
ordinarily, the absence of an operational warning signal to alert miners underground that
mine fan ventilation had been interrupted in an active mine undoubtedly would constitute an
S&S condition that was reasonably likely to contribute to serious injury.
As related by Goins, the discrete safety hazard contributed to by this violation was
the inability to recognize that, as a consequence of an interruption in ventilation, methane
could have escaped from seals and migrated to roof pockets in proximity to roof-bolting
operations. Resolution of whether a particular violation is significant and substantial must be
based on the particular facts surrounding the violation, including the nature of the mine
involved. Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal
Company, 9 FMSHRC 2007 (December 1987). In the present case, the mine is inactive and
it will remain so for the foreseeable future. Thus, there is no ongoing liberation of methane
as a result of mining operations. As the Commission noted in Texasgulf, "the key question
here is whether there was a reasonable likelihood that this hazard would result in an ignition
or an explosion." 10 FMSHRC at 501.

372

In other words, the question is whether it was likely that the absence of a ventilation
warning device would result in an ignition or explosion. The degree of likelihood of an
explosion is dependant on the likelihood of methane as a fuel source. Although almost
anything is possible, to prevail on the S&S issue, the Secretary must bear the burden of
demonstrating a likelihood of a methane explosion. Given the apparent history of no recent
methane liberation as a consequence of the mine's inactivity, as well as a reasonable
expectation of no methane liberation in the foreseeable future, it cannot be said that it is
reasonably likely that the hazard contributed to
by the cited violation of section 75.31 O(a)(3) will result in a mine ignition or explosion. Id.
at 503. In this regard, while not dispositive, it is noteworthy that Goins' air bottle samples,
collected both before and after the fan had been turned on, disclosed no traces of methane.
Consequently,

the significant and substantial designation in Citation No. 7508622 shall be deleted.
Although the violation is attributable to a moderate degree of negligence, given the low
gravity
of this non-S&S condition, a civil penalty of $55.00 shall be assessed.
B. Citation No. 7508623 - Two-Way Communications System
Based on her observations on the surface that the phone at the fan house had been
disconnected and that the security guard had told her that he unsuccessfully tried to telephone
underground "several times," Goins also issued Citation No. 7508623 citing an alleged S&S
violation of the provisions of section 75.1600, 30 C.F.R. § 75.1600. (Tr. 77-78, 81; Gov. Ex.
3). This mandatory standard requires, in pertinent part, that telephone service approved by
the Secretary shall be provided between the surface and each landing of main shafts and
slopes. Although Citation No. 7508623 also initially reflected the cited violation was
unwarrantable,
the citation later was modified to remove the unwarrantable allegation.
The issue is whether the two-way telecommunications system was operational on
October 18, 2000. Left Fork does not have to prove that the telephone system was working.
Rather, the Secretary, as the proponent, must demonstrate that the telephone system was not
working. It is undisputed that the telephone located at the fan house was disconnected and
that the closest surface telephone was in the hoist house approximately 50 feet away.
However, the Secretary does not contend that Left Fork's approved communications system
required a telephone at the fan house, or, that the surface and underground phone locations
were otherwise inadequate or in violation of the Secretary's regulations. (Tr. 227-29). The
fact that the fan house phone was disconnected is not material to whether the phone system
was operational. Although the fan house phone was reconnected to abate Citation No.
7508623, there is no evidence that any other telephone system repairs had been performed
before the citation was terminated by Goins the following morning on October 19, 2000.
(Tr. 89-92; Gov. Ex. 3, p.2).
In the final analysis, the evidence presented by the Secretary establishes that the
security guard was unable to contact the miners underground by telephone, not that the
phone
was not working. In essence, the Secretary has shown that neither Kelly nor Daniels
answered
the phone. Such an event permits two divergent inferences - - that, for whatever reason,
373

Kelly and Daniels "were not home" in that they did not answer the phone, or, that the phone
was not working. Who knows? Based on this evidentiary record, surely not the Secretary.
Accordingly, Citation No. 7508623 shall be vacated.
C. Citation No. 7508624 - Withdrawal from the Mine Within 15 Minutes
Section 75.313(c)(l), 30 C.F.R., 30 C.F.R. § 75.313(c)(l), provides that "if
ventilation is not restored within 15 minutes after a main mine fan stops ... everyone shall
be withdrawn from the mine." Based on her observations on the surface Goins concluded
Kelly and Daniels had not ceased roof-bolting and had not begun their withdrawal from the
mine within 15 minutes after the mine fan had stopped. Goins' conclusion was inferred from
facts known to her on the surface. Namely, Goins knew there was no mine fan warning
signal to alert the miners that the fan had stopped. In addition, the compressor on the surface
enabled the miners to continue roof-bolting despite the operational interruption of the fan.
Finally, Goins believed the fan had shut down at 12:00 noon and the miners had not reached
the surface until 1:30 p.m.
Consequently, Goins issued 104(d)(l) Citation No. 7508624 citing an alleged
violation
of section 75.3 13(c)(l). The violation was attributted to Left Fork's unwarrantable failure.
Citation No. 7508624 states:
The main mine fan system was not operating while two employee's (sic) were
underground working in the Return Slope performing roof bolt operations.
According to the Main Fan Chart the system went down at 12:00 noon. This
inspector observed the fan not operating at approximately 13 :00 hours.
Goins has no direct knowledge of the underground activities of Kelly and Daniels.
Contrary to their testimony, Goins concluded Kelly and Daniels continued to roof-bolt long
after the fan ceased operating. However, Goins' conclusion is inferred from contradictory
and erroneous facts, and, as such, it is not inherently reasonable. As a threshold matter,
Goins conceded that Kelly and Daniels immediately became aware of the fan's shutdown
when the roof dust generated by the drills was no longer being ventilated away from them.
Thus, the absence of a fan warning signal, the guard's failure to communicate from the
surface underground, and the energized compressor on the surface, do not provide a basis for
concluding that the men were unaware, or otherwise unconcerned, that the fan had stopped.
Moreover, Goins' conclusion that the men's arrival on the surface at 1:30 p.m. was
evidence that they did not timely begin their withdraw from the mine is based on Goins'
belief that the fan map reflected the fan had stopped at 12:00 noon. However, in fact, the fan
map reflects the fan stopped after 12:30 p.m. Thus, the miners' arrival on the surface at 1:30
p.m., less than
60 minutes after the fan stopped, rather than more than 90 minutes after the fan stopped as
Goins had assumed, is not evidence that supports the conclusion that their withdrawal was

374

untimely. 2 Accordingly, the Secretary has failed to carry her burden of establishing that it
was more likely than not that Kelly and Daniels delayed their withdrawal in violation of the
provisions of
section 75.313(c)(l). Thus, Citation No. 7508624 shall also be vac~ted.

ORDER
In view of the above, IT IS ORDERED THAT Citation Nos. 7508623 and 7508624

ARE VACATED.
IT IS FURTHER ORDERED THAT Citation No. 7508622 IS MODIFIED to
delete the significant and substantial designation, and, as modified, Citation No. 7508622
IS AFFIRMED.
IT IS FURTHER ORDERED THAT, Left Fork Mining, Inc., SHALL PAY a
$55.00 civil penalty in satisfaction of Citation No. 7508622 within 45 days of the date of
this decision. Upon timely receipt of payment, Docket No. KENT 2001-129 IS
DISMISSED.

Distribution:
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor,
2002 Richard Jones Road, Suite B-201, Nashville, TN 37215-2862 (Certified Mail)
Terry Nelson, Jr., Safety Director, Left Fork Mining, Inc., Post Office Box 311,
Brookside, KY 40801 (Certified Mail)
Terry Nelson, Jr., Safety Director, Left Fork Mining, Inc., Post Office Box 405,
Arjay, KY 40902 (Certified Mail)
/hs

2

The provisions of section 75.313(c)(I) do not require miners to withdraw until
15 minutes after the fan has stopped. Thus, the 1:30 p.m. arrival of Kelly and Daniels on the surface
occurred less than 45 minutes from the time they were required to start their departure from the mine.
375

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

April 16, 2002

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
On behalf of WILLIAM DENNY
GRIFFITTS,
Complainant
v.

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. VA 2002-32-D
NORT CD 2002-07

COALFIELD SERVICES, INC.,
Respondent

VP 8 Mine
Mine ID 44-03795 R58

DECISION
Appearances:

Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for the Secretary
Kurt J. Pomrenke, Esq., Coalfield Services, Inc., Bristol, Virginia,
for the Respondent

Before:

Judge Schroeder

Introduction
This matter is before me on the application filed by the Secretary on behalf of
Mr. William Denny Griffitts, a miner previously employed by Coalfield Services, Incorporated,
the Respondent. On March 26, 2002, the Respondent requested a hearing on the application.
The hearing was held in Abingdon, Virginia on April 5, 2002. Testimony was received and oral
arguments made. Because of the limited time available, post-hearing briefs were not submitted.

Backa:round
This case arises under the "whistle blower" section of the Federal Mine Safety Act,
section 105(c)(l). The law prohibits discrimination in employment on the basis of the exercise
of any right assured by the Mine Safety Act, and has been specifically interpreted to include
protection to persons that make reports or complaints of violations of safety requirements in the
376

operation of a mine subject to the jurisdiction of the Secretary. Secretary of Labor ex rel
Robinette v. United Castle Coal Co .. 3 FMSHRC 803 (April 1981). When a person submits a
complaint of discrimination under this section, the Secretary is required to perform an initial
investigation. If the investigation establishes to the satisfaction of the Secretary that the
complaint is "not frivolous", or "not clearly without merit", the Secretary is required to apply to
the Commission for a order temporarily returning the complaint to the status quo ante any
allegedly discriminatory action. Jim Walter Resources, Inc. v. FMSHRC. 920 F2d 738 (11th Cir.
1990) This order is limited in duration to permit the Secretary to complete a more thorough
investigation of the alleged discrimination and to decide whether to pursue more permanent
relief. This matter is not intended as a final determination of whether impermissible
discrimination occurred but rather whether the complaint is deserving of the temporary relief
sought by the Secretary in the application filed on March 26, 2002.

Factual Findings
At the hearing, the parties stipulated that the facts support the conclusion that the
Commission has jurisdiction to consider this application for temporary reinstatement.
Prior to Febmary 18, 2002, Mr. Griffitts had been employed by Coalfield Services for
more than 14 years. His nominal occupation is welder, but the variety of constmction and
maintance work done by his employer required him to perform a variety of functions. On
Febmary 18, 2002, Mr. Griffitts was a member of a small crew under the supervision of
Mr. Mike Powers assigned to replace metal liner plates in a chute which carried coal from a
production hoist to a conveyor belt to the processing plant. The plates are replaced periodically
because of the wear caused by the sliding of coal. To perform this work Mr. Griffitts climbed
up the inside of the chute to near the point coal is normally dumped into the chute. While
Mr. Griffitts was in this exposed location, the production hoist was activated and one of the skips
which carry coal to the chute entered the dump position. He observed a sheet of metal which
appeared to be loose in the skip. It appeared to him that with very little more movement of the
skip the metal sheet would be dumped into the chute and cause him serious injury, perhaps "cut
his legs off."
Mr. Powers later testified that the lining sheets in the skip were also in need of
replacement and may have come partially unfastened from the frame. He was of the opinion that
Mr. Griffitts was at no time in any actual danger. From the testimony as a whole I conclude
Mr. Griffitts had a reasonable belief that his health and safety were in immediate and serious
peril.
Mr. Griffitts exited the chute as quickly as possible and began to draw attention of those
present to his belief that he had been placed in danger by the operation of the hoist without
adequate communication and awareness of his exposure in the chute. His efforts to regain his

377

composure following this incident were unsuccessful. He went home after informing his
supervisor, Mr. Powers. As Mr. Griffitts was leaving the job site, Mr. Powers asked him whether
he would return the next day. Mr. Griffitts replied that he did not know when he would be back.
The following day, February 19, 2002, Mr. Griffitts made two telephone calls, one to the
Safety Director of Coalfield Services, and one to the Human Resources Director. He advised the
Safety Director of the danger he had been exposed to in the chute. He advised the Human
Resources Director that he would not be in to work and did not lmow when he would be able to
return to work.
On February 20, 2002, Mr. Griffitts went to work late and apparently did not call his
supervisor to advise him of the late arrival. He did call the local MSHA Office and reported his
concerns with the way the hoist was operated while he was in the chute to perform maintance
work. As a result of this call, the MSHA inspector normally responsible for this mine made a
visit to the mine to inquire into the incident. The inspector, who testified at the hearing, did not
identify the person responsible for the inspection. Mr. Powers, however, indicated he strongly
suspected Mr. Griffitts had called MSHA. He questioned Mr. Griffitts about that possibility and
Mr. Griffitts denied having made a call to MSHA.
Mr. Griffitts finished the work day on Febrnary 20, and worked his usual shift on both
February 21 and Febmary 22. After completing his shift on Febrnary 22, 2002, Mr. Griffitts
received a notice of suspension with the intention to terminate. The notice was a formality
required under a collective bargaining agreement with the UMW before a miner can be
discharged. The notice of suspension listed two reasons for discharge; (I) failure to report for
work, and (2) failure to follow company policy for notification of an absence from work.
Company policy on notification apparently included telephone notification of specified company
officials, including the Director of Human Resources.
On February 21, 2002, Coalfield Services had received a citation from the MSHA
inspector for the incident involving Mr. Griffitts on February 18. The citation did not identify
Mr. Griffitts as the complaining pa1ty.
Mr. Griffitts' termination became official on February 23, 2002.

I easily conclude the Secretary has established the elements of a discriminatory discharge
as tested under the "not frivolous" standard of Section 105(c). Mr. Griffitts exercised his right to
raise safety concerns of a reasonable nature to both company management and to MSHA. He
was discharged from his employment reasonably close in time to the exercise of this right. He
was discharged under circumstances in which a reasonable inference can be drawn that
management was aware of his exercise of this right.

378

Management response to the application for temporary reinstatement has two parts. First,
Coalfield Services argues business justification in failing to follow company policy on
notification of absence. This is embellished with unsupported references to prior similar
violations of company policy. Second, Coalfield Services claims it could not have discriminated
against Mr Griffitts since it did not know for certain that he had complained to MSHA until long
after the discharge became effective.
Applying again the "not frivolous" standard to these objections, it is reasonably clear that
Mr. Griffitts made a reasonable good faith effort to comply with company policy on notification
of absence from work. He called the corporate office and spoke to one of the people authorized
by company policy to receive such calls. While he was apparently vague on the period of
intended absence he did put the company on notice that he would be absent for reasons related to
the incident which he reported to the company as a safety concern. For the limited purpose of the
application for temporary reinstatement, the company has not established a compelling defense
on this point.
As to the time of knowledge on the part of Coalfield Services of the exercise of rights
under the Mine Safety Act, these rights are not limited to reports to MSHA. It is clear under
Commission precedent that a report to a supervisor or a report to a Safety Director is protected
activity. Coalfield Services knew long before it composed a discharge notice that Mr. Griffitts
had exercised these protected rights. Where an employee has exercised rights under the Mine
Act, management has a heavy burden of showing an independent business justification for
adverse action against the employee. Coalfield Services has not made a credible showing.of
business justification in this instance.

Order
For the reasons given above, the application for temporary reinstatement filed by the
Secretary on behalf of William Denny Griffitts is granted, and the Respondent Coalfield
Services, Inc., is directed to reinstate Mr. Griffitts in his prior position at his then rate of pay.
Reinstatement is to be effective on the date of this order and to continue until the Secretary
makes a final determination as to discrimination within the period afforded by the statute.
I,

Irwin Schroeder
Administrative Law Judge

379

Distribution:
Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd.,
Suite 516, Arlington, VA 22203 (Certified Mail)
Kurt J. Pomrenke, Esq., Elliott, Lawson and Pomrenke, 110 Piedmont Ave., P.O. Box 8400,
Bristol, Virginia 24203 (Certified Mail)
William D. Griffitts, P.O. Box 248, Saltville, VA 24370 (Certified Mail)
S. Scott Aker, President, Coalfield Services, Inc., 2942 Peppers Ferry Road, Wytheville,
VA 24382 (Certified Mail)

380

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

April 16, 2002
SECRETARY OF LABOR,
on behalf of RANDY LEE BENNETT,
Complainant

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEST 2002-292-DM
SC-MD-02-06

v.
SMASAL AGGREGATES,
Respondent

Cole Camp Sand & Gravel
Mine ID 23-02198

DECISION
Appearances:

John Rainwater, Esq., Office of the Solicitor, U.S. Department of
Labor, Denver, Colorado, for the Complainant;
Michael R. Roderman, Roderman Safety Associates, Inc.,
Salem, Missouri, for the Respondent.

Before:

Judge Feldman

This matter, heard on April 2, 2002, in Springfield, Missouri, is before me based on
an application for temporary reinstatement filed by the Secretary, pursuant to section
105(c)(2)
of the Federal Mine Safety and Health Act of 1977 (the Mine Act), 30 U.S.C. § 815(c)(2),
against Smasal Aggregates on behalf of Randy Lee Bennett. This statutory provision
prohibits operators from discharging or otherwise discriminating against miners who have
complained about alleged safety or health violations or who have engaged in other safety
related protected activity. Section 105(c)(2) of the Act authorizes the Secretary to apply to
the Commission for the temporary reinstatement of a miner pending the full resolution of the
merits of his discrimination complaint. Smasal Aggregates has stipulated that it is a mine
operator subject to the jurisdiction of the Mine Act.

I. Procedural Framework
As a general proposition, in order to prevail, a complainant has the burden of proving
a prima facie case of discrimination under section 105(c) of the Mine Act. In order to
establish a prima facie case, a complainant must demonstrate that he participated in safety
related activity protected by the Act, and, that the adverse action complained of was
motivated, in some part, by that protected activity. See Secretary on behalf ofDavid Pasula
v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980) rev'd on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981);

381

Secretary on behalfof Thomas Robinette v. United Castle Coal Co., 3 FMSHRC 803, 81718 (April 1981).
A mine operator may rebut a prima facie case by demonstrating, either that no
protected activity occurred, or, that the adverse action was not motivated in any part by
protected activity. Robinette, 3 FMSHRC at 818 n.20. An operator may also affirmatively
defend against a prima facie case by establishing that it was also motivated by unprotected
activity and that it would have taken the adverse action for the unprotected activity alone.
See also Jim Walter Resources, 920 F.2d 738, 750 (11th Cir. 1990), citing with approval
Eastern Associated Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v.
Stafford Construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719
F.2d 194, 195-96 (6th Cir. 1983) (specifically approving the Commission's Pasula-Robinette
test).
Unlike a trial on the merits in a discrimination complaint brought by the Secretary
where the Secretary bears the burden of proof by the preponderance of the evidence, the
scope of this temporary reinstatement proceeding is limited by statute. Section 105(c) of the
Mine Act as well as Commission Rule 44(c), 29 C.F.R. § 2700.44(c), limit the issue in an
application for temporary reinstatement to whether the subject discrimination complaint has
been "frivolously brought."
Rule 44(c) provides:
The scope of a hearing on an application for temporary reinstatement is
limited to a determination by the Judge as to whether the miner's complaint is
frivolously brought. The burden of proof shall be upon the Secretary to
establish that the complaint is not frivolously brought. In support of [her]
application for temporary reinstatement the Secretary may limit [her]
presentation to the testimony of the complainant. The respondent shall have
an opportunity to cross-examine any witnesses called by the Secretary and
may present testimony and documentary evidence in support of its position
that the complaint is frivolously brought.
In its decision in Jim Walter Resources The United States Court of Appeals noted the
"frivolously brought" standard is entirely different from the scrutiny applicable to a trial on
the merits of the underlying discrimination complaint. In this regard, the Court stated:
The legislative history of the Act defines the 'not frivolously brought
standard' as indicating whether a miner's 'complaint appears to have merit' -an interpretation that is strikingly similar to a reasonable cause standard.
[Citation omitted]. In a similar context involving the propriety of agency
actions seeking temporary relief, the former 5th Circuit construed the
'reasonable cause to believe' standard as meaning whether an agency's
'theories of law and fact are not insubstantial or frivolous.'
920 F.2d at 747 (emphasis in original) (citations omitted).

382

The Court further stated:
.. . Congress, in enacting the 'not frivolously brought' standard, clearly
intended that employers should bear a proportionately greater burden of the
risk of an erroneous decision in a temporary reinstatement proceeding. Any
material loss from a mistaken decision to temporarily reinstate a worker is
slight; the employer continues to retain the services of the miner pending a
final decision on the merits. Also, the erroneous deprivation of an employer's
right to control the makeup of his work force under section 105(c) is only a
temporary one that can be rectified by the Secretary's decision not to bring a
formal complaint or a decision on the merits in the employer's favor.

Id. at 748, n.11 (emphasis in original).
Although the focus here is extremely limited, the Supreme Court has articulated that
the narrow scope of these temporary reinstatement proceedings, as well as the minimal
statutory standard of proof required by the Secretary under section 105(c)(2) of the Act, far
exceed the Constitutional requirements of due process. Brock v. Roadway Express, Inc., 481
U.S. 252 (1987).
II. Statement of the Case
Consistent with the above discussion concerning the "not frivolously brought"
standard of proof, the issues presently before me are whether protected activity in fact
occurred, and, if so, whether the protected activity was reasonably contemporaneous with the
adverse action complained of. In this case, the protected activity relied upon by the Secretary
is the safety related complaint Bennett filed with the Mine Safety and Health Administration
(MSHA) on January 17, 2002. (Tr. 230). The Secretary alleges the adverse action that gives
rise to her application for reinstatement is Bennett's alleged termination on January 18, 2002,
by Leo Michael Smasal (Mike Smasal), President of Smasal Aggregates, allegedly motivated
by Bennett's MSHA complaint.
It is undisputed that Bennett's January 17, 2002, MSHA complaint was protected
activity. However, Smasal Aggregates contends that Bennett was not fired. Rather, Smasal
Aggregates insists that Bennett voluntarily quit his employment on the morning of January
17, 2002, before he complained to MSHA, when he elected to go home, rather than drive his
haulage truck more slowly, after he was repeatedly warned about his driving on January 15,
January 16 and January 17, 2002. Thus, the ultimate issue to be resolved in this limited
proceeding is whether Bennett's claims that he did not quit his job on January 17, 2002, and,
that he was fired on January 18, 2002, after filing a complaint with MSHA, are frivolous.

383

ill. Findings of Pact

Randy Lee Bennett has been employed by several operators in the mining industry
since 1996. Bennett's duties have included driving haulage trucks and operating backhoes
and front-end loaders. Bennett was hired by Smasal Aggregates as a haulage truck driver in
July 2000. Smasal Aggregates operates a limestone quarry. Smasal Aggregates also
operates the Cole Camp Sand and Gravel facility where portable sand and gravel is extracted
and crushed into concrete sand. Although the Smasal Aggregates' limestone quarry and the
Cole Camp Sand and Gravel operation have been assigned different MSHA mine l.D.
numbers, both facilities are co-located on the same property. Bennett was employed by
Smasal Aggregates but also performed work at the Cole Camp Sand and Gravel facility.
Bennett was recalled to resume work on Tuesday, January 8, 2002, by Mike Smasal
after a brief temporary layoff. Bennett was given the option of operating the bobcat that is
used to clean under the crusher, or operating the haulage truck. Bennett chose to drive the
haul truck because it had a heater. Bennett was assigned to drive truck No. 44, a 35-ton
Euclid. At all times relevant to this proceeding, Bennett was the only haulage truck driver
assigned to transport limestone and gravel material within the quarry facilities. Bennett
testified he drove his truck in fourth gear at speeds between 15 to 20 miles per hour fully
loaded. (Tr. 46). Smasal testified a safe truck speed was between five and ten miles per
hour. (Tr. 150).
Bennett's haulage route consisted of driving into the lime pit where lime material was
loaded into his haul truck by Connie Thornburg, the lime pit loader operator. Bennett then
drove the extracted lime material approximately Yz mile to the crusher where he backed the
truck up a ramp so that the material could be dumped from the truck into a hopper.
After unloading his truck, Bennett drove down the hopper ramp approximately 400
yards to the opposite end of the crusher where fine 'l4 inch rock and limestone material exits
the crusher on a conveyor belt. Bennett's truck was then loaded with material from the belt
by Charlie Birch, the beltline front-end loader operator.
Bennett then drove approximately ~ mile to the asphalt rock pile where he unload the
material from the belt. Bennett would then make another round trip from the beltline, where
Charlie Birch would fill another load, and then back to the asphalt rock pile. From the
asphalt rock pile, Bennett would drive back to Connie Thornburg at the lime pit to begin
another cycle of transporting limestone and crushed rock material. In other words, Bennett
received two truck loads of material at the beltline for every truck load of limestone material
he obtained at the lime pit. Bennett estimated that he completed three round-trip cycles per
hour, averaging approximately 24 cycles per eight hour workday.
On the morning of January 8, 2002, after turning the ignition of the Euclid No. 44
truck, Bennett heard a loss of air pressure when he released the parking brake. Bennett
reported the problem to mechanic Matt Castle and mine foreman Darrell Siercks. Bennett
testified Castle and Siercks told him the parking brake had been disconnected because it
wasn't working properly. Castle told Bennett he would repair the parking brake when he got
384

a chance. (Tr. 44-45). Bennett further testified that Castle and Siercks told him not to worry
about it because the service brakes worked well because new rear brakes recently had been
installed.
Bennett testified he did not refuse to drive the truck because he had to "feed [his]
kids and make [his] mortgage." (Tr. 40). Bennett drove his truck from Tuesday, January 8
through Friday, January 11, 2002, without incident. Bennett described an incident that
reportedly occurred on Monday, January 14, 2002, when his Euclid truck lurched forward
while on the asphalt rock pile despite the fact that he was firmly depressing the service brake
pedal. Bennett testified that he did not report this incident to Mile Smasal. (Tr. 48-49).
Moreover, as noted below, an MSHA inspection conducted on January 18, 2002, revealed
the service brakes were not defective.
Bennett admits that he was repeatedly warned about driving too fast on January 15,
16 and 17, 2002. Mike Smasal testified that on the morning of Tuesday, January 15, 2002,
Superintendent Larry Castle cautioned Bennett because Bennett was driving at excessive
speeds in the vicinity of the crusher. When Smasal arrived at work on Wednesday, January
16, 2002, Larry Castle informed Smasal that he complained to Bennett about his driving the
previous day. Matt Castle also told Smasal that he had cautioned Bennett to drive slower the
previous day. Upon receiving these complaints, at approximately 11 :00 a.m. on January 16
Smasal contacted Connie Thornburg at the lime pit by radio and instructed Thornburg to tell
Bennett to slow down. Thornburg testified that, consistent with Smasal's instructions, he
told Bennett that Smasal wanted him to drive more slowly. (Tr. 199). Bennett was again
warned by Matt Castle at 4:00 P.M. on January 16 to slow down.
Despite the warnings given to Bennett on January 15 and January 16, on the morning
of Thursday, January 17, 2002, Smasal personally observed Bennett driving too quickly and
he saw Bermett's truck slide around a comer of the quarry road. Smasal stated that he
attempted, to no avail, to flag Bennett down to warn him to slow down. Unable to stop
Bermett, at approximately 10:00 a.m. Smasal contacted Connie Thornburg at the lime pit by
radio and instructed Thornburg to tell Bennett "to slow the truck down or park it and go
home if he could not do so." (Tr. 145). Thornburg testified that he communicated Smasal's
ultimatum to Bennett. (Tr. 200). Bennett testified he was "frustrated" over the repeated
warnings he had received because he had tried to slow down by driving in third rather than
fourth gear. Thornburg testified Bermett said, "'F-it; I'll go home,' and he didn' t return to
the pit, so I just took it that he went home." (Tr. 201). Bennett parked his truck at
approximately 10:30 a.m. Before leaving the mine facility Bennett completed a preoperation inspection report dated January 17, 2002, reflecting the condition of the brakes on
truck #44 as "None[,] No Parking Brake." (Comp. Ex. 1).
After leaving the quarry, Bennett went to Mike Letourneau' s house. Letourneau is
Bennett's friend, and he was a former supervisor at Smasal Aggregates. Latoumeau also is
the husband of Diane Latourneau, Mike Smasal's secretary.
After leaving Latoumeau's house, at approximately 2:00 p.m. on January 17, 2002,
Bennett telephoned MSHA's Rolla, Missouri field office to report several alleged hazardous
385

conditions at Smasal Aggregates. Namely, Bennett complained about the #44 haul truck's
parking brake and service brake. Bennett also complained about a missing crusher guard,
equipment not being tagged out-of-service, and a wire from a generator that was exposed to
truck traffic.
Bennett did not report to work on Friday, January 18, 2002. Bennett asked his wife,
Christina, to telephone Smasal Aggregates to tell them he was not reporting for work.
Bennett went to Kansas City to look for a job.
At approximately 8:00 a.m. on January 18, Christina Bennett called Diane
Latourneau to tell her that her husband was going to Kansas City and that he would not be
reporting to work. (Tr. 185). Christina asked Latoumeau if she could take her husband's
paycheck home so that Bennett could pick it up at her house rather than go to the quarry.
Christina testified she asked Latoumeau to take her husband's paycheck because he would
not be able to return from Kansas City before the quarry closed. (Tr.88-89). Bennett
testified he wanted to pick his paycheck up at the Latourneau' s house because it was located
closer to his home than the quarry. (61-62). Latourneau told Christina that she would ask
Mike Smasal if she could take Bennett's check home.
At approximately 8:00 a.m. on January 18, at the same time Bennett apparently was
en route to Kansas City in search of another job, MSHA Inspector Rodney Lee Rice arrived
at Smasal Aggregates in response to Bennett's complaint. During his inspection, Rice
initially was accompanied by Darrell Siercks and later joined by Mike Smasal. Rice
inspected the #44 haul truck that had been driven by Bennett. Rice's inspection confirmed
that the parking brake had been disconnected. However, Rice determined that the service
brakes were not defective. In fact, Rice observed that the rear brakes locked before the front
brakes and he determined that a new set of rear brakes recently had been installed. Rice did
not find any guarding violations. There is no evidence that any of Bennett's other complaints
were confhmed during Rice' s inspection. Rice testified that it was obvious to Smasal that
Bennett was the source of the complaint because Bennett had driven truck #44 and he did not
report to work. Smasal admits he knew Bennett had complained to MSHA. (Tr. 171).
At approximately 2:00 p.m. Christina again telephoned Latourneau who told her
Bennett's "final paycheck" would be sent by certified mail. Christina told Loutoumeau that
her husband would telephone Smasal later in the <lay. (Tr. 186).
At approximately 3 :00 p.m., Smasal received a telephone call from Bennett.
Bennett's version of the telephone conversation is markedly different from Smasal's
recollection of the telephone conversation. Bennett alleges Smasal told him '"I'm firing you
- - or you quit"' because he walked off the job and because he complained to MSHA. (Tr.
64). Bennett testified that he told Smasal that he had not quit. (Tr. 62-64).
Contrary to Bennett's testimony, Smasal testified that the primary purpose of
Bennett's call was to inquire about his paycheck. Smasal stated he told Bennett he should
have slowed his truck down instead of quitting and going home at which time Bennett asked
if his unemployment would be contested. When Bennett was told that he could not get
386

unemployment because he had quit, Srnasal testified Bennett became disturbed and
threatened to make Smasal's life difficult. (159··61).
On January 25, 2002, Bennett filed the subject discrimination complaint with MSHA.
In his complaint Bennett asserts he was terminated on Januruy 18, 2002, because he
"complained about safety."

IV. Further Findings and Conclusions
As noted, the scope of this temporary reinstatement proceeding is extremely limited.
Specifically, the Secretary is not presently obliged to demonstrate that Bennett's complaint is
meritorious. Rather, the Secretary need only show that Bennett's claim is not frivolous.
It is undisputed that Smasal Aggregates was aware of Bennett's alleged protected
activity, i.e., his January 17, 2002, MSHA complaint. However, Bennett's Janua1y 17, 2002,
MSHA complaint is protected activity for the purposes of his complaint only if Bennett had
not already severed his employment relationship with Smasal Aggregates by walking off the
job. In this regard, the present record contains contradictory evidence concerning whether
Bennett's actions on January 17 and January 18, 2002, provide an adequate basis for
concluding that Bennett quit his job as Smasal Aggregates contends, or, whether Bennett was
fired.

Neve11heless, it is not the judge's duty to resolve conflicts in testimony at this
preliminary stage of this discrimination matter. Secretary on behalf ofEarl Charles Albu v.
Chicopee Coal Company, Inc., 21 FMSHRC 717, 719 (July 1999). I need only determine
whether Bennett's claim that he was fired is non-frivolous, not whether there is sufficient
evidence to justify Bennett's permanent reinstatement. Id. At this preliminary stage of this
discrimination proceeding I conclude that the Secretary has satisfied her very minimal
burden of demonstrating that Bennett should be temporarily reinstated.

387

ORDER
In view of the above, Smasal Aggregates IS DIRECTED to immediately reinstate
Randy Lee Bennett to the haulage truck driver position he held on January 17, 2002, or to a
substantially similar position, at the same rate of pay and benefits Bennett formerly received.
In ordering reinstatement, I am expressing no inclination regarding the ultimate outcome of
Bennett's underlying discrimination complaint. The Secretary should endeavor to complete,
as soon as is practicable, its investigation in this matter so that Bennett's discrimination
complaint may progress to a full evidentiary hearing on the merits.

Jerold Feldman
Administrative Law Judge
Distribution:
John Rainwater, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80201 (Certified Mail)
Michael R. Roderman, Consultant, Roderman Safety Associates, Inc., Rt. 6 Box 1954,
Salem, MO 65560 (Certified Mail)

/hs

388

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WASHINGTON, D. C. 20006-3867
Telephone No.: 202-653-5454
Telecopier No.: 202·653-5030

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

April 16, 2002
CIVIL PENALTY PROCEEDING
Docket No. YORK 2001-65-M
A. C. No. 19-01081-05502
Mine: Read Customs Soils

READ SAND & GRAVEL,
Respondent.

ORDER DENYING MOTION TO REOPEN
ORDER TO PAY
Before:

Judge Barbour

This case is before me pursuant to an order of the Commission dated October 23, 2001,
remanding this matter for further consideration and determination as to whether the operator,
Read Sand & Gravel ("Read"), is entitled to relief under Rule 60(b)(l) of the Federal Rules of
Civil Procedure. 1 Rule 60(b)(l) provides relief from a final judgment in cases where there has
been a "mistake, inadvertence, surprise, or excusable neglect."
This matter arose because Read failed to notify the Secretary that it wished to contest the
proposed penalty within 30 days of receipt of the proposed penalty assessment. In support of its
request to reopen, Read makes four assertions: (1) it does not own, control or manage the subject
property; (2) many of the violations exceed the scope of the Mine Act jurisdiction; (3) some of
the cited areas are outside of the mine area; and (4) the Mine Safety & Health Administration
("MSHA") did not contact the president and sole shareholder regarding visits, issues, or
violations. Letter Dated Feb. 26, 2001.
The Secretary filed a response to the request, arguing that the first three grounds proffered
by Read pertain to the substantive merits of the case rather than grounds for reopening the matter.
Secretary's Motion at 2. Further, the Secretary states that while the fourth ground may pertain to
reopening, Read did not provide sufficient evidence to enable the Secretary to dete1mine whether
reopening is warranted. Id. In addition, the Secretary notes that MSHA did receive a certified
mail receipt indicating that the assessment was received by Read. Id. at 2 n.2.

1

While the Commission is not obligated to adhere to the Federal Rules of Civil
Procedure, the Commission has found guidance and has applied "so far as practicable" Rule
60(b). See 29 C.F.R. § 2700.l(b).
389

Subsequently, on December 28, 2001, I issued an order requiring Read to submit more
information as to why it believes the case should be reopened within 30 days of the date of that
order. In particular, I instructed Read to explain why it believes MSHA's failure to contact its
president personally warrants reopening this matter. I did not receive Read's response within
that time, and, therefore, I issued a second order on February 20, 2002, in which I gave Read 20
days to file the information. Finally, on March 7, 2002, I received a letter from Read dated
March 4, 2002.

In the letter, Read president, Anthony P. Nickinello, asserts that on or about April 2000,
MSHA made an unannounced visit at the work site of A.D. Makepeace ("A.D."), a cranberry
grower for whom Read removed earthen materials from various locations. Nickinello states that
he purchased Read on January l , 2000, and continued the operation under the previous set of
rules and guidelines of A.D. He further claims an MSHA inspector began to direct Read
personnel towards presumed violations and continued to do so for several months without the
knowledge ofNickinello or A.D. personnel. NickineJlo contends he became aware of the
circumstances while on a site visit when a second MSHA inspector arrived to investigate prior
activity. The inspector, Nickinello further declares, informed him of the nature of the
inspections, provided a correction list, and issued orders, with which Read complied. Neither
A.D. management nor Read management, according to Nickinello, were informed by the
"department"2 that it would enforce mine safety regulations on an agricultural business. He
finally asserts that A.D. and Read meet health and safety regulations, regardless of the agency
responsible for ensuring compliance.
It appears that Read is questioning MSHA' s jurisdiction because A.D. is an agricultural
business and Read is its vendor. However, Read's response does not address the inquiry in my
Orders as to why Read did not timely notify the Secretary it wished to contest the proposed
penalty within 30 days of its assessment.

Accordingly, since Read has failed to address the issue, the request to reopen is
DENIED. Read is ORDERED to pay the full proposed penalty assessment of $944.00 within
30 days of the date of this order.3

._j)w;df Jlt:t~~
David F. Barbour
Chief Administrative Law Judge

2

I assume Nickinello means MSHA.

3

Payment may be sent to: MINE SAFETY AND HEALTH ADMINISTRATJON, U.S. DEPARTMENT OF LABOR,
PAYMENT OFFICE, P. 0. BOX 360250M, PITTSBURGH, PA 15251

390

Distribution:
W. Christian Schumann, Esq. , Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Blvd., Suite 400, Arlington, VA 22203 (Certified Mail)
Tyler T. Foster, Controller, Read Sand and Gravel, 171 VFW Drive, P. 0. Box 546, Rockland,
MA 02370 (Certified Mail)
Anthony P. Nickinello, ALM Custom Soils Inc. d/b/a Read Sand & Gravel, P. 0. Box 546,
Rockland, MA 02370 (Certified Mail)
dcp

391

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline. Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041

April 19, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
DONNIE LEE LOWE,
Complainant
v.

DISCRIMINATION PROCEEDING

ISLAND CREEK COAL COMPANY,
Respondent

VP#8 Mine
Mine ID 44-03795

Docket No. VA 2001-24-D
NORT CD 2000-04

DECISION
Appearances: Alfred R. Hernandez, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Complainant;
Stephen M. Hodges, Esq., and Eric R. Thiessen, Esq., Penn, Stuart & Eskridge,
Abingdon, Virginia, for Respondent.
Before:

Judge Hodgdon

This case is before me on a Complaint of Discrimination brought by the Secretary of
Labor, acting through her Mine Safety and Health Administration (MSHA), on behalf of Donnie
Lee Lowe, against Island Creek Coal Company, pursuant to section 105(c) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(c). A hearing was held in Abingdon, Virginia.
For the reasons set forth below, I find that Island Creek did not take any adverse action against
the Complainant because he engaged in activities protected under the Act.

The VP No. 8 Mine is a large, underground coal mine operated by Island Creek Coal
Company in Buchanan County, Virginia. It was created when the VP No. 5 and VP No. 6 mines
were connected in the middle. It has more than 37 miles of tunnels, approximately nine and one
half miles of electrified track and seven and one half miles of belt line. Coal is produced by two
continuous miner sections and one longwall section.
The mine can be entered by two portals, the Deskins portal and the Garden portal, which
are five and one half to six miles apart on the surface. Each portal has two shafts, an "A" shaft
for the removal of coal and a "B" shaft for the entry and exit of miners.

392

Underground traffic in the mine is controlled by a dispatcher located in an office on the
surface near the Garden portal. A dispatcher must be on duty at all times during a shift. There is
one dispatcher for each shift. Donnie Lee Lowe was the day shift dispatcher in April 2000. He
also was a miners' "walk-around representative." 1
On April 12, 2000, Lowe accompanied MSHA Inspector Ronald Blankenship on an
inspection as a walk-around representative. The inspection ended on the surface at the Garden
portal "B" shaft at 2:45 p.m. Shift foreman William Akers directed Lowe, through company
Safety Inspector Mike Canada, to finish out the shift shoveling coal along the belt line at the
bottom of the "A" shaft. Although he told Canada that he wanted to return to dispatching, Lowe
went down the "B" shaft and walked to the "A" shaft to perform the assigned work. By the time
he arrived the shift was over, so he never did any shoveling.

On April 13, 2000, Lowe served as a walk-around representative with MSHA Inspector
Randall Ball. The inspection terminated around 1:00 p.m. on the surface at the Garden portal.
Akers told Canada to take Lowe back to the belt line, to make sure that Lowe was properly task
trained in shoveling and to have him shovel the belt. Lowe shoveled for a short time until the
shift was over.
On April 14, 2000, Inspector Ball arrived at the Deskins portal to inspect the surface
areas. Lowe elected to serve as walk-around representative for the inspection. To do that he had
to travel from his office at the Garden portal to the Deskins portal. On the surface this would
have taken between 15 and 20 minutes. However, Lowe was advised that no surface
transportation was available so he had to travel through the mine by rail car which took a little
over an hour. When he arrived, the inspection had been completed. Akers assigned Lowe to
spot clean along the belt line near the Deskins "A" shaft.
On all three occasions, Lowe was replaced as dispatcher by Johnny Baker. At that time,
Baker's regular position was as a belt man, whose main job was shoveling along the belt line.
In his complaint filed with the Commission, Lowe claimed that the Respondent had
required him "to perform work that was more laborious than his typical job duties required, and
which [he] would not perform when he did not act as a representative ofminers."2 (Comp. at 2.)

1

Section 103 (f) of the Act, 30 U.S.C. § 813(£), provides that: "[A] representative of the
operator and a representative authorized by his miners shall be given an opportunity to
accompany the Secretary or his authorized representative during the physical inspection of any
coal or other mine ... for the purpose of aiding such inspection and to participate in pre- or postinspection conferences held at the mine."
2

Lowe's original discrimination complaint, filed with MSHA, was not included in any
of the pleadings in this matter, nor was it offered as an exhibit at the hearing.
393

He averred that these "actions by Respondent and its personnel constituted unlawful and
discriminatory conduct . .. ." 3 (Id.)

Findings of Fact and Conclusions of Law
Section 105(c)(l) of the Act, 30 U.S.C. § 815(c)(l), provides that a miner cannot be
discharged, discriminated against or interfered with in the exercise of his statutory rights because:
( 1) he "has filed or made a complaint under or related to this Act, including a complaint ... of an
alleged danger or safety or health violation;" (2) he "is the subject of medical evaluations and
potential transfer under a standard published pursuant to section 101;" (3) he "has instituted or
caused to be instituted any proceeding under or related to this Act or has testified or is about to
testify in any such proceeding;" or, (4) he has exercised "on behalf of himself or others .. . any
statutory right afforded by this Act."

In order to establish a prima facie case of disctimination under Section 105(c)(1) of the
Act, a complaining miner bears the burden of establishing (1) that he engaged in protected
activity and (2) that the adverse action complained of was motivated in any part by that activity.
Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (April 1998); Secretary on behalfof
Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981); Secretary on behalf of
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786(October1980), rev'd on other grounds sub
nom. Consolidation Coal Co. v. Marshall, 663 F .2d 1211 (3rd Cir. 1981 ). The operator may
rebut the prima facie case by showing either that no protected activity occurred or that the
adverse action was in no part motivated by the protected activity. Pasula, 2 FMSHRC at 2799800. If the operator cannot rebut the prima facie case in this manner, it nevertheless may defend
affirmatively by proving that it was also motivated by the miner's unprotected activity and would
have taken the adverse action for the unprotected activity alone. Id. at 2800; Robinette, 3
FMSHRC at 817-18; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th
Cir. 1987).
There can be no doubt that when he served as a walk-around representative, Lowe was
engaging in protected activity. Indeed, the Respondent does not dispute that fact. The issues to
be decided in this case, then, are whether Island Creek took any adverse actions against the
Complainant, and, if it did, whether it did so because he acted as a walk-around representative. I
find that while the Complainant may have shown that being required to shovel the belt line was
adverse, he has not met his burden of demonstrating that the adverse action was taken as the
result of his protected activity.

3

Lowe also alleged in the complaint that such discriminatory action took place when he
served as a miners' representative on April 19 and 20, 2002. However, those allegations were
withdrawn at the hearing. {Tr. 19-20.)
394

Was the Action Adverse?
The complainant asserts that because shoveling the belt line is harder work than being a
dispatcher and is more dangerous because it is underground, his temporary assignments to
perform that function after serving as walk-around representative constituted adverse action. He
relies on Secretary of Labor on behalfof Glover and Kehrer v. Consolidation Coal Co., 19
FMSHRC 1529 (September 1997), for this proposition.
In Glover, two long-time "scooter barn" mechanics were transferred to positions as
underground, section mechanics. Both had been serving as walk-around representatives, which
took up about two-thirds of their time while at the mine. They were initially informed that they
were being transferred because of their walk-around duties. Later, they were told that the
"official" reason for the transfers was to make the scooter barn more productive. In affirming the
judge's decision that they were discriminated against, the Commission held that "the transfer of
these two longstanding scooter barn mechanics to a more dangerous assignment on the section
was adverse." Id. at 1535.

There is, however, one major difference between this case and Glover. Lowe was not
transferred to the position of belt man, but was temporarily assigned to perform that function to
complete his shift after serving as a walk-around representative. In the first instance, there was
so little time left that he did not have to do any shoveling. The second time, he only worked for a
short while and the third time, while the evidence is not clear, it appears that he spent several
hours underground. While the permanent transfer to a more dangerous assignment may be
adverse, it does not necessarily follow that a temporary assignment to a more dangerous position
is adverse, particularly in an area like underground coal mining where almost all jobs are
dangerous and somewhat arduous.
Nonetheless, it is not necessary to decide whether having to shovel the belt line
constituted adverse action. Even giving the Complainant the benefit of the doubt and assuming
that it was adverse, he has failed to meet his burden of demonstrating that the action was taken
because he engaged in protected activity.

Did Lowe Establish a Prima Facie Case?
There is no doubt that Lowe would not have been assigned to shovel if he had not been
serving as walk-around representative. One ineluctably followed the other. But, that does not
mean that the task was given to him because he engaged in protected activity. For example, if
Lowe had gone from his dispatcher's position to perform some public relations function for the
company and was assigned to shovel belts when he returned, while the one would be the direct
result of the other, there could be no claim of discrimination because performing a public
relations function would not be engaging in protected activity. Thus, the Complainant must
demonstrate that his assignment was not merely because he had left his dispatcher's job to do

395

something else, but because he was engaging in the protected activity of serving as a walkaround representative.
Clearly, the reason for Lowe's assignment rests with Akers' intent or motivation at the
time he gave Lowe the assignments. Since it is obviously very hard to discern what a person is
thinking, the Commission has set out some guidelines for determining motivation. Thus, it
recently stated:
We have acknowledged the difficulty in establishing a
motivational nexus between protected activity and the adverse
action that is the subject of the complaint. "Direct evidence of
motivation is rarely encountered; more typically, the only available
evidence is indirect .... 'Intent is subjective and in many cases
the discrimination can be proven only by the use of circumstantial
evidence."' Secretary ofLabor on behalf of Chacon v. Phelps
Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd on other
grounds, 709 F.2d 86 (D.C. Cir. 1983) (quoting NLRB v. Melrose
Processing Co., 351 F.2d 693, 698 (8th Cir. 1965)). In Chacon,
we listed some of the circumstantial indicia of discriminatory
intent, including (1) knowledge of protected activity; (2) hostility
or animus towards the protected activity; and (3) coincidence in
time between the protected activity and the adverse action. Id.

Secretary on behalf ofBaier v. Durango Gravel, 21 FMSHRC 953, 957 (September 1999).
The Complainant has established that Akers knew that he had served as a walk-around
representative and that there was a coincidence in time between his serving as a walk-around
representative and the adverse action. This is sufficient to meet his burden of establishing a
primafacie case. To rebut this, the company has presented evidence to show that the adverse
action was not motivated by the protected activity.

Did Island Creek Rebut the Complainant's Prima Facie Case?
Akers testified that the reasons he assigned Lowe to shovel the belt, rather than returning
him to his job as dispatcher, were: "[R]eason number one, I had no vacancy as a dispatcher. That
position was already filled. Two, it just wasn't efficient to displace a second time a man that
could be working." (Tr. 164.) He also stated that he did not assign Lowe to belt cleaning duties
to punish him or to try to dissuade or discourage him from being a walk-around representative.
(Tr. 163.) Thus, the company asserts that it required Lowe to finish his shift in a position other
than dispatcher for business reasons and not to harass him because he had acted as a walk-around
representative.

396

As the Commission has long held, when a business justification is given as the reason for
an action, "[o )ur function is not to pass on the wisdom or fairness of such asserted business
justifications, but rather to determine whether they are credible and, if so, whether they would
have motivated the particular operator as claimed." Bradley v. Belva Coal Co., 4 FMSHRC 982,
993 (June 1982). In determining whether a business justification is credible, the Commission has
offered the following guidance:
Commission judges must often analyze the merits of an operator's
alleged business justification for the challenged adverse action. In
appropriate cases, they may conclude that the justification is so
weak, so implausible, or so out ofline with normal practice that it
was a mere pretext seized upon to cloak discriminatory motive.
But such inquiries must be restrained.
The Commission and its judges have neither the statutory
charter nor the specialized expertise to sit as a super grievance or
arbitration board meting out industrial equity. Once it appears that
a proffered business justification is not plainly incredible or
implausible, a finding of pretext is inappropriate. We and our
judges should not substitute for the operator's business judgment
our views on "good" business practice or on whether a particular
adverse action was ')ust" or "wise." The proper focus, pursuant to
Pasula, is on whether credible justification figured into the
motivation and, if it did, whether if would have led to the adverse
action apart from the miner's protected activities. If a proffered
justification survives pretext analysis . .. , then a limited
examination of its substantiality becomes appropriate. The
question, however, is not whether such a justification comports
with a judge's or our sense of fairness or enlightened business
practice. Rather, the narrow statutory question is whether the
reason was enough to have legitimately moved that operator to
[take the adverse action).
Chacon at 3 FMSHRC 2516-17 (citations omitted).

Finally, the Commission has cautioned that:
[T]he reference in Chacon to a "limited" and "restrained"
examination does not mean that such defenses should be examined
superficially or be approved automatically once offered. Rather,
we intend that a judge, in carefully analyzing such defenses, should
not substitute his business judgment or sense of "industrial justice"
for that of the operator.
397

Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (November 1982).
I find that Island Creek's averred business justification for the challenged adverse action
is entirely plausible and credible. Lowe occupied a unique position at the mine which accounts
for the company's actions toward him. Further, contrary to his assertions, Lowe was not treated
differently than other walk-around representatives. Finally, there is no evidence that the
company, generally, or Akers, specifically, had any animus or hostility toward walk-around
representatives.
Island Creek is required by MSHA to have a dispatcher on duty at all times. That meant
that when Lowe served as a walk-around representative, he had to be replaced. The company
asserts that it was inefficient to replace the replacement by returning Lowe to dispatcher at the
conclusion of his walk-around duties. No evidence was presented that any other walk-around
representatives occupied jobs that required the position to be filled at all times. Since Lowe
occupied the only position at the mine required to be performed at all times, the company's
justification must be viewed in that context. I find that in such a situation its actions were
reasonable.
Further, there is no evidence to show that Lowe was treated differently than other walkaround representatives. Johnny Baker and Danny Lyons both testified that they had served as
walk-around representatives. Baker, as has already been noted, was a belt man and Lyons was an
electrician. At the hearing, the Complainant attempted to show that he was treated differently
than they when serving as a walk-around representative. This attempt fails for two reasons. In
the first place, to show disparate treatment the Complainant would have to show that he was
treated differently than similarly situated miners, that is, miners who served in a position that
required that they be replaced when absent. Clearly, neither Baker nor Lyons served in such a
position and no evidence was offered concerning any other walk-around who did.
Secondly, neither Baker nor Lyons testified that they always returned to the same job they
had been performing before serving as a representative. When asked ifhe always returned to his
classified position, Baker responded: ''No, sir, not every time but most of the time I did go back
but not every single time." (Tr. 130.) He further related that he had done such things, after
completing his walk-around duties, as replacing a man at A shaft, picking up trash and moving a
motor, none of which were his classified duties. Lyons testified that he did not always return to
the particular job he was working on, but sometimes went to the electrical shop and performed
maintenance to finish his shift. (Tr. 150-51.)
Moreover, although both Baker and Lyons had served as a walk-around representative
numerous times, neither of them testified that they had ever had any adverse action taken against
them by the company for doing so. Nor was any evidence offered that either the company or

398

Akers had ever expressed any animosity or demonstrated any hostility toward walk-around
representatives. 4
Finally, the Complainant spent a lot of time at the hearing and in his brieftrying to
demonstrate that it would have been just as easy, if not easier, to return Lowe to his dispatcher
position as to have him return underground. To reach this conclusion, however, requires that the
judge substitute his business judgment, views of good business practice or notions of fairness for
that of the operator. This is precisely what the Commission has counseled against doing.
For the reasons discussed above, I find that Island Creek's justification for having Lowe
finish out his shifts on April 12, 13, and 14, 2000, shoveling the belt line was not so weak,
implausible or out of line with normal practice that it was a mere pretext to disguise the
company's discriminatory motive. Therefore, I conclude the Respondent has successfully
rebutted the Complainant's prima facie case.

Conclusion
There is no dispute that the Complainant engaged in protected activity. For the purposes
of this decision, it is also assumed that his being required to shovel the belts was adverse. In
addition, the Complainant has shown that Island Creek knew that he had engaged in protected
activity and that there was a coincidence in time between the protected activity and the adverse
action. However, the Respondent has rebutted the Complainant's claim of discrimination by
credibly showing that it had a non-discriminatory reason for requiring Lowe to finish his shifts
shoveling the belt line.

Order
Accordingly, since the Complainant has not established that the company took adverse
actions against him because he engaged in protected activity, it is ORDE~D that the complaint
filed by the Secretary of Labor on behalf of Donnie Lee Lowe against Island Creek Coal
Company is DISMISSED.

<-14/tf.~-

T. Todd Hod;d~T'"'
Administrative Law Judge

4

Baker and Lyons also testified that they were not aware of any animosity or hostility
directed toward Lowe as a walk-around representative. (Tr. 132, 153.)
399

Distribution: (Certified Mail)
Alfred R. Hernandez, Esq., U.S. Department of Labor, Office of the Solicitor, 4015 Wilson
Boulevard, Suite 516, Arlington, VA 22203
Eric R. Thiessen, Esq., Penn, Stuart & Eskridge, P.O. Box 2288, Abingdon, VA 24212

400

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

April22,2002
MIKE FLETCHER,

DISCRIMINATION PROCEEDING
Complainant
Docket No. WEST 2001-150-DM
WEMD00-11

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

MORRILL ASPHALT PAVING,
Respondent

FINAL DECISION
ORDER OF DISMISSAL

Appearances:

Larry Larson, Esq., Lukins & Annis, Moses Lake, Washington,
for Complainant;
Lewis L. Ellsworth, Esq., Gordon, Thomas, Honeywell, Malanca,
Peterson & Daheim, Tacoma, Washington, for Respondent.

Before:

Judge Manning

This case is before me on a complaint of discrimination brought by Mike Fletcher
against Morrill Asphalt Paving ("Morrill") under section 105(c)(3) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §815(c)(3) (the "Mine Act"). An evidentiary hearing was
held in Wenatchee, Washington. On February 22, 2002, I entered my decision on the merits
finding that Morrill discriminated against Fletcher in violation of the Mine Act. 24 FMSHRC
232. I directed the parties to confer and attempt to reach agreement on the relief to be awarded
Fletcher. Fletcher did not seek reinstatement, but sought back pay through November 14,
2000, when the crusher was shut down. After having conferred, the parties reached agreement
on all outstanding relief issues. On April 18, 2002, Fletcher filed a motion to dismiss this
proceeding on the basis that he received the monetary settlement from Morrill that the parties
agreed upon. The motion to dismiss is signed by Mr. Fletcher and his counsel.

401

ORDER
Settlement of this case to the satisfaction of Mr. Fletcher is in the public interest and it
complies with the requirements of the Mine Act. Because Morrill fully satisfied the terms of
the parties' agreed upon settlement, the motion to dismiss is GRANTED and this proceeding is
DISMISSED.

Distribution:

Larry Larson, Esq., Lukins & Annis, 1405 S Pioneer Way, Moses Lake, WA 98837 (Certified
Mail)
Lewis L. Ellsworth, Esq., Gordon, Thomas, Honeywell, P.O. Box 1157, Tacoma, WA 984011157 (Certified Mail)

RWM

402

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

April 29, 2002
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 2001 -528-M
A.C. No. 42-01912-05513
Docket No. WEST 2001-538-M
AC. No. 42-01912-05514

v.

Docket No. WEST 2001-557-M
A.C. No. 42-01912-05515

DARWIN STRATTON & SON, INC.,
Respondent

Airport Pit

DECISION
Appearances:

John Rainwater, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado, for Petitioner;
Johnpatrick Morgan, Hunicane, Utah, for Respondent.

Before:

Judge Manning

These cases are before me on petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (''MSHA''),
against Darwin Stratton & Son, Inc. ("Darwin Stratton"), pursuant to sections I 05 and 110 of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act").
An evidentiary hearing was held in St. George, Utah.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.

Preliminary Issues

Darwin Stratton operates at least three facilities in Washington County, Utah: the
Airport Pit, the Rattlesnake Pit, and a ready-mix plant. All of these facilities are in the vicinity
of Hurricane, Utah. At all times during these proceedings, Darwin Stratton was represented by
Johnpatrick Morgan. Although Mr. Morgan states that he lives in Hunicane, he has his mail
delivered to him via general delivery in Fredonia, Arizona, which is about 64 miles from
Hurricane. (Tr. 89). Mr. Morgan represented Darwin Stratton in two other sets of proceedings
before me. In those cases,

403

Mr. Morgan refused all mail that was sent by me and all mail from the Office of the Solicitor.
See Darwin Stratton & Son, Inc., 22 FMSHRC 1265, 1268-69 (Oct. 2000). 1 In the present
cases, Mr. Morgan accepted some of the mail that I sent him but still failed to pick up most
mail. The mail was returned by the postal service stamped "unclaimed." I questioned him
about that at the hearing and he replied that he will "become more diligent." (Tr. 90). I have
also been sending a copy of every mailing to the office of Darwin Stratton in Hurricane. Mr.
Morgan appeared at the hearing on behalf of Darwin Stratton, but he did not present any
witnesses other than himself. Mr. Morgan is not an attorney but he states that he is a friend of
the family that owns and operates Darwin Stratton. He apparently also has a financial interest
in Darwin Stratton. I permitted Mr. Morgan to represent Darwin Stratton at the hearing under
the authority of29 C.F.R. § 2700.3(b)(4).
Mr. Morgan's primary argument is that because the Airport Pit does not sell its products
in interstate commerce, the Department of Labor' s Mine Safety and Health Administration
("MSHA") is without jurisdiction to inspect it. Mr. Morgan does not deny that gravel is mined
and processed at the Airport Pit and that the Airport Pit is a mine. (Tr. 94,127). Rather, he
argues that all of the product is sold within Washington County, Utah, principally in and
around Hurricane and La Verkin. The material is sold to local contractors and residents. (Tr.
101). The material is used in residential and commercial construction. (Tr. 125-26). The
Secretary contends that MSHA does have jurisdiction because of the broad interpretation of
interstate commerce under the Mine Act.
I find that the Airport Pit is a "coal or other mine" as that term is used in section
3(A)(l) of the Mine Act. A coal or other mine is defined, in pertinent part, as "(A) an area of
land from which minerals are extracted . . ., (B) private ways and roads appurtenant to such
area, and (C) lands, excavations ... structures, facilities, equipment, machines, tools, or other
property ... on the surface or underground, used in, or to be used in, or resulting from, the
work of extracting minerals from their natural deposits, ... or used in ... the milling of such
minerals ...." 30 U.S.C. § 802(h)(l). The Senate Committee that drafted this definition
stated its intention that "what is considered to be a mine and to be regulated under this Act be
given the broadest possible interpretation, and ... that doubts be resolved in favor of inclusion
of a facility within the coverage of the Act." S. Rep. No. 181 , 95th Cong., l s1 Sess. 14 (1977),
reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., znd
Sess., Legislative History of the Federal Mine Safety and Health Act of 1977 at 602 (1978); see
also Donovan v. Carolina Stalite Co. , 734 F.2d 1547 (D. C. Cir. 1984). It is clear that the
Airport Pit fits within this definition. Rock is extracted from the pit and this material is sized
and crushed at the site. Some of the crushed rock and gravel is sold to customers and some of
it is further processed at Darwin Stratton' s ready-mix plant in Hurricane.

1

On November 24, 2000, I dismissed three other contest proceedings brought by Darwin
Stratton because it failed to respond to my orders. (Docket No. WEST 2000-589-RM etc).
Mr. Morgan also refused all mail service in those cases.
404

Section 4 of the Mine Act provides that "[e]ach coal or other mine, the products of
which enter commerce, or the operations or products of which affect commerce, and each
operator of such mine, and every miner in such mine shall be subject to the provisions of this
Act." This provision was enacted pursuant to Article I, Section 8, Clause 3 of the United States
Constitution, which states that "Congress shall have power to ... regulate commerce with
foreign nations, and among the several states, and with the fudian Tribes .... " Since the early
1940s, the commerce clause has been interpreted very broadly by the Supreme Court and the
inferior courts. For example, in Wickard v. Filburn, 317 U.S. 111, 125 (1942), the Supreme
Court held that the federal government' s power to regulate private economic activities under
the commerce clause is not confined to the regulation of commerce between the states, but
extends to a local activity if "it exerts a substantial economic effect on interstate commerce ...
." "Even activity that is purely intrastate in character may be regulated by Congress, where the
activity, combined with like conduct by others similarly situated, affects commerce among the
States .... " Fry v. United States, 421 U.S. 542, 547 (1975).
Congress and the courts have determined that mines, including quarries and pits, exert a
substantial economic effect on interstate commerce. fu Donovan v. Dewey, 452 U.S. 594, 602
(1981), the Supreme Court stated:
As an initial matter, it is undisputed that there is a substantial
federal interest in improving the health and safety conditions in
the nation's underground and surface mines. In enacting the
statute, Congress was plainly aware that the mining industry is
among the most hazardous in the country and that the poor health
and safety record of this industry has significant deleterious
effects on interstate commerce.
The Court relied upon the legislative history and the preamble to the Mine Act in reaching this
conclusion. In that case, the Court determined that MSHA had the authority to conduct a
warrantless inspection of a stone quarry that was located on private property in Wisconsin.
The circuit courts have uniformly recognized MSHA's authority to inspect mines under
the commerce clause. For example, in U.S. v. Lake, 985 F3d 265, 268 (61h Cir. 1993), the court
of appeals held that "the language of the [Mine] Act, its broad remedial purpose, and its
legislative history combine to convince us that Congress intended to exercise its full power
under the Commerce Clause." The machinery and equipment used to produce the products at
the Airport Pit were manufactured outside the State of Utah and the products of the pit are sold
to customers within Utah. {Tr. 28-29, 31 , 33, 35; Exs. G-2 through 5). Thus, the "operations
or products of (the Airport Pit] affect commerce." 30 U.S.C. § 803. I conclude that Darwin
Stratton's Airport Pit is subject to the provisions of the Mine Act. Consequently, the Secretary
has the authority to conduct warrantless inspections of this pit, to issue citations and orders for
violations of her safety and health regulations, and to propose civil penalties for those

405

violations. MSHA has been inspecting the Airport Pit since at least 1989 without interference
by Darwin Stratton.

B.

Individual Citations
1. WEST 2001-538-M, Citation No. 7966590

On August 2, 2000, MSHA Inspector Dennis Harsh issued Citation No. 7966590 to
Darwin Stratton alleging a violation of 30 C.F.R. § 50.30. The citation states that the
"Operator failed to complete and submit a quarterly mine employment report (7000-2) for the
second quarter of2000." The citation states that the report was due by July 15, 2000.
Inspector Harsh determined that the violation was neither serious nor significant and substantial
("S&S"), but that Darwin Stratton's negligence was high. Darwin Stratton sent the required
form to MSHA but, using rubber stamps, had placed the words "NOT ACCEPTED,"
"CANCELED," and "WITHOUT DISHONOR U.C.C. 3-505" on every page and it had not
submitted the requested information. (Ex. G-9). Section 50.30 provides, in part, that each
operator of a mine "in which an individual worked during any day of a calendar quarter shall
complete a MSHA Form 7000-2 in accordance with the instructions and criteria in§ 50.3-1
and submit the original to [MSHA] within 15 days after the end of such quarter." The
Secretary proposes a penalty of $500 for this alleged violation under her special assessment
regulations at 30 C.F.R. § 100.5.
Inspector Harsh was the Field Office Supervisor ofMSHA's Boulder City, Nevada,
office. Because he passed away, David Pennington, the current field office supervisor, testified
for the Secretary. (Tr. 77). The notes taken by Inspector Harsh indicate that when he went to
the Airport Pit on or about April 22, 2000, he observed the plant running and an employee
operating a loader. (Tr. 79-80; Ex. G-10 p.3). Inspector Pennington testified that Darwin
Stratton sent MSHA the form used for the quarterly report but that it contained no data and that
it had been marked with the rubber stamps described above. (Tr. 77-78, 80-81; Ex. G-9).
Inspector Pennington stated that because MSHA's records indicate that it has been inspecting
Darwin Stratton's Airport Pit since the late 1980s and had filed these reports in the past, the
company was familiar with the requirements of the regulation. (Tr. 81; Ex. G-6). He believes
that Darwin Stratton intentionally failed to file the required employment report.
Mr. Morgan testified that he submitted the form to MSHA with the rubber stamps on it
to notify MSHA that the mine was closed to further MSHA inspections. (Tr. 95). Mr. Morgan
believes that the relationship between Darwin Stratton and MSHA is a matter of contract and
that by sending in the uncompleted and stamped Form 7000-1, he was canceling the contract.
(Tr. 6, 61 , 105-06). On April 22, 2000, there was a fatal accident at Darwin Stratton' s nearby
Rattlesnake Pit. See 22 FMSHRC at 1267-68. When MSHA officials heard about the
accident, they proceeded to the Airport Pit because Darwin Stratton had never notified MSHA
of the existence of the Rattlesnake Pit. Darwin Stratton's actions in the present cases are
heavily influenced by MSHA's investigation of that accident. Mr. Morgan came to the
406

conclusion that the fatal accident was going to cost Daiwin Stratton over one million dollars.
(Tr. 121-22).
MSHA' s jurisdiction over the Airport Pit is not the result of a contract between Daiwin
Stratton and the Department of Labor. The Uniform Commercial Code does not apply to
MSHA or the Mine Act. Because the Secretary established that Daiwin Stratton failed to
submit the information required by section 50.30, a violation was established. The violation
was not serious.
I affirm the Secretary's allegation of high negligence because Daiwin Stratton was aware of the
requirement to file the employment information. Its failure to do so was a deliberate act on its
part. Daiwin Stratton voluntarily chose Mr. Morgan to be its representative in these cases, as
well as in the cases involving the Rattlesnake Pit. Mr. Morgan is misinformed as to the source
of MSHA's jurisdiction over the Airport Pit. I reduce the penalty for this citation to $200
because of the small size of Darwin Stratton and the Airport Pit.
2. Docket No. WEST 2001-557-M, Citation No. 7984337
On August 8, 2000, MSHA Inspector Stephen Wegner issued Citation No. 7984337 to
Daiwin Stratton alleging a violation of Section 103(a) of the Mine Act. The body of the
citation states as follows:
Mr. Clayton Stratton, President, and Pat Morgan, a consultant for
the company, refused to allow an authorized representative to
enter the mine. Mr. Pat Morgan had marked "CANCELED" on
the recent update to the legal Id for this property and had mailed
it to MSHA. Mr. Pat Morgan claimed this action canceled any
contract with MSHA. Mr. Stratton and Mr. Morgan were told
that refusal to allow the inspection was a violation of the
provisions of section 103(a) of the Mine Act.
Inspector Wegner determined that the violation was not S&S but that Darwin Stratton's
negligence was high. Section 103(a) of the Mine Act provides that authorized representatives
of the Department of Labor "shall make frequent inspections and investigations in coal or other
mines each year for the purpose of ... (4) determining whether there is compliance with the
mandatory health or safety standards or with any citation, order, or decision issued under .. .
this Act." The Secretary proposes a penalty of $2,500 for this alleged violation under her
special assessment regulations at 30 C.F.R. § 100.5.
As stated above, MSHA is authorized to inspect a mine without obtaining a search
warrant for the purpose of determining whether the mine operator is complying with the health
and safety standards. The failure to allow an MSHA inspector onto mine property is a violation
of the Act. There is no dispute that Darwin Stratton, at the direction of Mr. Morgan, refused to
allow Inspector Wegner onto the Airport Pit to conduct an inspection.
407

Mr. Morgan testified that he took this action because there was an error in the legal
identity report. Darwin Stratton had previously filed a legal identity report under 30 C.F.R. §
41.11 for the Airport Pit. When MSHA discovered that Darwin Stratton also operated the
Rattlesnake Pit during its investigation of the fatal accident, it required Darwin Stratton to file
two new legal identity reports: a revised one for the Airport Pit that showed that the company
also operated the Rattlesnake Pit and a new one for the Rattlesnake Pit. The Airport Pit and
Rattlesnake Pit have different identification numbers. When the forms were being filled out,
the identification number for the Airport Pit was inadvertently placed on both forms. This
mistake was immediately corrected by striking out the incorrect number on the form for the
Rattlesnake Pit and placing the correct number immediately above it. (Ex. R-1). For reasons
that I do not completely understand, this correction was not satisfactory to Mr. Morgan. He
testified that he advised Darwin Stratton to prohibit further inspections until a new legal
identity report was issued for the Rattlesnake Pit. In closing arguments he also stated that:
This is a small operator of a mine where there was written
documentation that the legal identity forms were completed and
done under force and fear; that there was intimidation, there was
harassment, there [were] tremendously bad feelings between the
operator and mine safety, and this is what precipitated these
actions.
(Tr. 142). Mr. Morgan did not explain how the operator was intimidated or harassed. (Tr. 11213). It may relate to the fact that MSHA required Darwin Stratton to execute these legal
identity reports during its investigation of the accident in which a family member of the owners
of Darwin Stratton was killed. See 22 FMSHRC at 1272. Mr. Morgan testified that the fact
that the identification number for the Rattlesnake Pit had been crossed out and rewritten
created "confusion on which was the Rattlesnake Pit and which the Airport Pit." (Tr. 96; Ex.
R-1 ).2 He further testified that he advised the company to prohibit any MSHA inspections until
he could get the "legal identity report reissued." (Tr. 97). He believed that the report with the
crossed out number was "inaccurate." (Tr. 97-99).
I find that the Secretary established a violation. It is clear that Darwin Stratton refused
to allow Inspector Wegner to conduct a regular annual inspection on August 2, 2000. MSHA
has been regularly inspecting the Airport Pit since at least 1989 and Darwin Stratton had never
interfered with an inspection in the past. The revised Legal Identity report for the Airport Pit
that was signed by Clayton Stratton in April 2000 did not contain any errors. Mr. Morgan
wrote "CANCELED" with a rubber stamp. The new legal identity report for the Rattlesnake

2

Inspector Wegner testified that Clayton Stratton's wife filled out the new legal identity
forms and made the correction to the Id. number on the Rattlesnake Pit form. (Tr. 131-33). Mr.
Morgan stated that Inspector Harsh changed the Id. number. (Tr. 134). Although the handwriting
for the corrected number appears different from the handwriting on the rest of the form, this
dispute does affect the outcome in this case because it does not matter who made the change.
408

Pit was initially filled out with the Id. number for the Airport Pit, but that number was
immediately crossed out and replaced with a new Id. number. It was signed by Clayton
Stratton on April 22, 2000. (Ex. R-1). Mr. Morgan's concern about these forms is difficult to
understand. The forms have no binding legal importance as far as MSHA's jurisdiction over
the two properties is concerned. MSHA issues legal identity numbers for accounting purposes.
It uses these numbers to identify mines and to track enforcement history at these mines. As
corrected, there were no errors on these forms. Even ifthere had been an error, Darwin
Stratton could have simply requested new blank forms from MSHA and sent then back by mail.
An error on a legal identity form does not provide justification to prevent MSHA from
conducting a safety and health inspection.
I agree that Darwin Stratton's negligence was high because Darwin Stratton was fully
aware ofMSHA's right to inspect the Airport Pit. Mr. Morgan's justification for the refusal is
illogical. Mr. Morgan's uninformed and ill-advised recommendation to prohibit the inspection
is attributable to Darwin Stratton because it voluntarily retained him to represent the company
in this proceeding. Nevertheless, I reduce the civil penalty to $1 ,000 because of the company's
small size and because the company prohibited the inspection based solely on Mr. Morgan's
recommendation. There is no indication in the record that Darwin Stratton had interfered with
an MSHA inspection in the past. I note, however, that Darwin Stratton prohibited another
MSHA inspection at a later date and, as a consequence, the Secretary brought an action seeking
a temporary and permanent injunction in the U.S. District Court for the District of Utah. That
action is still pending.
3. WEST 2001-528-M, Citation No. 6282323

On November 21, 2000, MSHA Inspector Manuel Palma issued Citation No. 6282323
to Darwin Stratton alleging a violation of 30 C.F.R. § 56. l 8002(a). The citation states that a
"competent person designated by the mine operator was not properly examining the crusher
plant area at least once every shift for conditions which could adversely affect safety or health."
The citation further states that the violation was "evidenced by the 11 citations issued for
failure [to conduct] a complete examination of working places." Inspector Palma determined
that the violation was S&S and that Darwin Stratton's negligence was moderate. Section
56.18002(a) provides, in part, that a "competent person designated by the operator shall
examine each working place at least once each shift for conditions which may adversely affect
safety or health." The Secretary proposes a penalty of $140 for this alleged violation.
Inspector Palma testified that he issued the citation because eleven citations had been
issued during the inspection. (Tr. 43; Ex. G-8). He understood that examinations were taking
place, he just believed that they were not thorough enough to comply with the safety standard.
He testified that "due to the numerous violations, I felt that perhaps the designated person
responsible was not doing a good job of doing a pre-shift exam in the mine property." (Tr. 3738, 42). That was his sole basis for issuing the citation. Mr. Morgan testified that this citation
was actually issued several months after November 21 , 2000. He states that Darwin Stratton
409

was served with the citation on or about February 22, 2001. (Tr. 105; Ex. R-2). Mr. Morgan
believes that this fact should invalidate the citation.

In order to determine whether a violation occurred, the requirements of the standard
must be examined. The Commission has identified three requirements of section 56.18002 as
follows: (1) daily workplace examinations are mandated for the purpose of identifying
workplace safety or health hazards; (2) the examinations must be made by a competent person;
and (3) a record of the examinations must be kept by the operator." FMC Wyoming Corp., 11
FMSHRC 1622, 1628 (September 1989). The record-keeping requirement is set forth in
subsection (b) of the standard. The Secretary defines a competent person as "a person having
the abilities and experience that fully qualify him to perform the duty to which he is assigned."
30 C.F.R. § 56.2.
There is no dispute that the citations issued by the inspector used to support the instant
citation were issued in "working places," as that term in defined in section 56.2. Inspector
Palma did not establish that Darwin Stratton had not conducted examinations of the working
places. He testified that he was advised by Daiwin Stratton that the examinations were being
done. (Tr. 43).
The Secretary did not introduce any evidence as to the competency ofDarwin Stratton's
examiner. The Commission held that the term "competent person" within the meaning of the
standard "must contemplate a person capable of recognizing hazards that are known by the
operator to be present in the work area or the presence of which is predictable in view of a
reasonably prudent person familiar with the mining industry." 11 FMSHRC at 1629. In FMC
Wyoming, the Commission determined that the examiner was not competent because he had no
training or experience in asbestos recognition and was assigned to examine areas in which
asbestos was being removed without his knowledge. In the present case, there is no evidence
as to whether Darwin Stratton's examiner was familiar with and could recognize safety hazards
that are typically present in a pit and crusher environment.
The mere fact that multiple citations are issued during an MSHA inspection is generally
not sufficient to establish a violation if the mine operator demonstrates that the examinations
were being conducted and the results of these examinations were being recorded. See
Dumbarton Quarry Associates, 21FMSHRC1132, 1136 (Oct. 1999) (ALJ Manning); Lopke
Quarries, Inc., 22 FMSHRC 899, 912 (July 2000) (ALJ Hodgdon). In this case, the mine
operator did not present any evidence to rebut the Secretary' s prima facie case. The fact that
the citation was actually issued later than the other citations during the inspection does not
provide sufficient grounds for vacating it. Consequently, I affirm this citation.
With one exception, all of the citations issued by Inspector Palma on November 21,
2000, that were presented by the Secretary at the hearing were designated as non-S&S. (Ex. G8). Two citations were issued because records of monthly fire extinguisher examinations were
not being kept. Another citation was issued because a sign was not present on the back of the

410

hopper warning employees that material is loaded into the hopper from the front side. Another
was issued because a breaker panel was not labeled to show what unit it controlled. Another
citation was issued for a defective parking brake on a front-end loader. The S&S citation states
that the brake lights on the same front-end loader were not working properly. Another citation
states that the back-up alarm was not working on a service truck, that is usually parked and is
seldom used. The final citation presented states that the compressed-air receiver vessel on the
service truck had not been inspected by a boiler and pressure vessel inspector in accordance
with the National Board Inspection Code. It appears that Darwin Stratton's examiner was not
qualified to perform the vessel inspection.
Most of these citations do not allege violations that were particularly serious. Many of
them cited conditions that were not obvious violations. Nevertheless, Darwin Stratton did not
present any evidence to rebut the Secretary's evidence as to the S&S nature of the violation.
Consequently, I hold that the Secretary established that the violation was S&S. Darwin
Stratton's negligence was moderate. I assess a penalty of $75 for this violation based on the
company's small size.

II. APPROPRIATE CIVIL PENALTIES
Section 11 O(i) of the Mine Act sets out six criteria to be considered in determining
appropriate civil penalties. I fmd that about four paid citations were issued at the Airport Pit
during the two years preceding August 8, 2000. (Ex. G-11 ). Darwin Stratton is a small
operator. Darwin Stratton did not present any evidence that the penalties assessed in this
decision will have an adverse effect on its ability to continue in business. With the exception
of Citation No. 7984337, the violations were abated in good faith. My findings with regard to
gravity and negligence are set forth above. Based on the penalty criteria, I find that the
penalties set forth below are appropriate.

III. ORDER
Based on the criteria in section l lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
Citation No.

30 C.F.R. §

WEST 2001-528-M
6282323

56.18002(a)

$75.00

50.30

200.00

WEST 2001 -538-M
7966590

411

WEST 2001-557-M
7984337

103(a) of Mine Act

$1,000.00

Total Penalty

$1,275.00

Accordingly, the citations contested in these cases are AFFIRMED as set forth above
and Darwin Stratton & Son, Inc., is ORDERED TO PAY the Secretary of Labor the sum of
$1,275.00 within 40 days of the date of this decision.

Richard W. Manning
Administrative Law Judge

Distribution:

John Rainwater, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550,
Denver, CO 80201-6550 (Certified Mail)
Johnpatrick Morgan, General Delivery, Fredonia, AZ 86022-9999 (Certified Mail)
Darwin Stratton & Son, 720 West State Street, Hurricane, UT 84737-2084 (Certified Mail)

RWM

412

ADMINISTRATIVE LAW JUDGE ORDERS

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

April 18, 2002
CONTEST PROCEEDINGS

CDK CONTRACTING COMPANY,
Contestant

Docket No. WEST 2001-420-RM
Order No. 7919016; 4/23/2001
Docket No. WEST 2001-421-RM
Order No. 7919017; 4/23/2001

v.
Docket No. WEST 2001-422-RM
Order No. 7919018; 4/23/01
Docket No. WEST 2001-423-RM
Order No. 7919019; 4/23/2001
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Docket No. WEST 2001-424-RM
Order No. 7919021; 4/23/2001
Docket No. WEST 2001-425-RM
Order No. 7919022; 4/23/2001
Docket No. WEST 2001-426-RM
Citation No. 7919023; 4/23/2001
Docket No. WEST 2001-427-RM
Citation No. 7919024; 4/23/2001
Docket No. WEST 2001-428-RM
Citation No. 7942519; 4/23/2001
Mine ID 05-00037 L35
Portland Plant/Quarry

ORDER GRANTING, IN PART. CONTESTANT'S
MOTION TO COMPEL PRODUCTION
CDK Contracting Company ("CDK") filed a motion to compel the Secretary to
produce a document entitled "Draft Fatal Accident at Holnam Cement Plant, Summary of
Physical Factors" in response to its discovery requests ("Physical Factors Summary"). The
Secretary withheld the Physical Factors Summary pursuant to the deliberative process
privilege.
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CDK asserts that the Physical Factors Summary contains relevant information that is
essential to the preparation of its defense in these cases. One of its employees fell to his death
while working at the Holnam Cement Plant, in Florence, Colorado. Employees of the Mine
Safety and Health Administration's ("MSHA") Technical Support branch provided assistance
to the supervisory MSHA inspector who investigated the accident. In his deposition, this
inspector testified that he relied on information contained in the Physical Factors Summary
when he issued the citations and orders at issue. CDK contends that the Physical Factors
Summary contains information that directly relates to the issues in these cases. It argues that
the deliberative process privilege does not apply to factual information contained in the
Physical Factors Summary and that it is therefore entitled to this information. In addition,
CDK argues that the reasoning behind MSHA's decision to issue citations in these cases is not
protected by the privilege. It maintains that the privilege protects personal opinions by agency
employees not policies adopted by the agency. CDK argues that, in any event, a document
loses its protected status once MSHA relies on the document when taking enforcement
actions. In the alternative, it asks for an in camera review of the Physical Factors Summary.
The Secretary opposes an in camera review and asks that I deny CDK's motion. The
Secretary provided CDK with a privilege log which states that the Physical Factors Summary
is "privileged pursuant to the deliberative process privilege." She contends that the privilege
protects communications between subordinates and supervisors that are antecedent to
adoption of agency policy. She states that the Physical Factors Summary is a four-page
document prepared by Michael Shaughnessy, an MSHA Mechanical Engineer, for review by
Ronald Pennington, an MSHA supervisory mine inspector. Mr. Shaughnessy was assigned to
evaluate the physical factors involved in the fatal accident. The Secretary further states that
Shaughnessy's Physical Factors Summary includes a "section describing the purpose of the
evaluation, an analysis and conclusion about the physical factors that contributed to the
fatality, and a section summarizing Mr. Shaughnessy's findings." (S. Response at 6). The
Physical Factors Summary was sent to Inspector Pennington before any citations or orders
were written and before MSHA issued its written report on the accident, which the Secretary
asserts "contains MSHA's final opinion about the contributing factors and causes of the fatal
accident investigated by Inspector Pennington's team." Id. She states that the contested
document was written in order to provide "Inspector Pennington with the perspective of a
mechanical engineer on the facts of the case prior to any decisions on citations and orders and
the Report of Investigation." Id. at 7.
Based on the above, the Secretary contends that the Physical Factors Summary is predecisional because it was submitted to the supervisory inspector before any enforcement
action was taken and before the final accident report was written. She states that it is
deliberative because it is the work product of a "subordinate team member" prepared for use
by the lead accident investigator ''who is charged with making final agency decisions." Id.
The Secretary argues that the Physical Factors Summary is "a pre-decisional recommendation
by a subordinate team member to an agency decision-maker who was free to accept or reject

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the factual conclusions contained within it." Id. at 8. The Secretary contends that CDK is free
to discover the reasons for any decision made by MSHA in these cases; it just cannot "pry into
the agency's internal deliberations." Id. at 9.
The Secretary also maintains that any facts contained in the Physical Factors Summary
are Shaughnessy's "interpretation of the facts, not the agency's." Id. As a consequence, the
Secretary contends that the any "facts" contained in the document are also deliberative. She
argues that the deliberative process privilege protects the ability of subordinates with
technical expertise to present to the agency's enforcement personnel their perspective on the
facts of a case without the fear that their view of the facts will be released in future litigation.
The Secretary also contends that an in camera review is unnecessary because the court can
determine that the privilege has been properly invoked without such an inspection.
ANALYSIS
The deliberative process privilege protects the "'consultative functions' of government
by maintaining the confidentiality of 'advisory opinions, recommendations, and deliberations
comprising part of a process by which governmental decisions and policies are formulated."'
Jordan v. U.S. Dept. ofJustice, 591 F.2d 753, 772 (DC Cir. 1978) (citations omitted). To be
covered by the privilege, the material must be both pre-decisional and deliberative. Purely
factual material that does not expose an agency's decision-making process is not covered by
the privilege unless it is so inextricably intertwined with the deliberative material that its
disclosure would compromise the confidentiality of the deliberative information that is
entitled to protection. It is the Secretary's burden to establish that the privilege applies to
material it seeks to protect from disclosure.
During his deposition, Inspector Pennington stated that he relied upon information
provided to him by Mr. Shaughnessy in the Physical Factors Summary when he issued the
citations and orders to CDK. (Pennington Dep. at 174). CDK contends that it is entitled to
review this factual information because it was part of the basis for the Secretary's enforcement
action. The Secretary maintains that even the factual portions of the Physical Factors
Summary represent "Shaughnessy's opinion on what the facts in this case were." (S.
Response at 9). The contested document merely contains Shaughnessy's "interpretation of the
facts" with the result that the document is protected by the privilege. Id.
The Secretary states that Inspector Pennington made the final decision to issue the
citations and orders in these cases. CDK is entitled to know what facts Inspector Pennington
relied on when he issued citations and orders, no matter what the source of these facts were. I
agree with the Secretary that Shaughnessy's "interpretation of the facts" is protected by the
privilege. If, however, fuspector Pennington relied on any of "Mr. Shaughnessy's facts"
when taking enforcement actions against CDK, then these facts are no longer protected
because the agency adopted these facts as its own findings when it took these enforcement
actions. See Newmont Gold Co., 18 FMSHRC 1532, 1535-37 (Aug. 1996) (ALJ).
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Relying on National Wildlife Federation v. US. Forest Service, 861 F.2d 1114 (9th Cir.
1998), the Secretary contends that the entire Physical Factors Summary is protected because
disclosing the document would expose MSHA's deliberative process to public scrutiny. In
that case, the court held that the issue was whether the contested documents were part of the
deliberative process of the agency not whether they were essentially deliberative or factual.
Id. at 1118. The court held, ''even if the content of a document is factual, if disclosure of the
document would expose 'the decision-making process itself to public scrutiny by revealing
the agency's 'evaluation and analysis of the multitudinous facts,' the document would
nevertheless be exempt from disclosure." Id. (citation omitted). Under this process-oriented
analysis, "documents containing nonbinding recommendations on law or policy would
continue to remain exempt from disclosure." In addition,
[f]actual materials .. . would likewise be exempt from
disclosure to the extent that they reveal the mental processes of
decision-makers. In other words, whenever the unveiling of
factual materials would be tantamount to the "publication of the
evaluation and analysis of the multitudinous facts" conducted by
the agency, the deliberative process applies.

Id. at 1119 (citation omitted). The Commission adopted this analysis, In Re: Contests of
Respirable Dust Sample Alteration Citations, 14 FMSHRC 987, 992-93 (June 1992).
The dispute over the deliberative process privilege arose under significantly different
circumstances in National Wildlife Federation ("NWF') than in the present cases. NWF
involved draft forest plans and draft environmental impact statements that were considered by
the agency when it developed a plan for the Wallowa-Whitman National Forest. Many
documents and parties were involved in the adoption of the forest plan. The present case
involves civil litigation that was initiated after the Secretary issued the citations and orders
against CDK. In issuing the citations and orders that engendered these cases, the Secretary
relied upon certain facts developed by Mr. Shaughnessy during his investigation. Disclosing
to CDK the facts that Inspector Pennington relied upon when issuing the citations will not
"reveal the mental processes of decision-makers." The Secretary does not dispute that CDK is
entitled to discover the reasons why she issued the citations and orders. Thus, the Secretary
will inevitably be revealing the mental processes that MSHA's decision-makers went through
when they concluded that CDK violated the agency's safety standards. Disclosing the facts
that Inspector Pennington relied upon will, at most, only reveal these same mental processes.
The document in question is a four-page summary prepared by Mr. Shaughnessy. Release of
the facts in the document that were relied upon by the agency in issuing the citations and
orders is not "tantamount to the publication of the evaluation and analysis of the multitudinous
facts conducted by the agency." In NWF, the agency voluntarily released portions of the
disputed documents and the District Court, after an in camera inspection, ordered that
additional portions be released. Id. at 1115-16. On review, the 9th Circuit held that the
remaining portions were protected by the privilege because release of the remaining portions
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would reveal the agency's deliberative process. Id. at 1123. The Secretary has not released
any portion of the Physical Factors Summary nor has she shown how the release of facts in the
document will reveal MSHA's deliberative processes. She opposes an in camera review.
I hold that CDK is entitled to those portions of the Physical Factors Summary that set
forth facts relied upon by MSHA when it issued the citations and orders at issue in these cases.
Although the Physical Factors Summary is pre-decisional, the facts relied upon by MSHA to
justify the issuance of the citations are not deliberative and the privilege does not apply. In her
response to the motion to compel, the Secretary stated that she will be calling Mr.
Shaughnessy as an expert witness at the evidentiary hearing and that she will produce an
expert witness report pursuant to Fed. R. Civ. P. 26(a)(2) when required by the administrative
law judge. Thus, as a practical matter, the Secretary will be disclosing prior to trial all of the
facts she is seeking to protect here. I find that CDK's need for the information far outweighs
the Secretary's interest in keeping it confidential.

ORDER
CDK's motion to compel the production of documents is GRANTED, but only to the
extent described in this order. It is ORDERED that counsel for the Secretary shall direct
Inspector Pennington to review the Physical Factors Summary and specify those portions of
the document that he relied upon when he determined that the subject citations and orders
should be issued to CDK. The Secretary may redact those portions of the Physical Factors
Summary that Inspector Pennington did not rely upon in issuing the citations and orders. The
opinions and nonbinding recommendations of Mr. Shaughnessy that were not factual in nature
need not be released. All information that is purely factual in nature must be released, even if
Inspector Pennington did not rely upon such facts. Counsel for the Secretary SHALL
PROVIDE to counsel for CDK, on or before May 15, 2002, those portions of the Physical
Factors Summary that I have held are not protected by the deliberative process privilege, as
described above. Except as set forth above, CDK's motion to compel the production of
documents is DENIED.

Richard W. Manning
Administrative Law Judge

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Distribution:

Karen L. Johnston, Esq., Jackson & Kelly,1099 l8 1h Street, Suite 2150, Denver, CO 80202
(Fax and First Class Mail)
Gregory W. Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box
46550, Denver, CO 80201-6550 (Fax and First Class Mail)

RWM

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