October 2017
TABLE OF CONTENTS

COMMISSION DECISIONS
10-05-17

CONSOL PENNSYLVANIA COAL
COMPANY

PENN 2013-385

Page 1893

10-19-17

NALLY & HAMILTON
ENTERPRISES, INC.

KENT 2012-749

Page 1938

COMMISSION ORDERS
10-10-17

A & G COAL CORPORATION

VA 2014-243

Page 1941

ADMINISTRATIVE LAW JUDGE DECISIONS
10-03-17

CONSOLIDATION COAL CO. now
THE OHIO COUNTY COAL CO.

WEVA 2016-0123

Page 1947

10-03-17

ARGUS ENERGY WV, LLC

WEVA 2017-0158

Page 1953

10-19-17

HEATHER MULFORD v.
ROBINSON NEVADA MINING
COMPANY

WEST 2017-0135DM

Page 1957

10-31-17

SEC. OF LABOR and JONATHAN
HOLSKEY v. PENNYRILE
ENERGY, LLC

KENT 2018-0004-D

Page 1979

i

ADMINISTRATIVE LAW JUDGE ORDERS
10-16-17

SEC. OF LABOR O/B/O LOUIS
SILVA JR. v. AGGREGATE
INDUSTRIES WRC, INC.

WEST 2017-0482DM

Page 1997

10-24-17

PANTHER CREEK MINING, LLC

WEVA 2017-426

Page 2001

10-26-17

CONSOL PENNSYLVANIA COAL
COMPANY LLC

PENN 2017-0222

Page 2003

10-26-17

KEITH MILLER, employed by OAK
GROVE RESOURCES, and CHASE
GUIN, formerly employed by OAK
GROVE RESOURCES, and
WILLIAM EDWARDS, employed by
OAK GROVE RESOURCES

SE 2017-0092

Page 2006

10-30-17

A&G COAL CORPORATION

VA 2014-243

Page 2009

ii

Review was granted in the following case during the month of October 2017:
Secretary of Labor v. A & G Coal Corporation, Docket Nos. VA 2014-243, et al. (Judge
Simonton, August 30, 2017)

Review was denied in the following cases during the month of October 2017:
Secretary of Labor obo Larry Groves v. Con-Ag, Inc., Docket No. LAKE 2017-117 DM (Judge
Miller, September 6, 2017)
Secretary of Labor obo Jeffery Reel v. The Monongalia County Coal Company, Docket No.
WEVA 2017-259 D (Judge Lewis, July 6, 2017) (Interlocutory Review)

iii

COMMISSION DECISIONS

39 FMSHRC Page 1892

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE NW, SUITE 520N
WASHINGTON, DC 20004-1710

October 5, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. PENN 2013-385

v.
CONSOL PENNSYLVANIA
COAL COMPANY
BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
BY THE COMMISSION:
This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). It involves a citation and order issued to Consol Pennsylvania
Coal Company (“Consol”) by the Department of Labor’s Mine Safety and Health Administration
(“MSHA”). The citation alleges a “significant and substantial” (“S&S”)1 violation of the safety
standard in 30 C.F.R. § 75.370(a)(1)2 because the operator failed to comply with its approved
mine ventilation plan’s directive to maintain the bleeders safe for travel.3 The order alleges an
S&S violation of the safety standard in 30 C.F.R. § 75.364(h)4 for the failure to note hazardous
accumulations of water in the record book. Both violations were alleged to be highly likely to
1

The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C.
§ 814(d)(1), which distinguishes as more serious any violation that “could significantly and
substantially contribute to the cause and effect of a . . . mine safety or health hazard.”
2

30 C.F.R. § 75.370(a)(1) provides that “[t]he operator shall develop and follow a
ventilation plan approved by the district manager. The plan shall be designed to control methane
and respirable dust and shall be suitable to the conditions and mining system at the mine.”
3

Page 4, Line AA, of the operator’s approved mine ventilation plan states that “[t]he
means for maintaining the bleeder safe for travel will include compressed air lines routed
underground, used in conjunction with air pumps to remove water as necessary to permit safe
travel through the perimeter of the bleeder system.” Gov’t Ex. 3 at 000009.
4

30 C.F.R. § 75.364(h) provides that “[a]t the completion of any shift during which a
portion of a weekly examination is conducted, a record of the results of each weekly
examination, including a record of hazardous conditions . . . found during each examination and
their locations, the corrective action taken . . . shall be made.”

39 FMSHRC Page 1893

result in fatal injury, the result of the operator’s high negligence, and an unwarrantable failure5 to
comply with the cited standard.
After a hearing, the Judge affirmed both violations and upheld the S&S, gravity, high
negligence, and unwarrantable failure designations. 37 FMSHRC 1616 (July 2015) (ALJ). The
Commission granted the operator’s petition for discretionary review challenging these findings.
The Commission:
1. Unanimously affirms the determination that the citation involved an S&S violation.
2. Remands by a majority vote the determinations of gravity, negligence, and
unwarrantable failure for the citation, the determinations of gravity and unwarrantable
failure for the order, and the penalty assessments for both violations.6 While
Commissioner Cohen joins the Acting Chairman and Commissioner Young in
remanding these issues, he writes separately on negligence for the citation and
unwarrantable failure for both the citation and the order.
3. Is evenly divided on the S&S and negligence determinations for the order. The Acting
Chairman and Commissioner Young would reverse the S&S determination and
remand the negligence determination for the order, while Commissioner Cohen joins
Commissioner Jordan in affirming both the S&S and negligence determinations.
Therefore, because there is no majority on these issues, the Judge’s determinations
shall stand as if affirmed. Pennsylvania Elec. Co., 12 FMSHRC 1562, 1563 (Aug.
1990), aff’d on other grounds, 969 F.2d 1501 (3d Cir. 1992).
The following opinion, by all four Commissioners, sets forth the factual and procedural
background and a single portion of the disposition where all four Commissioners unanimously
affirm that the citation involved an S&S violation.
Following this opinion, the Acting Chairman and Commissioner Young set forth their
separate opinion on the remaining issues, i.e., gravity, negligence and unwarrantable failure for
the citation, and S&S, gravity, negligence and unwarrantable failure for the order.
Following their opinion, Commissioner Jordan sets forth her separate opinion on the
issues of gravity, negligence, and unwarrantable failure for the citation, and S&S, gravity,
negligence and unwarrantable failure for the order.

5

The unwarrantable failure terminology is taken from section 104(d)(1) of the Act, 30
U.S.C. § 814(d)(1), which establishes more severe sanctions for any violation that is caused by
“an unwarrantable failure of [an] operator to comply with . . . mandatory health or safety
standards.”
6

The Judge who issued the decision has retired.

39 FMSHRC Page 1894

Following her opinion, Commissioner Cohen sets forth his separate opinion indicating
where he joins the Acting Chairman and Commissioner Young, where he joins Commissioner
Jordan, and where he writes separately from each Commissioner.
I.
Factual and Procedural Background
A. General Background
Consol operates the Enlow Fork Mine, a large underground coal mine in western
Pennsylvania. The mine is divided into numerous districts of longwall panels identified by letter
and subdivided by the numbered panels within that district. Each longwall panel runs east to west
for approximately two miles while the longwall face is approximately 1000 feet across.
The E-district bleeder system ventilates the mined-out E-15 to E-22 longwall panels.7 In
accordance with 30 C.F.R. § 75.364(a), the system must be examined weekly. During a bleeder
exam, an examiner is required to check the ventilation at designated evaluation points throughout
the bleeder. At the time of the violations herein, examiners walked the bleeders alone.8 37
FMSHRC at 1619.
The ventilation plan required that the examiner be able to pass safely throughout the
bleeder without being exposed to excessive accumulations of water. Water is cleared from the
bleeders by pumps. The operator’s ventilation plan permitted a system of 18-23 air pumps to
reroute water accumulations in the bleeders. These air pumps dumped water into a sump that was
10 to 11 feet deep. Two discharge lines transferred water from the sump to an underground
retaining pool.9 Id. at 1619-20. The operator also had a backup surface sump pump, which was
not included in the ventilation plan and which was used only during emergencies such as when
air pumps malfunctioned. Originally, the operator was required to activate the sump pump
manually, but a bubbler system later was installed to activate the pump automatically when water
reached a set level. The surface sump pump transferred water to three outdoor tanks with a total
combined capacity of 63,000-64,000 gallons. When the tanks were full, trucks would unload
them. Id. at 1621.
On November 20, 2012, MSHA Inspector Walter Young issued a citation to Consol after
he observed accumulations of water in the E bleeder district more than 36 inches deep in some
7

“Bleeder entries” are defined as “panel entries driven on a perimeter of a block of coal
being mined and maintained as exhaust airways to remove methane promptly from the working
faces to prevent buildup of high concentrations either at the face or in the main intake airways.”
Am. Geological Institute, Dictionary of Mining, Mineral, and Related Terms 55 (2d ed. 1997).
8

By the time of the hearing, a company-wide policy required bleeder examiners to travel

in pairs.
9

Historically, most water accumulations in the bleeder system have been clear, though
some could be cloudy, orange, and murky from magnetite and sulfur. Tr. 488-89.

39 FMSHRC Page 1895

areas. Gov’t Ex. 7. On December 10, 2012, Inspector Young again cited the operator for
accumulations of water in the E bleeder district; the depth of the water exceeded 24 inches in
certain areas. Gov’t Ex. 8. The inspector designated both violations as reasonably likely to result
in lost workdays and/or restricted duty. In the latter citation, the inspector informed the operator
that similar violations in the future might lead to greater enforcement action by MSHA. Gov’t
Ex. 8.
After the December 10 citation, Consol conducted additional exams in the bleeder. It also
installed a monitoring system for the surface sump pump. The computer monitors showed air
pressure in the bubbler rather than inches of water in the bleeders, and displayed visual alarms
when the sump pump was activated or when the surface tanks were full. 37 FMSHRC at 1624.
However, the monitoring system failed to work consistently, due in part to equipment failures.
For example, a power outage in the mine on February 1, 2013 might have caused the air pumps
to malfunction. The surface pump malfunctioned before February 5, 2013, the date of the citation
at issue, due to a hole in its bubbler tubing.
B. Events of February 5-6, 2013
Sometime before 4:00 a.m. on February 5, 2013, Dan Stalnaker, a certified examiner,
entered the E-15 side of the bleeder district.10 Stalnaker encountered an accumulation of water
near the E-15 sump; the water contained debris, gridlocks, and pieces of wood but was otherwise
relatively clear. Stalnaker donned chest waders that had been left in the mine, and attempted to
continue his examination. In total, he was able to take ventilation readings at three evaluation
points. He tried to bypass the water by traveling through a man door that was three feet high.
However, water poured into his waders when he bent over trying to pass through the doorway,
and his methane detector became wet. Stalnaker left the bleeder district between 4:00 and 4:30
a.m. and informed shift foreman Robert Price and mine foreman Mike Giavonelli that he could
not complete his bleeder exam because of the wet gas detector. 37 FMSHRC at 1630.
After Stalnaker reported the problem with the bleeder, Price and Giavonelli took separate
actions. Giavonelli sent a miner to check whether the surface sump pump was functioning
properly. The miner discovered that the surface pump was not running, and at approximately
5:05 a.m. he bypassed the bubbler, solving the problem. Meanwhile, Price instructed another
examiner, Kevin Saunders, to complete the bleeder exam by starting from the opposite direction
of the bleeders as Stalnaker. Id. at 1630-31.
Saunders entered the E-22 side of the bleeder district and traveled through water up to
three feet deep between E-21 and E-19. At 10:00 a.m., Saunders encountered waist-deep water
near the E-15 sump area that Stalnaker had intended to examine, and retreated before he could
complete the exam. Id. at 1631.
Stalnaker and Saunders combined to inspect all but two of the ventilation evaluation
points in the E bleeder district — the E tailgate overcast and the E tailgate #2 entry (which were
near the E-15 sump). Gov’t Ex. 3 at 000045; 37 FMSHRC at 1637. The entries in the record
10

Stalnaker was conducting the exam in place of Jamie Greene, the regular examiner for
the E bleeder district. 37 FMSHRC at 1629-30.

39 FMSHRC Page 1896

book for the overcast and #2 entry in the E tailgate were left blank. Despite this deficiency,
Foreman Giavonelli countersigned the record book. While Giavonelli was aware of the hazard
from a conversation with Stalnaker, it is undisputed that neither Giavonelli nor Stalnaker nor
Saunders noted the existence of hazardous water accumulations in the record book. 37 FMSHRC
at 1658-59.11
At around 10:00 a.m. on February 5, MSHA received a section 103(g)12 complaint
regarding water accumulation in the E bleeder district. Gov’t Ex. 3 at 000011. MSHA Inspector
William Gross, who was performing a regular quarterly inspection of the mine, was informed of
the complaint and began an inspection of the bleeders around E-15 through E-22 in the E bleeder
district sometime after 11:30 a.m. Gross and Consol employee John Brottish entered the bleeder
from the E-15 side. Gross found water ranging from 12 to 42 inches in depth, observing that it
was murky and obscured the walkway in some areas. He also noted that the area near the E-15
sump was completely flooded.13 Gross finished his inspection between 8:30 and 9:00 p.m. that
day. 37 FMSHRC at 1626-27. During Inspector Gross’ examination he walked with Brottish
virtually the entire length of the bleeder before eventually withdrawing as a result of deep water
at the E-15 sump area that Stalnaker had sought to inspect. During this inspection, Inspector
Gross and Brottish passed through and beyond the area of 36 inch water through which Saunders
had walked previously in the E-19 to E-21 area.
Inspector Young arrived at about 9 p.m. to relieve Gross and complete the inspection.
Young had previously cited similar violations in this area of the mine in November and
December of 2012. He testified that his policy was to cite the bleeder for hazardous
accumulations of water only when one of the following conditions was met: (1) water was taller
than his 18-inch boots, (2) water extended over a large area, (3) water was discolored, or (4)
water contained tripping hazards. Id. at 1624.
At around 11:00 p.m., Inspector Young spoke to Stalnaker and Saunders about their
examinations. Young entered the bleeder at about 2:00 a.m. on February 6. Young observed the
E-15 area but did not continue to the opposite side of the bleeder district; therefore, Young did
not observe the conditions in E-19 through E-22. Tr. 118. At E-15, Young checked the man door
11

The ventilation plan required a weekly examination of the bleeder. Therefore, the
operator had until midnight on February 5 to complete the examination.
12

Section 103(g) of the Mine Act provides that “[w]henever . . . a miner . . . has
reasonable grounds to believe that a violation of . . . a mandatory health or safety standard exists
. . . such miner . . . shall have a right to obtain an immediate inspection by giving notice to the
Secretary . . . of such violation.” 30 U.S.C § 813(g). The section 103(g) complaint stated as
follows: “I overheard firebosses saying that the E-15 bleeders [were] flooded today. Can this
cause ventilation problems and blow up the mine? Please look into this[.] [T]hanks.” Gov’t Ex. 3
at 000011.
13

As the Judge noted, Gross testified that if he had been alone, he would not have entered
the water because no one could have helped him if he fell. Later, after returning to the MSHA
office, Gross was verbally reprimanded by the assistant district manager for entering water that
deep.

39 FMSHRC Page 1897

Stalnaker had attempted to use on February 5 and found that the water was two feet deep, even
though the pump had been running for 20 hours by that time. After inspecting the E-15 area,
Inspector Young issued Citation No. 7024068 and Order No. 7024069 to the operator.14 37
FMSHRC at 1628-39. Young believed that the root cause of the water accumulations in the E
bleeder district was Consol’s failure to check the bleeder entries and equipment after the 12-hour
power outage earlier in the week. Id. at 1632. He was not aware, however, that Consol examiner
Greene had examined the bleeder the day before (February 4), and that the water had
accumulated after that examination. Id. at 1651.
The citation alleged a violation of 30 C.F.R. § 75.370(a)(1) for failure to comply with the
mine’s approved mine ventilation plan. The citation alleged that the bleeders were not
maintained for safe travel because there were accumulations of water from 12 to 42 inches in
depth, for a total distance of 2350 feet.15 Moreover, the citation noted that the mine floor in this
area could be irregular and contained rib sloughage and other tripping hazards. Gov’t Ex. 1; 37
FMSHRC at 1628-34. The order alleged a violation of 30 C.F.R. § 75.364(h) in that the
operator’s agents had failed to note the hazardous water accumulations in the record book.
Inspector Young designated both the citation and order as being S&S, highly likely to
cause two fatal injuries, and a result of the operator’s high negligence and unwarrantable failure
to comply with the cited standards. Tr. 126. MSHA proposed a penalty of $14,373 for the
citation and $14,743 for the order. 37 FMSHRC at 1661-62.
C. The Judge’s Decision
The Judge found that both the citation and order were S&S, highly likely to result in two
fatal injuries, and a result of the operator’s high negligence and unwarrantable failure. Consol
does not contest either finding of violation; it does contest the negligence, gravity, S&S,
unwarrantable, and penalty determinations.
The Judge found that the citation was properly designated as S&S and likely to result in
fatal injuries because a miner traveling alone might trip or stumble and drown in the deep water.
The Judge found that the citation was a result of high negligence because the operator knowingly
exposed examiners to the cited hazard. With regard to unwarrantable failure the Judge
determined that the cited hazard was extensive, obvious and posed a high degree of danger; that
the operator knew of the violation prior to Saunders’ exam; that the operator was on notice that
greater efforts were needed for compliance; and that the violation was a result of high
negligence. Id. at 1642-1654.
Regarding the order, the Judge determined it was properly designated as S&S and highly
likely to result in fatal injury because the failure to record the hazard made it likely that more
14

Sometime after Young arrived at the mine, Andy Yablonsky, an employee of the
operator, finished the ventilation exam including inspecting the two bleeder evaluation points
that neither Stalnaker nor Saunders were able to inspect. Therefore, Inspector Young did not cite
the operator for failing to complete a ventilation exam. 37 FMSHRC at 1638.
15

The distance was later amended from 2350 feet to 2250 feet. Gov’t Ex. 1 at 4.

39 FMSHRC Page 1898

miners would be exposed to the conditions described in the citation. The Judge affirmed high
negligence for the order because three examiners and foremen, who were aware of the hazard,
failed to note it in the record book. She affirmed the unwarrantable failure findings because the
citation was the result of an unwarrantable failure, and the relevant facts for the order were
identical. Id. at 1654-61.
II.
Disposition
A.

Citation No. 7024068
Significant and Substantial

Substantial evidence supports the Judge’s finding that the violation was significant and
substantial. A violation is S&S if, based on the particular facts surrounding the violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr.
1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission further explained:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard — that is, a measure of
danger to safety — contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.
Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir.
1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria).
Consol does not contest the finding that the accumulations of water violated the
ventilation plan’s requirement that the bleeders be maintained safe for travel, thus satisfying the
first element of the Mathies test.
The second element of the test, whether the violation contributed to a discrete safety
hazard, is also supported by substantial evidence. The bleeder district contained deep water with
various tripping hazards, including uneven floor and debris. Tr. 723-24. Stalnaker and Saunders
were exposed to these water accumulations. 37 FMSHRC at 1630. In walking through the water,
they both became extremely wet, and Stalnaker had his methane detector get wet and fail when
he attempted to climb through a mandoor. Id. Some of the water accumulations were so murky
that a miner would not be able to see his feet or tripping hazards as he walked through the water.
Tr. 121, 172, 312, 348, 354-56, 392-95, 411-12. Hence, it was reasonably likely that a miner
could trip and fall while walking through the water. Tr. 121-22, 143, 230.

39 FMSHRC Page 1899

Consol argues that the “hazard” identified in the second element of the Mathies test must
be a hazard contemplated by the standard, and that 30 C.F.R. § 75.370(a)(1) is directed at
ventilation issues, not tripping hazards.16 However, the determination of adequate ventilation in
the bleeder requires examinations on a weekly basis. Examinations presuppose that the
examiners will be able to safely travel to the places within the mine where the examinations must
be conducted. Thus, Paragraph AA of the Enlow Fork Mine’s approved ventilation plan requires
that the walkways in the bleeder entries be maintained in a manner safe for travel.
Tr. 56; Gov’t Ex. 1. The requirement of a safe travelway is inextricably intertwined with the
ventilation plan requirements of section 75.370.
As to the third element of the Mathies test, substantial evidence supports the finding of a
reasonable likelihood that the hazard contributed to would result in injury. The Judge credited
competent testimony that a miner who tripped and fell was, at a minimum, reasonably likely to
suffer reasonably serious injuries such as broken bones. Tr. 121-22.
A reasonable likelihood of broken bones satisfies the fourth element of Mathies. The
Commission has long recognized that broken bones and other injuries likely to result from a tripand-fall accident are sufficiently serious in nature to support an S&S designation. See, e.g.,
Maple Creek Mining, Inc., 27 FMSHRC 555, 562-63 (Aug. 2005) (affirming a Judge’s
conclusion that serious injuries such as leg or back injuries would arise from the failure to
maintain an escapeway in a safe condition); Buffalo Crushed Stone Inc., 19 FMSHRC 231, 238
n.9 (Feb. 1997) (concluding that slipping on a walkway would result in reasonably serious
injuries such as a finger or a wrist fracture); S. Ohio Coal Co., 13 FMSHRC 912, 918 (June
1991) (affirming a Judge’s conclusion that a trip-and-fall accident would result in reasonably
serious injuries such as “sprains, strains, or fractures”). A trip-and-fall accident resulting in
broken bones was especially serious here, where the bleeder examiner walked long distances by
himself over rough terrain, with no communications link to the surface or to any other miner. Tr.
36-39, 705-06; see 37 FMSHRC at 1622.
Consol notes an absence of previous injuries, the fact that only careful examiners entered
the area, and its rapid action to abate the condition. These facts, however, do not refute the
Judge’s S&S finding. The Commission has noted that “[t]he fact that injury has been avoided in
the past or in connection with a particular violation may be ‘fortunate, but not determinative’” of
the question of whether a violation was S&S. U.S. Steel Mining Co., 18 FMSHRC 862, 867
(June 1996) (quoting Ozark-Mahoning Co., 8 FMSHRC 190, 192 (Feb. 1986)). Further, the
exercise of caution is not an element in determining the likelihood of injury once the reasonable
likelihood of the occurrence of the hazard is established, because “[w]hile miners should, of
course, work cautiously, that admonition does not lessen the responsibility of operators, under
the Mine Act, to prevent unsafe working conditions.” Eagle Nest, Inc., 14 FMSHRC 1119, 1123

16

Consol relies on an ALJ decision in Oak Grove Resources, 34 FMSHRC 594 (Mar.
2012) (ALJ), but acknowledges that other Commission Judges have held to the contrary. See
Consolidation Coal Co., 15 FMSHRC 1408, 1413-15 (July 1993) (ALJ); Oak Grove Res., 35
FMSHRC 3039, 3052 (Sept. 2013) (ALJ).

39 FMSHRC Page 1900

(July 1992).17 Finally, when determining whether a violation is S&S, abatement after the
violation is cited should not be considered. Crimson Stone v. FMSHRC, 198 F.App’x. 846, 851
(11th Cir. 2006).
Substantial evidence and sound legal authority support the Judge’s conclusions.
Therefore, we affirm the finding that the violation was S&S.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

17

We have consistently emphasized that, in evaluating the risk of injury, the vagaries of
human conduct cannot be ignored. See Great W. Elec. Co., 5 FMSHRC 840, 842 (May 1983);
Lone Star Indus., 3 FMSHRC 2526, 2531 (Nov. 1981); Thompson Bros. Coal Co., 6 FMSHRC
2094, 2097 (Sept. 1984).

39 FMSHRC Page 1901

Opinion of Acting Chairman Althen and Commissioner Young:
A.

Citation No. 7024068
Gravity

We remand the gravity determination for a re-assessment of gravity. In doing so, we find
that substantial evidence does not support a finding of a high likelihood of a fatality. We do not
otherwise express an opinion on the assessment of gravity.
The Judge determined that the violation was highly likely to result in two fatal injuries,
agreeing with Inspector Young’s designation as to both likelihood and degree of injury. 37
FMSHRC 1616, 1662 (July 2015) (ALJ). In determining the gravity of a violation, Judges are
not bound to apply the tables in 30 C.F.R. Part 100, which the Secretary of Labor uses to propose
penalties based on a system of points for a multitude of factors. Rather, Judges must assess
penalties considering the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i). Instead of
narrowly parsing gravity determinations, we consider gravity holistically, considering “factors
such as the likelihood of injury, the severity of an injury if it occurs, and the number of miners
potentially affected.” Newtown Energy, Inc., 38 FMSHRC 2033, 2049 (Aug. 2016).
The finding of a high likelihood of two fatalities rests upon the testimony of Inspector
Young, who testified that a miner walking alone in water with tripping hazards and a depth of 36
inches or more in this bleeder was highly likely to fall, hit his head or otherwise become
incapacitated, and drown. Because two miners entered the water separately and from different
ends of the bleeder, the inspector asserted two miners would be potentially affected.
The Department of Labor’s Mine Safety and Health Administration (“MSHA”) allows
individual miners to examine bleeders. Every day individual miners examine bleeders by
themselves. Additionally, bleeders are generally wet. 37 FMSHRC at 1620. In fact, the
operator’s ventilation plan recognizes that water will accumulate in the bleeder, and only
requires its removal to the extent that water would prevent safe travel or affect ventilation. Gov’t
Ex. 3 at 000009. Only examiners who are experienced at going through bleeders perform the
weekly examinations. Except for repair work, no other miner may enter or has reason to enter a
bleeder.
At the same time, there is always the possibility that a miner walking in any part of a
mine will trip and fall. Without doubt, therefore, it is possible that a miner walking in a bleeder
with water in it could trip and fall. A fall in water by oneself without an ability to communicate
with others increases the danger from a fall.
On November 20, 2012 and December 10, 2012, Inspector Young cited the operator for
accumulations of water in this E-tailgate bleeder system. The citations noted that in certain areas
the depth of the water was as much as 36 inches in one citation and 24 inches in the other. The
water contained various tripping hazards. Gov’t Ex. 7. The inspector designated the violations as
significant and substantial (“S&S”). In those instances, however, Inspector Young marked the
gravity as reasonably likely to result in lost workdays and/or restricted duty. Id. Thus, these

39 FMSHRC Page 1902

citations were for the same bleeder and for similar (with the exception of the depth of the water
on December 10, 2012) conditions as the conditions on February 5.
The inspector issued the November 20 citation as low negligence, the December 12
citation as moderate negligence, and the citation in contest here as high negligence. Clearly, the
inspector responded to the repetition of the condition. The inspector did not distinguish the
danger in November and December from February 5.
Further, Inspector Young testified that MSHA permits miners examining bleeders to walk
in up to at least 18 inches of water. Tr. 46. As a matter of MSHA policy, therefore, an individual
miner examining a bleeder is considered safe when walking through 18 inches of water. Of
course, a miner knocked unconscious from a fall in the permissible 18 inches of water also
would be likely to drown. In light of the enforcement policy on 18 inches of water, it was
incumbent upon MSHA to explain why a miner is safe from drowning in 18 inches of water but
highly likely to drown in deeper water.
During his testimony, Inspector Young explained the possibility of a miner tripping in a
bleeder. He testified about objects in the water of the travelways such as pump lines and crib
blocks, and spoke of a trip and fall resulting in an examiner hitting his head. Tr. 121-23. Further,
Dan Stalnaker was wearing waders, which would have increased the difficulty of returning to a
standing position if a fall into water fills the waders.
Inspector Young testified that he had sought support for his gravity determination in
MSHA’s records. His research revealed only one drowning incident in a bleeder. MSHA, Report
of Investigation, Underground Coal Mine, Other (Drowning) Accident (2000). In that instance,
the cause of death was “drowning due to occlusive coronary artery disease.” The miner either fell
into a sump due to his condition or accidentally fell and was unable to get out due to the heart
condition. That sole incident, while tragic, does not support the notion that it is “highly likely” a
miner — let alone two miners — who are presumed safe in 18 inches of water, will drown in the
circumstances of this case.
Other than Inspector Young’s testimony, the Secretary did not present any evidence that a
miner is highly likely to drown in a bleeder. The inspector’s prior actions in not citing any
likelihood of a fatality from water in this bleeder appear inconsistent with his assertion of a high
likelihood of two fatalities from the February 5 violation. On the other hand, he did testify about
tripping hazards, the absence of communications, and the danger of being alone.
Accordingly, we have determined that substantial evidence does not support the Judge’s
determination of a “high likelihood” of fatal injuries to either or both examiners under the facts
presented in this case. Otherwise, as manifest from the foregoing discussion, the record is mixed.
The Judge’s findings do not satisfy her obligation to provide, in the gravity portion of the
decision, a reasoned basis from the totality of the record for the conclusion of a degree of injury
which could range from broken bones to a reasonable likelihood of a fatality. We therefore
remand for a determination of the gravity of the citation.

39 FMSHRC Page 1903

Negligence
As in the determination of gravity, the Commission and its Judges are not bound or even
significantly guided by the Secretary’s definitions of “negligence” in the penalty regulations set
forth in 30 C.F.R. Part 100. We thus reject the operator’s contention that a Commission Judge
may not find high negligence where the operator provides any mitigating circumstances for that
violation. See Mach Mining, LLC, 809 F.3d 1259 (D.C. Cir. 2016); Brody Mining, LLC, 37
FMSHRC 1687, 1701-03 (Aug. 2015) (“Commission Judges are not bound by the definitions in
Part 100 when considering an operator’s negligence . . . [and] may find ‘high negligence’ in spite
of mitigating circumstances . . . .”). Of course, we also reject any notion that the Judge must find
high negligence if he does not find a “mitigating” circumstance. Indeed, the Commission has
moved completely away from usage of the Part 100 definitions of negligence or any use of the
nebulous notion of “mitigation.” We employ “a traditional negligence analysis.” Mach Mining,
809 F.3d at 1264; American Coal Co., 39 FMSHRC 8, 14 (Jan. 2017). In assessing negligence,
the Judge must consider “what actions would have been taken under the same circumstances by a
reasonably prudent person familiar with the mining industry, the relevant facts, and the
protective purpose of the regulation.” Brody Mining, 37 FMSHRC at 1702.
Applying a traditional and holistic “reasonable person” negligence analysis to the case
before us, Consol Pennsylvania Coal Company (“Consol”) had “a duty of care to avoid
violations of mandatory standards, and the failure to do so can lead to a finding of negligence
when a violation occurs.” Leeco, Inc., 38 FMSHRC 1634, 1637 (July 2016)1 (citing A.H. Smith
Stone Co., 5 FMSHRC 13, 15 (Jan. 1983)). Because negligence relates to an operator’s duty of
care to avoid a violation, the “negligence inquiry [is] circumscribed by [the] scope of duties
imposed by [the] regulation violated.” Brody Mining, 37 FMSHRC at 1702 (citing Spartan
Mining Co., 30 FMSHRC 699, 708 (Aug. 2008)). When determining the level of negligence for a
violation of a ventilation plan provision, as is the case here, a “Judge must consider the actions
that a reasonably prudent operator would or would not have taken, under the circumstances
presented that are relevant to an operator’s obligation to comply with the ventilation plan
provisions in question.” Id. at 1703.
The Secretary proves negligence if he proves by a preponderance of the evidence that the
operator failed to act under the circumstances as a reasonably prudent operator familiar with the
mining industry, the relevant facts, and the protective purpose of the regulation.2 In this case, that
means the Secretary must prove that the actions taken by the operator after the prior
1

Leeco involved a fatality. The Commission found the operator was not negligent
because it had met the standard of care — that is, had acted as a reasonably prudent person
familiar with the mining industry, the relevant facts, and the protective purpose of the regulation.
2

The Commission requires the Secretary carry the burden of proving its allegations
against an operator holding, “[t]he burden of establishing an operator’s negligence under section
110(i), 30 U.S.C. § 820(i), rests on the Secretary.” U.S. Steel Mining Co., 8 FMSHRC 1284,
1290 (Sept. 1986); see also Jim Walter Res., Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ)
(“The Secretary’s burden is to prove the violations and related allegations, e.g., gravity and
negligence, by a preponderance of the evidence.”).

39 FMSHRC Page 1904

citations — installation of an automatic secondary pumping system with a bubbler, increased
examinations, installation of a monitoring system, etc., see infra, slip op. at 18 (discussing
efforts) — were insufficient to constitute the actions of a prudent operator. Of course, in a
negligence context, the Judge also must look at the reasonably foreseeable consequences of the
operator’s actions because the foreseeable consequences affect the duty of care.
If negligence exists, the Judge must deal with the degree of negligence. Here, again, the
Commission is not bound by the MSHA definitions and, certainly, not by definitions in Section
100.3. For example, the Commission finds high negligence when there is an “aggravated lack of
care that is more than ordinary negligence.” 37 FMSHRC at 1703 (quoting Topper Coal Co., 20
FMSHRC 344, 350 (Apr. 1998)). To prove high negligence, the Secretary must prove that the
operator’s actions after the prior citations demonstrate a level of negligence appreciably greater
than ordinary negligence — that is, aggravated misconduct. See Leeco, 38 FMSHRC at 1637-38;
Jim Walter Res., Inc., 36 FMSHRC 1972, 1976-77 (Aug. 2014); A.H. Smith Stone, 5 FMSHRC
at 15-16.3 In reviewing the Judge’s determination, therefore, we must determine whether
substantial evidence4 supports a finding that the accumulation of water in the bleeder on
February 5 resulted from an aggravated lack of care, taking into account all of the facts and
circumstances.
The Judge’s finding of high negligence rests at least in part on her finding that the
violation was highly likely to result in fatal injuries. As explained above, substantial evidence
does not support a high likelihood of fatalities. Furthermore, the Judge erred by not properly
considering evidence of the operator’s efforts to address the known propensity for water buildups
prior to February 5 — the date of this violation. Despite these errors, we do not find it
appropriate for us, at the Commission level, to designate the degree of negligence. We therefore
vacate and remand the negligence issue for reconsideration by the Judge in accordance with this
opinion.
First, regarding the role of the Judge’s gravity determination in the negligence
determination, we have long held that operators must address highly dangerous situations “with a
degree of care commensurate with that danger.” A.H. Smith Stone, 3 FMSHRC at 15. Certainly,
therefore, an operator must exercise a very high degree of care to avoid a violation that is highly
likely to result in one or more fatalities. However, as we have explained, substantial evidence
3

The use of “mitigation” essentially drops from the analysis under the reasonably
prudent person standard. Of course, actions that might constitute “mitigation” will play into the
reasonable person analysis, but negligence is not a question of whether the operator mitigated
negligence. The standard is what a reasonably prudent person would have done. If the operator
was negligent, then a question may arise whether the evidence demonstrates an aggravated lack
of care. Of course, the Secretary bears the burden of proof throughout the hearing. Even under
the Secretary’s definitions, the operator does not bear a burden of proving mitigation.
4

When reviewing a 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., 11 FMSHRC
2159, 2163 (Nov. 1989) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

39 FMSHRC Page 1905

does not support the Judge’s conclusion of a high likelihood of two fatalities. Inspector Young’s
prior citations put Consol on notice of a reasonable likelihood of broken bones, and we accept
the conclusion that there was a reasonable likelihood of a reasonably serious injury arising from
the hazard contributed to by the violation. However, “reasonable likelihood” is a term of art that
does not amount to a finding that the injury is “likely” in the standard sense, let alone “highly
likely.”
“Highly likely” demands evidence of probability exceeding even that used to demonstrate
that a condition constituted an imminent danger, or arose from a flagrant violation of a
mandatory standard. See 30 U.S.C. § 802(j) (imminent danger exists where death or serious
physical harm “could reasonably be expected” before abatement); 30 U.S.C. § 820(b)(1)
(flagrant violation requires violation to cause or reasonably be expected to cause death or serious
bodily injury).
Moreover, a reasonable likelihood of broken bones is significantly different from the
foreseeability of a likelihood of death. Thus, it was error for the Judge to premise a finding of
high negligence on her erroneous conclusion that it was highly likely that the violation would
result in two fatalities. At the same time, the violation was serious, and the negligence attributed
to the operator must take into account any reasonable foreseeability that miners would be
exposed to the hazard created by the water before the condition could be corrected. If an operator
willfully exposes its miners to a known hazard, a finding of high negligence is likely appropriate,
regardless of the prior efforts to prevent the hazard.
In this case, Stalnaker and Saunders unnecessarily exposed themselves to danger by
entering the water on February 5, 2013. 37 FMSHRC at 1630-31. Of course, reasonably
foreseeable consequences of one’s actions, including reasonably foreseeable injuries, play a role
in a negligence analysis. Therefore, if Consol should have reasonably foreseen the entry of
examiners into the water and the nature of any reasonably foreseeable injuries of such action, it
would be appropriate to take into account Stalnaker’s and Saunders’ entry into the water in
considering negligence of the operator in the buildup of the water. At the same time, for the
reasons set forth in the gravity discussion above, there was no reason for the operator to foresee a
“high likelihood” of fatalities — a type of injury that the very same inspector in recent citations
had not associated with high water in the bleeder.5
It is undisputed that Price, who received Stalnaker’s report in the early morning of
February 5, was aware of the hazardous water in E-15 prior to Saunders’ exam. However,
Stalnaker had only inspected the E-15 area. There is no basis for holding that Price knew there
were violative water accumulations in the opposite side of the E bleeder district, in E-22, the
place where Price instructed Saunders to begin his exam. The evidence therefore suggests that
Price did not instruct Saunders to travel through excessive water, but to complete the ventilation
exam using an alternate route which, to Price’s knowledge, did not contain excessive water, and
the Judge’s finding that a miner was exposed to a known hazard is not supported by substantial
evidence.
5

We need not decide at this point what, if any, role Inspector Gross’ voluntary walk
through the water may or should play in the reasonable foreseeability analysis.

39 FMSHRC Page 1906

Additionally, while the Judge did mention actions taken by Consol to address the issue of
water buildups after the prior citations and before February 5, she erred in rejecting outright any
importance of such actions in terms of reasonably prudent actions by a reasonably prudent
operator in response to the prior violations.6 The Judge should have analyzed the effect of the
operator’s pre-violation preventive efforts, the equipment failures that plagued the pumping
system, and abatement efforts following the discovery of the hazard.
Here, the Judge found significant actions by the operator after the prior citations and
before February 5. It is clear that the bubbler and the bubbler monitor at the surface pump were
actually operational before February 5 and that subsequent damage to tubes prevented them from
working effectively. Greene testified that “[t]he buffer [bubbler] system was an upgrade”
installed prior to February 5th (Greene was responding to a question about upgrades installed
before the remote monitoring system in the foreman’s office, which was installed shortly after
February 5). Tr. 521-22. William Batton, who worked for MVI, the contractor who serviced the
surface pump, agreed that on February 5, a gauge on the bubbler system would tell the depth of
water. Tr. 542. He also testified that, when called to the scene on the 5th, he found that the
bubbler tubes had been damaged from going down the borehole. He returned and installed new
tubes on the 7th. Tr. 534-35.
Further, the operator did not rely solely upon mechanical improvements. It also ordered
increased inspections of the bleeder for which only one inspection per week was required by the
standard. These extra inspections must be considered in the calculation of negligence. Indeed, the
Judge found that the regular bleeder inspector looked at the bleeder after the power outage and
did not find a presence of water. Based upon that finding, it appears that if the bubbler tube had
not developed holes, it presumably would have alerted the operator that the water level in the
sump was getting too high because (1) the readings on the monitor would have been accurate and
(2) the sump pump would have automatically activated.7
We agree with our colleague, Commissioner Cohen, that Stalnaker and Saunders entering
the water is essentially irrelevant to the determination of whether Consol’s effort to prevent the
accumulation of water was reasonable. Slip op. at 39. Stalnaker’s decision to enter the water is
only relevant to the evaluation of the foreseeability of an injury if evidence in the record
demonstrates it was foreseeable that a miner would enter more than 18 inches of water in an
effort to perform the required bleeder inspection. The Judge must evaluate the prudence of the
6

The Judge utilized the Part 100 standard of negligence and, therefore, considered the
operator’s actions in terms of “mitigation.” Of course, as we have said, the reasonably prudent
person test is holistic. Under that standard, rather than thinking in terms of “mitigation,”
adjudicators should think in terms of steps a reasonably prudent person would take under the
same or similar circumstances.
7

Preventive efforts included additional exams of the E bleeder district and a remote
monitoring system. Equipment failures included a power outage on February 1 that could have
shut down various air pumps and a surface pump hole in the bubbler line that caused the surface
pump to malfunction on February 5. Abatement efforts included Ciapetta fixing the surface sump
pump at 5:00 a.m. and trucks hauling away water from the mine starting at 7:00 a.m.

39 FMSHRC Page 1907

operator’s efforts to prevent an additional water accumulation in light of such foreseeability, if
any. We do not prejudge the Judge’s decision on remand.
The fact that water built up tells us that the operator’s efforts failed to prevent another
violation after the December citation; it does not tell us whether the efforts by the operator were
commensurate with what a reasonable person would have done in light of reasonably foreseeable
consequences or how far off the mark they were. The negligence question is whether the actions
of installing the bubbler, the bubbler monitoring systems, and increasing inspections suffice as
measures a prudent operator would have taken under the circumstances, i.e., with two prior
citations for water accumulations that might have resulted in lost workdays. Assuming Consol
was negligent, the next question would be whether the bubbler and monitoring systems and
increased inspections were so inadequate as to demonstrate an aggravated lack of care
warranting a finding of high negligence.
Unwarrantable Failure
The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.
§ 814(d). We have held that unwarrantable failure is aggravated conduct constituting more than
ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable
failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,”
“indifference,” or a “serious lack of reasonable care.” Id. at 2002-04; Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v. MSHA, 52 F.3d
133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure test).
Whether the conduct is “aggravated” in the context of unwarrantable failure is
determined by looking at all the facts and circumstances of each case, including (1) the extent of
the violative condition, (2) the length of time that it has existed, (3) whether the violation posed a
high risk of danger, (4) whether the violation was obvious, (5) the operator’s knowledge of the
existence of the violation, (6) the operator’s efforts in abating the violative condition, and (7)
whether the operator has been placed on notice that greater efforts are necessary for compliance.
Consolidation Coal Co., 35 FMSHRC 2326, 2330 (Aug. 2013); IO Coal Co., 31 FMSHRC 1346,
1350-57 (Dec. 2009). These factors must be viewed in the context of the factual circumstances of
each case. Consolidation Coal Co., 22 FMSRHC 340, 353 (Mar. 2000). A Judge may determine,
in his or her discretion, that some factors are not relevant or may determine that some factors are
less important than other factors under the circumstances. Brody Mining, 37 FMSHRC at 1692.
Although a separate analysis, the determination of unwarrantable failure essentially
embodies a combined analysis of gravity and negligence considerations. For example, when
evaluating whether the violation posed a high risk of danger, the Judge must consider whether
the Secretary demonstrated it was reasonably foreseeable that miners would enter deeper water.
Further, the Judge did not sufficiently consider the broken discharge lines, the malfunctioning
bubbler, or the mine’s efforts to prevent the flooding through additional inspections, and she
discounted the operator’s prior efforts to deal with water and the various apparently

39 FMSHRC Page 1908

unanticipated mechanical failures. See 37 FMSHRC at 1650. The Judge lost sight of the ultimate
aim of the unwarrantable failure designation. As the Commission has said:
We conclude that the judge erred in finding unwarrantable failure
based on the operator's “failure to leave any stone unturned” and
take “every conceivable step” in attempting to eliminate the
violations. The judge, after referring to the proper standard for
unwarrantable failure set forth in Commission precedent, failed to
apply it. In effect, he imposed a standard for unwarrantable failure
close to one of strict liability.
Peabody Coal Co., 18 FMSHRC 494, 498 (Apr. 1996) (citation omitted).
The Commission has stated that “a judge’s factual findings are often colored by the legal
standard applied.” Dolan v. F & E Erection Co., 22 FMSHRC 171, 180 n.10 (Feb. 2000). This is
borne out by consideration of the seven factors underlying the Judge’s unwarrantable failure
analysis in this case.
a. Degree of danger
The Judge found that the degree of danger was a high likelihood of two fatalities. 37
FMSHRC at 1651-52. For the reasons set forth above in the gravity discussion, substantial
evidence does not support a high likelihood of two fatalities. Consequently, the Judge’s
unwarrantable failure analysis significantly overstates the degree of danger. This error, standing
alone, dictates remand.8
b. Length of Time
Under the Commission’s unwarrantable failure legal standard, “a Judge may determine,
in his or her discretion, ‘that some factors are not relevant, or may determine that some factors
are much less important than other factors under the circumstances,’” as long as the Judge
considers all of the factors. Brody Mining, 37 FMSHRC at 1692 (quoting IO Coal Co., 31
FMSHRC at 1351). The Judge found that “the accumulation likely occurred sometime after
Greene’s last examination, which was less than 48 hours from the time the citation was written.”
37 FMSHRC at 1651.
8

We are greatly concerned by the incaution exercised by the Secretary and the Judge in
designating these violations as “highly likely” to result in a fatal injury. Overcharging and
hyperbole in this context breed disrespect for the law and skew the perspective one must employ
in discerning merely serious violations from those where the specter of death was truly clear and
present. Violations that should have been reasonably foreseen as creating a grave and imminent
risk of death or serious bodily injury must be dealt with severely to deter similar transgressions.
In such cases, the operator is under a duty to take timely and aggressive actions to prevent miners
from being exposed to a deadly hazard caused or contributed to by the violation. It is apparent
that the misperception of the danger here infected the Judge’s evaluation of the operator’s
culpability.

39 FMSHRC Page 1909

Based upon the Judge’s findings, the violation arose after Greene’s last examination, and
the operator learned of the violation when Stalnaker found water deeper than 18 inches. On
remand, the Judge must consider the length of time the violation existed as part of her
unwarrantable failure analysis.
c. Extent
The Judge found that the water stretched for 400 feet at the 47 crosscut (at a depth of 12
to 42 inches) and from 1,800 feet (at a depth of 12 to 36 inches) between E-19 and E-21. 37
FMSHRC at 1651. However, the Judge also noted that the water in some locations was only a
few inches deep. Id. The Judge erred by taking into account the entire length of the bleeder
because in doing so, she considered non-violative areas.9
d. Notice that Greater Efforts Were Necessary
The Commission has recognized that past violations and discussions with MSHA about a
problem are relevant to whether an operator was on notice that greater efforts were necessary to
comply with a standard. IO Coal, 31 FMSHRC at 1353. Without question, the operator was on
notice due to its prior citations for the same condition and Inspector Young’s explicit notice. 37
FMSHRC 1652-53. The operator presented evidence of increased efforts, but the Judge stated
that “[w]hile it is true that at some point, efforts made after notice should ‘restart the clock’ on
notice, the inadequate efforts made by Respondent were not sufficient to do so in this case.” Id.
at 1653. The Judge referred to her prior discussion of the monitoring system, in which she held
that “[a]ctions are not mitigation when they are inadequate to the task of preventing, correcting,
or limiting exposure.” Id. at 1650.
The Judge cited two decisions by other Judges for that proposition, each of which was
decided under different circumstances. Further, the Judge failed to consider the reasonableness of
the preventive measures in light of the fact that the bubbler line encountered a leak preventing it
from being effective.
Here, the mine installed an automatic secondary pumping system and a bubbler. It began
daily monitoring of the water level through the bubbler’s readout, but the bubbler gave false
readings because a hole in the bubbler’s hose prevented accurate measurement of the water level.
The recurrence of a violation in which the operator, despite notice, did nothing is not the same as
9

The Judge’s factual finding underlying her conclusion was wrong, as Commissioner
Cohen acknowledges. Slip op. at 41 n.7. But her analysis also misapprehends the relevance of
the extent of the water to a finding on the question of unwarrantable failure, i.e., whether the
extent of the water gave Consol more reason to have discovered it or reflects on the
reasonableness of its actions in attempting to prevent the accumulation. The Judge found that the
accumulation occurred less than 48 hours before citation was issued. 37 FMSHRC at 1651. More
importantly, the evidence is positive that Consol had met or exceeded inspection requirements
during the week preceding the accumulation. Therefore, we think that a reasonable Judge could
find that the extensiveness of the water accumulation is of little, if any assistance in determining
whether Consol’s violation — namely, the buildup of water in the bleeder — was the result of an
unwarrantable failure to comply with the requirement to keep the bleeders safe for travel.

39 FMSHRC Page 1910

the recurrence of a violation after significant remedial efforts by the operator. The sufficiency of
the remedial efforts bears upon evaluation of the notice factor in the unwarrantable failure
determination and must be considered.
Efforts by Consol before February 5 to prevent water accumulations are relevant to
whether it had notice of a need for even greater efforts to prevent violations from occurring. In
other words, what notice did Consol have of a need to do more than the actions mentioned
above? After being cited in December, Consol took those efforts. This raises the issue of how
Consol was on notice that greater efforts than even those were required. The Judge dismissed
that question out of hand because those efforts failed. It is incorrect, however, to assume, as the
Judge did, that the efforts the operator took are irrelevant to the question of whether the operator
was on notice that greater efforts were necessary.
e. Pre-citation efforts to abate
Where an operator has notice of an accumulation problem, the level of priority that the
operator places on the abatement of the problem is relevant. Enlow Fork, 19 FMSHRC at 17.
The focus on the operator’s abatement efforts is on efforts made prior to the issuance of a
citation or order. Id. Thus, an operator’s efforts in cleaning up accumulations before and during
an inspection may support a finding that a violation of a standard requiring that an escapeway be
“maintained to insure passage at all times of any person” was not caused by unwarrantable
failure. Utah Power & Light Co., 11 FMSHRC 1926, 1934 (Oct. 1989).
The Judge found that the operator acted to abate the violation immediately after
discovery of the condition and well before any inspector arrived on the scene. 37 FMSHRC at
1653. Stalnaker informed Price about the water between 4:00 and 4:30 a.m. Price then called the
surface to have someone ensure that the surface pump was running. 37 FMSHRC at 1630. At
approximately 5:00 a.m., Russ Ciapetta began working to bypass the malfunctioning bubbler
system, after which the pump resumed operation. Id. The operator started removing water from
the tanks at 7:00 a.m. 37 FMSHRC at 1630 n.24; Tr. 624.
The operator called Mon Valley Integration at 10:00 a.m. to discover why the bubbler
malfunctioned. 37 FMSHRC at 1632; Tr. 527. However, the Judge essentially gave the
abatement efforts little to no weight, stating that there is “no reason to believe that abatement
after miners are exposed to a hazard alone makes an unwarrantable failure determination
inappropriate.” Id. at 1654. However, the issue is not whether such efforts, standing alone,
preclude an unwarrantable failure finding. The issue is the extent to which the Judge should
consider such efforts when balancing unwarrantable failure factors. With the understanding that
the violation was not highly likely to cause a fatality, the Judge should consider the immediate
efforts to abate the violation before the arrival of any inspector and without any knowledge that
MSHA would or had received a section 103(g) complaint.

39 FMSHRC Page 1911

f. Obviousness
The Judge found that the accumulations of water were “massive and [that] the examiner
had to travel through them to complete the examination.” Id. at 1652. Had the newly installed
bubbler monitoring system not failed due to a hole in the line, management would have been
alerted earlier to the problem and, indeed, ancillary pumping would have started earlier.
However, due to that unknown equipment defect, the accumulation only became obvious when
the Stalnaker inspection began and there was no reason to know of the accumulation before that
point. Here, the operator could not know of a water buildup until Stalnaker arrived on the scene.
Then, it acted immediately to abate the violation.
Given that one part of the unwarrantable failure analysis is to determine whether a mine
operator engaged in aggravated conduct constituting more than ordinary negligence, if a
violation is obvious only after it is discovered, and there is no reason it should have been
discovered earlier, then the condition’s obviousness once discovered provides little or no
assistance in making a determination of aggravated conduct.10
g. Knowledge
The Judge also misapplied the aspect of knowledge. The Judge found that the operator’s
knowledge of the violation was an aggravating factor because despite that knowledge, “miners
were willfully exposed to the condition.” Id. at 1654. Thus, the Judge stated, “the preponderance
of the evidence shows that Stalnaker knew about the condition when he encountered it in the
bleeder.” Id. Similar to the Judge’s finding of obviousness, when the operator could not have
known or have been reasonably required to have known of the violation until it is discovered, the
knowledge factor may not be indicative of aggravated conduct.
Therefore, we would remand her finding of unwarrantable failure.
B. Order No. 7024069
Significant and Substantial
Order No. 7024069 was issued because Consol did not record the accumulations of water
in the examination book before Giavonelli countersigned it. 37 FMSHRC at 1656. The Judge
found, and our colleagues affirm, that the failure to record the accumulations contributed
significantly and substantially to a hazard of tripping and falling in the water of the E bleeder
district. They reach this conclusion for two reasons. First, they assert that failing to record the
hazard “made it more likely that miners . . . would enter the bleeder with the mistaken belief that
it was free of hazards, contributing to the reasonable likelihood of the danger of falling.” Slip op.
10

We disagree with the Judge, and Commissioner Cohen, see slip op. at 41 n.10, that the
entrance of Stalnaker and Saunders into deep water bears upon the “obvious” element of whether
the violation (the accumulation of water) was an unwarrantable failure. MSHA did not cite
Consol for the entry into the water, but for the accumulation that existed. If critiquing Consol’s
actions after the violation (water buildup) occurred bears upon other elements of unwarrantable
failure, it has no relevance as to whether the violation was “obvious” before it was discovered
and abatement was started.

39 FMSHRC Page 1912

at 30. Second, they also assert that the failure to record the hazard meant that Consol and MSHA
would not have a record of its occurrence, which increased the likelihood of future exposure of
miners to hazardous water. Id. Consistent with the Commission’s decision in Newtown, we
disagree with their assessment.
In Newtown, the Commission directed use of “a ‘reasonable likelihood’ analysis for
determining whether a violation significantly and substantially ‘contributes’ to a hazard.” 38
FMSHRC at 2038. When framing the question, we made it clear that not only must the hazard be
reasonably likely, but the violation must sufficiently contribute to the causation of the hazard,
saying: “[T]he question under step two is whether, under these particular circumstances, the
violation (the failure to remove the key from the lock) was reasonably likely to result in the
restoration of power to the shuttle car cables while the inspection group was working on it.” Id.
(emphasis added). In the context of this case, therefore, the question under step two is whether,
under these particular circumstances, the violation (the failure to record the hazard) was
reasonably likely to result in miners entering deep water to the point of encountering trip-and-fall
hazards. In other words, did the violation sufficiently, i.e., meaningfully or “significantly and
substantially,” contribute to the occurrence of the hazard.
Illustrating this inquiry, in Secretary of Labor v. Federal Mine Safety and Health Review
Commission, 111 F.3d 913 (D.C. Cir. 1997), the D.C. Circuit affirmed a finding that a violation
did not sufficiently contribute to the hazard of a fire, and, therefore, the violation was not
significant and substantial. In that case, a pile of trash was located partially in active and partially
in inactive portions of the mine. Id. at 916. Only a small part of the pile was located in the active
portion of the mine, and thus only a small amount of trash was violative. Id.
Although the Secretary introduced evidence that the larger nonviolative portion of the
trash pile, the mine’s history of methane ignitions and fires, and the trash’s combustibility all
contributed to the hazard of a fire occurring, the court did not consider those when reviewing the
violation’s contribution to the hazard. Id. at 918. First, the court stated that “[t]he statute requires
a decision maker, having found a violation, to make two additional findings: whether there is a
‘hazard’ to which the violation might contribute; and, if so, whether the violation ‘significantly
and substantially’ contributes to that ‘hazard.’” Id. at 917. “When evaluating the first question,”
the court continued, “the Commission does consider surrounding conditions.” Id. However,
“when the Commission analyzes whether a particular violation ‘significantly and substantially’
contributes to the ‘hazard,’ it considers, as it did here, only the particular violation’s
contribution.” Id. at 917-18. Quoting the Commission, the court then specified that “[i]t is the
contribution of a violation to the cause and effect of a hazard that must be significant and
substantial.” Id. at 918 (quoting Texasgulf, Inc., 10 FMHSRC 498, 500 (Apr. 1988)).
Accordingly, the court concluded, “[a]lthough the Secretary’s evidence may suggest that the
[nonviolative] trash enhanced the danger of fire, a reasonable factfinder could have concluded
that the record contained insufficient evidence that this danger was markedly increased by the
few additional [violative] items.” Id. (emphasis added).
Applying the reasoning of the D.C. Circuit, the foreman’s failure to record the deep water
before signing the examination book did not sufficiently contribute to a hazard of miners tripping
and falling in deep water to make the failure an S&S violation. First, abatement was occurring
before Giavonelli signed the book, and no miners other than a bleeder examiner were even
permitted to enter the area. This active abatement started well before MSHA was even notified

39 FMSHRC Page 1913

and included calling a contractor, Burns Trucking, that began emptying water from the aboveground tank at 7:00 a.m. 37 FMSHRC at 1630 n.24; Tr. 624. The failure to record the
accumulations on February 5 did not contribute in any way to any danger of Stalnaker or
Saunders tripping and falling in the water. They entered the water as part of the examination
process before Giavonelli signed the report. As the Judge found, the water was obvious, and
Stalnaker and Saunders had already encountered and reported the water when Brottish entered
the water with MSHA Inspector Gross. The failure to record had no effect on Brottish’s or
Gross’s actions, either.
This is not a situation in which multiple miners could be exposed to a surprising hazard.
It is apparent, therefore, that the blank examination page did not contribute to, much less
significantly and substantially contribute to, a hazard of a bleeder examiner walking into the
water accumulation that resulted in the citation under section 75.370(a)(1). There is no logic to a
finding that the failure to record the presence of the water made it reasonably likely that a miner
would enter the water. Obviously, a miner could not accidentally enter deep water based upon
the absence of a report of deep water.11
Second, the failure to record does not sufficiently contribute to a “hazard” that, without a
written record, MSHA and Consol would not be aware of water accumulations in the bleeder,
thus making it reasonably likely that future examiners would encounter and walk into deep
water. Again, it is unclear how failure to record this accumulation would meaningfully contribute
to or markedly increase the likelihood of miners entering deep water when they would know they
were entering deep water with or without the report. Going further, the absence of a notation of
water from the examination record certainly did not mean that Consol was unaware of the
accumulation. Indeed, Consol had been aware of the condition for hours before the signing of the
record book. From an operational standpoint, Consol had more compelling records of the
occurrence beyond the examination book, including increased expenditures for water removal by
Burns Trucking.12 Regarding MSHA’s awareness of the hazard, not only did the Secretary not
11

Our colleagues assert that the absence of the notation that day made it reasonably likely
that Greene, a regular and experienced bleeder examiner, “would enter the bleeder with the
mistaken belief that it was free of hazards” at some point in the future. Slip op. at 30. Of course,
only bleeder inspectors may walk in the bleeder, and part of their purpose in doing so is to
identify hazards that they encounter. The violation in this very case arises from the failure to
record hazards found by an examiner. It defies logic and common sense to suggest that Greene,
the regular and experienced bleeder examiner, would walk into and through deep water without
knowing he was in the water or without knowing it might present a hazard.
12

Notation of the accumulation would not have provided information beyond that clear to
the examiners who encountered the water. Water in the bleeders was not an uncommon
occurrence and was not even considered to be a violation up to 18 inches in depth. The
examiners could not have provided more detailed information, so that its absence would be
material to the reasonable likelihood of injury, without entering the water — an aggravation of
the violation, in the eyes of the Judge. Furthermore, one cannot simultaneously maintain that the
accumulation was obviously violative to the examiners and that it required a record notation to
avert serious injury or death of examiners who should have known better than to enter the water
when they encountered it.

39 FMSHRC Page 1914

present evidence that MSHA was reasonably likely to review the book, but it is also entirely
speculative to conclude that MSHA not seeing a report of deep water would make the future
entry of miners into deep water reasonably likely.13
Finally, it is illogical to suggest that examiners would be surprised to encounter the water.
Water is common in bleeders, and it is not an insidiously hidden hazard — an examiner would
see it before entering it. The problem was the decision to enter the water, not the fact that there
was water there, and especially not the fact that the water was not recorded after it had already
been encountered.14
We do not condone the failure to record a hazard even though the hazard was undergoing
abatement. Stalnaker, Saunders, or Giavonelli should have recorded the water, and MSHA
appropriately issued an order for Consol’s failure to record. Under the circumstances of this case,
the absence of the water notation did not meaningfully increase the likelihood of any injury from
the current violation or from any future hazard sufficiently to make this violation S&S. The
connection between this violation and the occurrence of the identified hazard is too attenuated to
survive step two, and for that reason, we conclude that this violation is not significant and
substantial.15

13

Consol already had increased inspections of the bleeder and of the surface pump.
Further, although the Judge did not opine definitively on whether additional long term
mechanical abatement measures had been installed on February 5, the evidence demonstrated
that solutions were in process, including installation of an electronic remote monitoring system
on the Surface Pump and storage tanks, Tr. 737 (Yoho); Tr. 572, 577 (Demidovich); Consol Ex.
P; Consol Ex. O, and installation of an alarm system on the surface storage tanks, Tr. 737, 738
(Yoho); Tr. 208 (Young).
14

The operator’s attempts to abate the accumulation were well underway before the
record book was signed. While attempting abatement of the problem at its source, the operator
continued to attempt to fulfill its responsibilities under the ventilation plan by sending Saunders
into the bleeder to take measurements of methane. The nature of the violation here — the failure
to record known accumulations whose abatement was already underway — is distinct from the
examiners’ and MSHA inspectors’ decisions to enter the water.
15

Our colleagues forecast dire, wide-ranging results if our opinion is followed to its
logical conclusion. We stress that this is one case drawn from a specific set of facts and
circumstances. We arrive at our conclusion by applying established legal principles to the facts
of this case, and the applicability of this case to one we may consider in the future depends
entirely on the existence of facts that similarly fail to establish a reasonable likelihood of harm
arising from the future violation’s contribution to a specified hazard.

39 FMSHRC Page 1915

Gravity
The Judge determined that the violation underlying the order was highly likely to result in
fatal injury. 37 FMSHRC at 1662. The order involved the same underlying hazard in the same
area as the citation — a trip and fall hazard because of water accumulations in the E bleeder
district. We thus vacate the gravity determination and remand for the same reasons, and with the
same direction, as the citation.
Negligence
The Judge found that Giavonelli signed the exam book knowing that deep water was
present yet not listed in the book. While the operator argued below that it did not have to
complete the examination at the time the citation was issued, and therefore it did not have to
complete the record, id. at 1660, it also conceded the fact of violation. Id. at 1656. The operator’s
arguments below — that Giavonelli was merely signing to say that he saw the sheet and that the
time to complete the examination had not yet run — do not offset a negligence finding in this
case.
We most certainly do not condone or excuse signing an inspection book at a time when a
known hazard has not been listed on the assumption that the condition will be corrected before
the time to complete the inspection has elapsed. Here, however, certain factors not considered by
the Judge could lead to a finding of ordinary negligence. The Judge should review such factors
so that the determination is a full and fair decision based upon all relevant considerations.
First, the Respondent was actively working on the issues omitted from the book, and,
given that the area was not an area where miners worked or traveled, it was highly unlikely that
any miner not working on and knowledgeable of the issue would enter the bleeder area before
the sufficient diminishment of the water. In reality, therefore, the examination book under these
especially unique factors played no role in alerting fellow miners of a hazard.
Second, the book did not indicate that Respondent had completed the inspection at the
two inspection points that the book omitted. In other words, the book did not represent that a
complete inspection had been made at all safety checkpoints. Any knowledgeable person looking
at the book would have seen that readings had not been taken at all required checkpoints.
Without prejudging the result in any way, but only to permit a full discussion of all issues
bearing upon the degree of negligence, we would remand the determination for review by a
Judge in the first instance.
Unwarrantable Failure
As to this issue, the Judge simply stated that the facts and arguments regarding each were
“identical” and incorporated her findings for the citation by reference in order to reach the same
conclusion. Id. at 1661. We find that this cursory analysis was legally deficient and requires
remand.

39 FMSHRC Page 1916

The relevant facts for each violation are not identical. The operator’s duties to prevent the
water accumulation and to record the same require different conduct by the operator, and the
relevance of facts can only be determined in light of that required conduct. For example,
regarding the citation, the operator was cited for the same violation on November 20, 2012, and
December 10, 2012. The latter citation also informed the operator that similar violations in the
future might lead to greater enforcement efforts by MSHA. Gov’t Ex. 8. In contrast, there is no
evidence that the operator had ever been previously cited for a recordkeeping violation.16
We cannot discern how the Judge balanced the factors. We therefore vacate and remand
this issue for reconsideration.

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Michael G. Young
Michael G. Young, Commissioner

16

We note that some of the other IO Coal factors may also be analyzed differently for the
order than for the citation. On remand, the Judge is free to reach any reasonable conclusion
supported by the facts for each factor. These findings are exclusively within the province of the
Judge below. Although Commissioner Cohen remands on unwarrantable failure to obtain an
analysis by an Administrative Law Judge, he essentially opines on each unwarrantable failure
element. The Judge upon remand need not accord any weight whatsoever to Commissioner
Cohen’s premature statement of his personal view of factual issues.

39 FMSHRC Page 1917

Opinion by Commissioner Jordan:
This case involves a mine operator who permitted water to accumulate to dangerous
levels in its mine, despite multiple warnings from the Department of Labor’s Mine Safety and
Health Administration (“MSHA”). It involves an agent of the operator, a certified mine
examiner, who upon observing the large accumulations of water, nevertheless attempted to wade
through it. I join my colleagues in affirming the Judge’s determination that the violation was
appropriately designated significant and substantial (“S&S”). However, for the reasons set forth
below, I would affirm the Judge’s finding that the violation constituted an unwarrantable failure,
and would uphold the penalty assessed by the Judge as one that appropriately applied the
statutory criteria of negligence and gravity.
I also would affirm the Judge’s decision regarding the related violation alleging that the
operator failed to properly record the existence of the water hazard in the weekly examination
book, and would affirm the penalty.
A.

Citation No. 7024068

As is the case in many underground mines, Consol Pennsylvania Coal Company
(“Consol”) had to regularly pump out its bleeders so as to avoid dangerous accumulations of
water. Indeed, the approved ventilation plan specified certain means “to remove water as
necessary to permit safe travel through the perimeter bleeder system.”1
Despite this requirement, it is uncontested that on February 5, 2013 the MSHA inspector
was confronted with bleeder sections that contained large accumulations of water. In one section
water stretched 600-700 feet and ranged in depth from 12-42 inches. In another area it stretched
1,800 feet and ranged in depth from 12-36 inches. 37 FMSHRC 1616, 1640 (July 2015) (ALJ).
Three days of pumping in a difficult-to-reach area were required in order to fix the problems and
get the water out. Id.; Tr. 153-54, 233. The water was murky, cold, contained debris and tripping
hazards, and constituted a hazard to miners traveling in the area, leading the Judge to conclude
that “[r]espondent’s system was wholly inadequate to the challenge of keeping water out of the
bleeder.” 37 FMSHRC at 1650. In fact, Consol did not contest the Secretary of Labor’s
determination that it had violated its ventilation plan.
This was not the first enforcement action MSHA had taken against this operator for such
a violation. Approximately two months prior to the inspection at issue, MSHA cited Consol after
1

Specifically, the mine’s ventilation plan stated in relevant part:
The means for maintaining the bleeder safe for travel will include
compressed air lines routed underground, used in conjunction with
air pumps to remove water as necessary to permit safe travel
through the perimeter bleeder system. . . . Ditches, bridges and
natural drainage are used to maintain the bleeder entries free from
standing water that affects ventilation and prevent safe travel.

Gov’t Ex. 3 at 1.

39 FMSHRC Page 1918

the inspector observed more than 36 inches of dark, murky water (which covered numerous
tripping hazards lying beneath). Gov’t Ex. 7. Less than three weeks after that, MSHA issued a
second citation because Consol had allowed an accumulation of more than 18 inches of dark,
murky water to occur at the sump, as well as permitting more than 24 inches of water to
accumulate in another area of the mine. Gov’t Ex. 8. Consol maintains that after receiving those
citations it took additional steps to control the water and that the accumulations present on
February 5 were due to unforeseen circumstances of which the operator could not reasonably be
expected to have been aware.
Regardless of whether the presence of the water accumulations on February 5 reflected a
failure on the part of Consol to exercise reasonable care, we must consider the Judge’s finding
that Mine Examiner Dan Stalnaker’s decision to proceed through the dangerous water
accumulation constituted negligent behavior on his part. Moreover, because Stalnaker was a
supervisory employee, the Judge imputed Stalnaker’s negligence to the operator for purposes of
determining whether the violation resulted from Consol’s unwarrantable failure, and for the
purpose of determining a penalty that took into account the operator’s negligence, as required by
section 110(i) of the Mine Act, 30 U.S.C. § 820(i).
Longstanding Commission precedent recognizes that the negligence of an operator’s
agent is imputed to the operator for purposes of determining an appropriate penalty and for
reviewing the Secretary’s unwarrantable failure determinations. See Whayne Supply Co., 19
FMSHRC 447, 451 (Mar. 1997); Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194-97
(Feb. 1991) (“R&P”); S. Ohio Coal Co., 4 FMSHRC 1459, 1463-64 (Aug. 1982). We have held
that “in carrying out . . . required examination duties for an operator, an examiner . . . may
appropriately be viewed as being ‘charged with responsibility for the operation of . . . part of a
mine,’ and therefore, the examiner constitutes the operator’s agent for that purpose.” R&P, 13
FMSHRC at 194.
Here, instead of retreating and reporting that water had accumulated, Stalnaker proceeded
into it to conduct his examination. In doing so, he was well aware that the accumulation posed a
danger. Indeed, as the Judge noted, Stalnaker himself testified that he would not have let miners
work in the amount of water he encountered at the bleeders. 37 FMSHRC at 1629; Tr. 310-11.
Before entering the water to conduct his exam, an inspection I note that was done alone and in an
isolated area of the mine, Stalnaker made a dangerous situation even more risky by donning
illegal chest waders. The chest waders available to Stalnaker lacked flotation devices. Because
such waders can fill with water and drag miners under the surface, they increase the risk of
drowning and are not permitted. 37 FMSHRC at 1646; Tr. 455, 500, 704. In fact, in this case
water did enter Stalnaker’s waders and broke his gas detector, causing him to terminate his
examination.2
In assessing the level of danger and negligence involved, the Judge noted that the water
accumulation posed a risk to miners, outside the risk of drowning. She found that Inspector
Young credibly testified that the murky water was full of chemicals and bacteria and posed a risk
2

Stalnaker found the illegal waders located in the East tailgate area where he began his
examination. Members of management claimed they had no knowledge how the illegal waders
got there. 37 FMSHRC at 1629.

39 FMSHRC Page 1919

of cellulitis and MRSA (staph bacteria) as a result of these substances. 37 FMSHRC at 1646; Tr.
68-69. Indeed, the water that Stalnaker entered had to be trucked away and processed before it
could be released into the environment. 37 FMSHRC at 1646; Tr. 761. A fall that resulted in a
cut to the skin could therefore pose more than the usual danger given the contaminated nature of
the water. There is testimony that the area in question contained plenty of pipes, supports, and
other debris that either could be the cause of or could be struck in a fall. 37 FMSHRC at 1646;
Tr. 123. Furthermore, the cold temperature of the water increased the chances that a miner who
suffered injury could go into shock. 37 FMSHRC at 1646.
The Judge upheld the designation of the violation as unwarrantable. The Commission has
equated unwarrantable with “aggravated conduct” and has affirmed unwarrantable findings
where, as here, a supervisory person intentionally engages in behavior violative of a mandatory
standard.
The ventilation plan required the bleeder be maintained for safe travel. A bleeder, or
section thereof, that cannot be safely traveled should not be traversed by any miner, but
particularly should not be traveled by a supervisory employee, well aware of the dangerous
nature of the condition.3 There was no mitigating circumstance present: for example, Stalnaker
was not exposing himself to danger to rescue a fellow miner. He was simply trying to carry out
the weekly exam in a timely fashion. Stalnaker should have retreated, reported the condition, and
waited until sufficient water was pumped out so that the exam could be conducted safely. His
decision to continue this dangerous journey constitutes substantial evidence supporting a finding
of aggravated conduct. Thus, I would affirm the Judge’s finding that the violation was the result
of the operator’s unwarrantable failure.
Regarding the Judge’s gravity finding, I conclude that substantial evidence supports a
finding of serious or high gravity, based on the testimony the Judge utilized in supporting her
S&S determination, both in regard to tripping hazards, 37 FMSHRC at 1643, and potential
injuries, id. at 1646. This included the inspector’s statements that the bleeder entry contained
deep water with various tripping hazards, including uneven floor and debris, that miners who
tripped could suffer broken bones or head injuries, that the cited area had pipes, supports and
other debris that could be struck in a fall, that cold water increased the chances that a miner
could go into shock, and that there was a risk of drowning. Id. at 1643-46.
The operator also challenges the Judge’s penalty assessment, but the same facts that
allowed the Judge to reasonably conclude the conduct at issue supported the Secretary’s decision

3

The fact that an MSHA inspector subsequently entered the area traversed by Stalnaker
does not undermine the Judge’s unwarrantable designation. Significantly, the inspector was
subsequently chastised by his supervisors for exposing himself to a dangerous condition. Tr.
349-50. Moreover, I note that the fact the inspector was not traversing the bleeder alone in itself
lessened the dangerous aspect of the activity.

39 FMSHRC Page 1920

to designate the violation as resulting from an unwarrantable failure to comply, also support the
Judge’s determination that the penalty should reflect a high degree of negligence.4
B. Order No. 7024069
The underlying facts regarding this order are not in dispute. Stalnaker informed the mine
foreman, Mike Giavonelli, that he was not able to complete the examination of the bleeder due to
the high water. Giavonelli spoke with the shift foreman, who told Giavonelli that Foreman and
Mine Examiner Kevin Saunders had been sent into the bleeder to complete the weekly
examination. Tr. 703. Saunders thereafter informed Giavonelli that he also was unable to
complete the examination because of the water. Although the hazards were not noted and the
examination was incomplete, Giavonelli countersigned the examination book.
Substantial evidence5 supports the Judge’s determination that the recordkeeping violation
was S&S, pursuant to the standards set forth by the Commission in Mathies Coal Co., 6
FMSHRC 1, 3 (Jan. 1984) (footnote omitted):
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard — that is, a measure of
danger to safety — contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.
An evaluation of the reasonable likelihood of injury should be made assuming continued normal
mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S.
Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)).

4

The operator relies on Nacco Mining Co., 3 FMSHRC 848, 850 (Apr. 1981), arguing
that the negligence of agents is not imputable to an operator if they expose only themselves to
hazards. This argument is unavailing, as in Capitol Cement Corp., 21 FMSHRC 883, 893-94,
(Aug. 1999), we held that the Nacco defense is not available when a violation is the result of
unwarrantable failure. Moreover, Consol failed to raise this argument before the Judge. See
section 113(d)(2)(A)(iii) of the Act, 30 U.S.C. § 823(d)(2)(A)(iii) (“Except for good cause
shown, no assignment of error by any party shall rely on any question of fact or law upon which
the administrative law judge had not been afforded an opportunity to pass.”).
5

When reviewing a 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., 11 FMSHRC
2159, 2163 (Nov. 1989) (“R&P”) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)).

39 FMSHRC Page 1921

The order alleges that Consol failed to record obvious and extensive hazardous conditions
found during the weekly examination. As the Judge found, four of Consol’s foremen —
Stalnaker, Saunders, Price and Giavonelli — knew about the water in the bleeder, that it was a
hazard, and that it should have been recorded in the book. However, the hazardous water was not
noted in the book when Giavonelli signed it. 37 FMSHRC at 1656. The operator does not dispute
that the violation occurred, and thus the first Mathies element was met.
As to the second Mathies step, substantial evidence supports the Judge’s finding that the
violation was reasonably likely to contribute to the danger of tripping and falling. The record
includes evidence of deep water accumulations obscuring an uneven floor and debris. The
erroneous recording gave the false impression that the bleeder was entirely free of hazardous
conditions contributing to the likelihood that miners may enter the bleeders unaware or
unprepared to encounter the tripping hazards. As the Judge correctly noted, the fact that some
miners and managers knew about the conditions was immaterial, because without the
examination record, other miners had to rely entirely on word-of-mouth. For instance, as the
Judge observed, Jamie Greene, the regular examiner, would have had to rely on an informal
conversation with Stalnaker to learn about the extremely hazardous condition. Id. at 1657.
Hence, the absence of a written record of the hazards made it more likely that miners — such as
Greene — would enter the bleeder with the mistaken belief that it was free of hazards,
contributing to the reasonable likelihood of the danger of falling.
Moreover, as the Judge pointed out, because the water accumulations were not recorded
in the examination book, Consol would have had no record of them. Inspector Young testified
about the importance of a written record:
Mike [Giavonelli] is pretty much the guy, whoever is acting as the mine
foreman is who controls who works back in the bleeders, he is the one
that gives permission, he is the one that tells the shift foreman, let
whomever go back and do this. If is not recorded in the books and
something happens to Mike . . . and he doesn’t come to work . . . who is
to say that that isn’t going to get forgot about.
....
[W]hen [the mine foreman] signs that weekly book, he is to look at that weekly
book, he is to do a basic check from one week to the next. . . . He is the person .
. . responsible as far as the underground workings of that mine, and that is the
only way he knows if it is proper, without doing it himself, is by looking at those
record books.
Tr. 140, 142.
Since the operator would not have had a written record that its efforts to keep water out
of the bleeder were inadequate, the likelihood of it quickly and effectively resolving the problem
was reduced and the likelihood of additional flooding — and additional exposure of miners to
the hazardous water — would have been increased. 37 FMSHRC at 1658.
Importantly, the failure to record the hazards means that MSHA inspectors would not
realize that the condition existed, and that hazards might continue to occur in the bleeder without

39 FMSHRC Page 1922

MSHA’s knowledge. In fact, without the section 103(g) (30 U.S.C. § 813(g)) complaint, MSHA
never would have known about the water in the bleeder.
Substantial evidence also supports the Judge’s determination that the Secretary satisfied
the third Mathies factor — the danger of tripping and falling was reasonably likely to result in
injury. If miners tripped and fell in the bleeder the record supports a reasonable likelihood that an
injury would occur such as bruising or fractures, or a cut and resulting infection. Tr. 68-69, 12122, 143. The Judge’s finding that such an injury would be “of a reasonably serious nature” is also
supported by substantial evidence. The occurrence of such an injury, potentially miles away from
the surface, suffered alone without means of contacting assistance, only exacerbates its
seriousness.
The operator again claims that the violation was not reasonably likely to cause reasonably
serious injury because only trained, cautious examiners ventured into the E bleeder district, and
there is no evidence of any past injuries in this area. As noted supra (slip op. at 8-9), the absence
of prior injury in the relevant area and the exercise of caution by examiners are irrelevant to the
S&S analysis for this recordkeeping violation. U.S. Steel Mining Co., 18 FMSHRC 862, 867
(June 1996); Eagle Nest, Inc., 14 FMSHRC 1119, 1123 (July 1992). Moreover, Stalnaker and
Saunders deliberately went into the water, and thus were exposed to the hazards.
An additional hazard contributed to by this violation (the failure to record the water in the
exam book) is that some mine managers would be unaware of conditions that could adversely
affect the mine’s ventilation system, and thus would not correct them.6 As the Secretary stated in
his post-hearing brief: “Failing to properly record an examination puts miners traveling to an
area at risk because they could be unaware of hazards, and with respect to a bleeder system, puts
an entire mine at risk.” S. Post-Hr’g Br. at 28 (emphasis added). As the Secretary cogently
argued on appeal, “Inspector Young believed that the recording violation was S&S not only
because it exposed miners to further hazardous water accumulations, but also because it was
inconsistent with assuring remedial action in order to prevent accumulating water from resulting
in potentially catastrophic ventilation starvation, which was the primary concern of the MSHA
inspectors’ Section 103(g) investigation in the first place.” S. Br. at 30. Inspector Young
articulated this concern at trial:
If this violation wasn’t corrected, if the pumping wasn’t done, not
saying that they didn’t because they started the pump, but say, the
pumping wasn’t adequate, it could affect the ventilation over a
period of another week as much water as was back here.

6

In Oak Grove Resources, LLC v. Secretary of Labor, 520 F.App’x. 1, 2013 WL
1729514 (D.C. Cir. 2013) (unpublished), the Court held that a Judge’s determination that a
violation of 30 C.F.R. § 75.364(b)(2) for failure to conduct a weekly examination was S&S was
supported by substantial evidence. In that case, the examiner was precluded from finishing his
inspection because of high water levels. The Court reasoned that the record indicated that a
compromised ventilation fan, if undetected by inspection, might allow methane and other
potentially lethal gasses to build up in the mine.

39 FMSHRC Page 1923

It did not affect the ventilation when we were there on the
investigation, but if left unattended, it most certainly could have.
Tr. 143. Inspector Gross also testified that he “was concerned about the gas.” Tr. 399.
In reversing the Judge, the Chairman and Commissioner Young rely on the fact that the
operator was making efforts to remedy the water problem before Giavonelli signed the book.
That such activity had commenced is hardly persuasive evidence, especially considering that the
water problem was not entirely abated until three days later. 37 FMSHRC at 1657. Similarly,
their reliance on the fact that some examiners had personal knowledge of the water problem, slip
op. at 22, ignores the requirement that the S&S analysis be applied considering “continued
normal mining conditions,” and thus must take into account the hazards to other examiners who
might not know about the water. Also, although my colleagues are confident that miners would
realize they were entering deep water even though the examination report was deficient, they
would not necessarily be aware of some of the tripping hazards, including the uneven floor and
debris. Slip op. at 7-8; Tr. 724.
Taken to its logical conclusion, my colleagues’ position seems to indicate that a failure to
record violation involving an obvious hazard that can be avoided by a miner cannot be S&S.7
Thus, if a mine examiner failed to report a guard missing from a conveyor belt, and it would be
obvious to a miner that the belt was not guarded, (and he or she could stay away from the
unguarded part of the equipment) the violation would not be S&S because the miner would
realize that the belt lacked a guard “with or without the report.” Slip op. at 22. I am reluctant to
endorse such a concept, as it removes an important enforcement tool needed to ensure
compliance with examination requirements.
In sum, under the deferential substantial evidence standard of review, I conclude that the
evidence above is such that a reasonable person might accept it as adequate to support the
Judge’s conclusion that the examination violation was S&S.
The next issue is whether substantial evidence supports the Judge’s finding that this
conduct constitutes unwarrantable behavior. I would find that it does.
Despite the fact that neither of the two examiners had noted the hazard of dark, murky
water and tripping hazards in the bleeder, that Saunders had not signed the book, and that the
examination was not complete, Giavonelli countersigned the examination book. 37 FMSHRC at
1637; Tr. 659, 666, 671-72, 682, 717. He knew the examination had not been completed but
claimed he signed the book only to signify that he had read it and knew there was a problem. Tr.
671-72, 681-82.
Only later that day, after he discovered that MSHA knew about the water in the bleeder
and was likely to issue citations, did he add a note in the examination book to explain what had
occurred. Tr. 677-79, 717.

7

My colleagues’ position would also lead to the conclusion that even if the water had
been so deep that it reached the roof, the failure to record this hazard would not be considered
significant and substantial.

39 FMSHRC Page 1924

As for Stalnaker and Saunders, they told the inspector that they forgot to fill out the
examination book. 37 FMSHRC at 1637; Tr. 100. Saunders also acknowledged that he was
complacent because the area often had water accumulations and he was not surprised to find
water there. 37 FMSHRC at 1638; Tr. 311. Saunders stated that he did not believe the water was
a hazard despite the fact that it was cold, murky, contained tripping hazards and was so deep that
he did not complete his exam. 37 FMSHRC at 1659.
The importance of the examination requirement cannot be overstated. Here, the operator
had a duty to ensure that the water hazards were recorded so that miners and MSHA inspectors
would be alerted to the dangers of tripping and falling in the water before being exposed.
Recording the hazard would also have provided notice that additional efforts were needed to
keep the bleeder clear. Id. This information was vital to miner safety.
The inspector’s testimony on this subject was stark and direct:
[T]his is a vast volume of water back here. I mean, it needs to be
documented, people need to know. It is required by law. What they
are doing to correct it is required by law and the actions that they
are taking [are] required by law to correct the condition. It is just
not something that you keep two sets of records or you take a
mental note on. It is a requirement.
Tr. 140-41.
As the Judge correctly noted, “This was not a mere paperwork error, rather this went to
the heart of miner safety in the bleeder. . . . In fact, by creating a false impression about the area,
the countersigned record book exacerbated the problem.” 37 FMSHRC at 1659-60. The violation
involved the failure to record the presence of extensive deep water in an area of the mine where
miners had to travel alone, possibly without timely aid if they were injured.8
In fact, had the 103(g) complaint not been made and the examination book subsequently
updated and corrected to reflect the water hazard, MSHA might never have had access to
important historical information that a problem had existed — a problem for which the operator
had previously been cited on more than one occasion. MSHA recognized the importance of such
documentation when, during the promulgation of the standard, it rejected suggestions that the
rule should only require the examiner to record uncorrected hazardous conditions. 61 Fed. Reg.
9764, 9805 (Mar. 11, 1996). In the preamble to the final rule, MSHA emphasized that the
examination record serves the important function of noting the history of the types of conditions
that can be expected in the mine. MSHA explained that when the records are correctly completed
and reviewed, mine managers can use them to ascertain whether the same hazardous conditions
are occurring and if effective corrective actions are in place. MSHA also stated that a record that
includes all hazardous conditions found and the actions taken to correct them, permits mine
management, MSHA inspectors and miners’ representatives to more efficiently focus their
attention during examinations and inspections. Id.
8

The failure to note and correct the water accumulations violations could also affect the
mine ventilation system. Tr. 143.

39 FMSHRC Page 1925

Central to my conclusion that this violation is unwarrantable is the fact that it involves
conduct by the highest underground mine official, Mine Foreman Mike Giavonelli, as well as by
other mine foremen. Consol unabashedly conceded that “[t]he mine foreman [Giavonelli]
countersigned the partially complete book while it still had blank entries.” PDR at 2. He
countersigned the book knowing of the hazardous conditions created by the water and knowing
that those conditions were not listed in the book. Moreover, when Stalnaker, the mine examiner,
was asked whether he considered putting the location of the water accumulations in the book, he
testified that “the date board where proof that I had visited that area was in the water. . . . So I
guess looking back on it, yes, I should have put it in the book.” Tr. 307.
As mentioned above, pursuant to longstanding Commission precedent, the fact that the
conduct at issue involved actions of mine management is a significant aggravating factor
supporting a finding that a violation is unwarrantable. See Lopke Quarries, Inc., 23 FMSHRC
705, 711 (July 2001) (recognizing that because supervisors are held to a high standard of care,
the involvement of a supervisor in a violation is an important factor supporting an unwarrantable
failure); Midwest Material Co., 19 FMSHRC 30, 35 (Jan. 1997) (reversing a Judge’s finding that
a violation was not due to the operator’s unwarrantable failure in part due to the Judge’s failure
to recognize that the violation took place in the presence of a foreman, who, under Commission
precedent, is held to a high standard of care); Lion Mining Co., 19 FMSHRC 1774, 1778 (Nov.
1997) (holding that the foreman’s observation of the violative condition was a factor tending to
establish an unwarrantable failure); S&H Mining, Inc., 17 FMSHRC 1918, 1923 (Nov. 1995)
(stating that in unwarrantable failure analysis, heightened standard of care is required of section
foreman and mine superintendent). As supervisors, the Consol foremen were “entrusted with
augmented safety responsibility and [were] obligated to act as a role model.” Capitol Cement
Corp., 21 FMSHRC 883, 893 (Aug. 1999).
I thus conclude that under the substantial evidence standard, where the inquiry is whether
there is “such relevant evidence as a reasonable mind might accept as adequate to support [the
Judge’s] conclusion,” there is more than enough in this record to sustain the Judge’s finding that
Consol’s violation exhibited “aggravated conduct.” See note 5, supra.
Regarding the penalty, the Judge assessed the $14,743 penalty proposed by the Secretary.
Consol challenges this penalty determination.
I would affirm the penalty. Under the Commission’s deferential standard of review, only
penalty assessments “lacking record support, infected by plain error, or otherwise constituting an
abuse of discretion” are subject to reversal. Lopke Quarries, 23 FMSHRC at 713; U.S. Steel
Corp., 6 FMSHRC 1423, 1432 (June 1984).
The Judge’s penalty determination easily meets this standard. She properly considered all
of the relevant statutory factors under section 110(i) of the Mine Act. 37 FMSHRC at 1661-62.
She noted that Consol’s actions constituted an unwarrantable failure to comply. Id. at 1662 (a
finding which, as discussed earlier, I would find is supported by substantial evidence). She
clearly gave great weight to her finding of high negligence. This was based on the fact that
Giavonelli signed the exam book knowing that water was present and not listed as a hazard. Id.

39 FMSHRC Page 1926

at 1658-61.9 The Judge also emphasized her gravity finding. Id. at 1662.10 Finally, she noted that
Consol had a history of water accumulations in the particular bleeder at issue, and had been cited
several times for that condition. Id.
Our case law is clear that Judges have discretion to assign different weight to the various
statutory factors, according to the circumstances of the case. See Lopke Quarries, 23 FMSHRC
at 713. Here, the Judge gave significant weight to negligent gravity, as our precedent permitted
her to do.
In sum, I find that in upholding the penalty proposed by the Secretary for the order, the
Judge did not abuse her discretion. For the reasons set forth above, I would affirm the decision of
the Judge.

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

9

I would affirm the Judge’s finding of high negligence based on the same analysis I use
to affirm the finding that the violation was the result of the operator’s unwarrantable failure.
10

The Judge affirmed the inspector’s high gravity designation, concluding that it was
supported by a preponderance of the evidence. 37 FMSHRC at 1656 (listing the danger as
“highly likely” to result in “fatal” injuries). She found that because the conditions listed in the
ventilation plan citation (the uneven mine floor and the deep water) were not listed in the
examination book, miners would not be aware of them. Id. at 1657. Thus, the failure to record
the deep water in the book exacerbated its danger because examiners sent to the area would lack
knowledge of the nature and extent of the hazard. Id. at 1657-58. As the inspector testified, “[i]f
somebody was to go back there unknowingly, the water wasn’t pumped . . . [s]omebody can fall
and somebody can hit their head.” Tr. 143.
The Judge also held that if miners entered the area, injuries such as a fracture, bacterial
infection, or death by drowning were highly likely to occur. 37 FMSHRC at 1657; Tr. 68-69,
121-22, 143. Because I find that the Judge’s analysis is supported by substantial evidence in the
record, I would affirm her gravity decision.

39 FMSHRC Page 1927

Opinion by Commissioner Cohen:
My assessment of the conditions at the Enlow Fork Mine which gave rise to Citation No.
7024068 and Order No. 7024069 is quite similar to that of Commissioner Jordan.
Despite two recent citations by the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) and a specific warning contained in the second of those citations,
Consol Pennsylvania Coal Company (“Consol”) failed to prevent the waters in the E-15 to E-22
bleeder system from accumulating to dangerous levels. The cold, murky water ranged up to 42
inches in depth in one extensive area and up to 36 inches in depth in another extensive area, for a
total of 2350 feet. The mine floor below the water was irregular and contained numerous tripping
hazards which could not be seen. The water was so extensive that it took three days after the
issuance of the citation and order to be pumped out. The water in the bleeder system clearly
constituted a violation of the provision in Consol’s ventilation plan which required that the
bleeder system be maintained “safe for travel”. This was the basis for the issuance of Citation
No. 7024068.
Despite the hazards, the water was entered by two Consol examiners — Dan Stalnaker
and Kevin Saunders, both of whom were foremen — on February 5, 2013 in an unsuccessful
attempt to complete the weekly examination of the bleeder system required by 30 C.F.R. §
75.364. Stalnaker even put on chest waders, which were improper to use because they lacked
flotation devices.1 Stalnaker did not retreat from the high waters until his multi-gas detector was
damaged when water poured into his waders while he attempted to go through a 3-foot high
mandoor between entries. Consol’s practice at that time (it has since been changed) was to have
its examiners examine the bleeders alone. Moreover, there was no communications system in the
Enlow Fork bleeders. From the point of entering the bleeder system to exiting the system, miners
had no way to call for assistance.
Upon the completion of their respective attempts, both Stalnaker and Saunders made
entries in the record book for the evaluation points they were able to access, as required by 30
C.F.R. § 75.364(h). Despite the conditions they had encountered, neither of them recorded any
“hazardous conditions”, as required by the regulation. Two other Consol supervisors — Shift
Foreman Robert Price and Mine Foreman Michael Giavonelli — knew about the water and made
no effort to make sure that this hazardous condition was recorded. Indeed, Giavonelli signed the
record book as Mine Foreman without indicating any hazardous condition. The failure of the
four foremen to make a record of the hazardous water was the basis for the issuance of Order No.
7024069.

1

It is against both MSHA policy and Consol policy to use chest waders which lack a
flotation device. Tr. 419-20, 455, 499-500, 704. Mine Foreman Michael Giavonelli testified that
he does not allow miners to wear waders because it is against Pennsylvania state law. Tr. 704.
Shift Foreman Robert Price testified that if they get filled with water, it is “tough to get up”. Tr.
455. Bleeder examiner Jamie Greene was more explicit — “You could go over water so far,
water goes down in, you drown”. Tr. 500.

39 FMSHRC Page 1928

However, I cannot agree with Commissioner Jordan that all of the Judge’s conclusions
should be affirmed. As described below, the Judge’s analysis was insufficient on the issues of
gravity, negligence and unwarrantable failure with regard to Citation No. 7024068, and was
insufficient on the issues of gravity and unwarrantable failure with regard to Order No. 7024069.
Thus, I would remand on those five issues, and affirm the Judge’s decision on the issue of
significant and substantial (“S&S”) with regard to the citation and on the issues of S&S and
negligence with regard to the order.
A. Citation No. 7024068
S&S
With regard to S&S, I join the unanimous Commission opinion.
Gravity
With regard to gravity, I join the opinion of Acting Chairman Althen and Commissioner
Young. It appears to me that the Judge became entangled in the distinctions between “highly
likely” and “reasonably likely” contained in Table XI referenced in 30 C.F.R. § 100.3(e). In
analyzing the gravity of the citation, the Judge found that it was “highly likely” that an injury
such as broken bones would result from a slip and fall in the bleeders, then said (three times) that
it was “reasonably likely” that a fatal injury (i.e., drowning) would occur, and then inexplicably
concluded that the conditions described in the Citation were “Highly Likely to result in Fatal
injuries to two miners.” 37 FMSHRC 1616, 1643, 1646-47 (July 2015) (ALJ). In making
determinations of gravity, Commission Judges should consider the evidence holistically, and not
feel bound by the distinctions made by the tables in Part 100. American Coal Co., 39 FMSHRC
8, 20 (Jan. 2017). I join Acting Chairman Althen and Commissioner Young in concluding that:
(1) the evidence does not support a high likelihood of injuries, and that (2) on remand the Judge
should determine the reasonable likelihood of injuries ranging from broken bones to a fatality.2
Negligence
The Judge concluded that Consol demonstrated a high degree of negligence when it
failed to comply with its ventilation plan because it: (1) “knew or should have known” of the
accumulated water in the bleeders and (2) failed to demonstrate any mitigating circumstances. 37
FMSHRC at 1648. I agree with Acting Chairman Althen and Commissioner Young that the
Judge’s decision should be remanded, but I do not agree with their rationale.
2

With regard to gravity, Commissioner Jordan states that “substantial evidence supports
a finding of serious or high gravity”. Slip op. at 28. I agree with her. I think it is proper for
Commission Judges to make findings as to gravity using terms such as “serious” or “high” while
discussing “factors such as the likelihood of injury, the severity of an injury if it occurs, and the
number of miners potentially affected.” Newtown Energy, Inc., 38 FMSHRC 2033, 2049 (Aug.
2016). If the Judge here had made a finding of “serious” or “high” gravity for the citation, I
would have joined Commissioner Jordan in affirming the citation. But the Judge stated her
conclusion as a “high likelihood” of injuries, a conclusion which, as stated in the opinion of
Acting Chairman Althen and Commissioner Young, is not supported by substantial evidence.

39 FMSHRC Page 1929

In large part, the Judge’s analysis of negligence was well reasoned and supported by
substantial evidence. For example, she recognized the significance of the fact that the bleeder
system was prone to flooding, and that MSHA had previously warned Consol in December 2012
that more effort was needed to control the water level in the bleeder. Id. at 1649-50. She
correctly determined that since Stalnaker and Saunders were members of management, their
knowledge of the high water levels was imputable to Consol. Id. at 1648. She correctly found
that Stalnaker and Saunders “willfully traveled through the hazards.” Id. at 1650.3 Moreover,
substantial evidence supports her determination that Consol’s system for keeping water out of
the bleeder was “wholly inadequate”. Id. However, in my view, the Judge committed three
fundamental errors of analysis which make it impossible to affirm her ultimate conclusion on the
issue of negligence.
First, the Judge applied the definitions of levels of negligence found in Table X
referenced in 30 C.F.R. § 100.3(d), under which high negligence may be found only if there is a
total absence of mitigating conditions. 37 FMSHRC at 1618. Thus, she organized her analysis
around the alleged mitigating circumstances asserted by Consol, and concluded that “[a]s none of
the actions presented by Respondent constituted mitigating circumstances, the ‘High Negligence’
designation is appropriate.” Id. at 1648-50. However, as Acting Chairman Althen and
Commissioner Young point out, slip op. at 12-13, the Commission has rejected, in general,
reliance on the Part 100 definitions in determining degrees of negligence, and, specifically, the
legal principle that the finding of any mitigating circumstance precludes a conclusion of high
negligence. Instead, Commission Judges evaluate negligence using a traditional and holistic
“reasonable person” analysis of the evidence. Thus, a violation may be found to be “high
negligence” even if mitigating circumstances exist. Brody Mining, LLC, 37 FMSHRC 1687,
1701-04 (Aug. 2015) (“[A] Commission Judge may find ‘high negligence’ in spite of mitigating
circumstances.”). In this case, the Judge’s use of the Part 100 definitions, by itself, would not
necessarily require remand. However, her reliance on the parameters of the Secretary’s Part 100
regulations resulted in a distortion of her analysis which gave rise to two reversible errors.4
Second, the Judge did not properly evaluate the fact that, as part of its efforts following
MSHA’s admonition in the citation for excessive water in the bleeder issued on December 10,
2012, Consol conducted additional monitoring in the area, including examining the bleeder

3

Acting Chairman Althen and Commissioner Young make reference to “Inspector Gross’
voluntary walk through the water”, slip op. at 14 n.5. However, Gross was accompanied by
Consol representative John Brottish, and testified that if he had been alone, he would not have
entered the water because no one could have helped him if he fell. Tr. 348-49, 398-99.
4

My impression is that the Judge had a gut sense that the ventilation plan violation was
characterized by high negligence — which may be entirely reasonable — and then, because the
Part 100 definition of “high negligence” requires the absence of any mitigating circumstance, she
fit the evidence into a conclusion that there were no mitigating circumstances. Thus, the use of
the Part 100 definitions of the degrees of negligence caused an analytic strait jacket in
considering whether allegedly mitigating circumstances are actually mitigating.

39 FMSHRC Page 1930

system more frequently than once a week.5 The Judge rejected these efforts as mitigating
negligence for two reasons. First, the Judge said that the efforts were “in vain” because,
subsequently, Stalnaker and Saunders willfully traveled through the hazards. Second, she found
that the efforts were “grossly inadequate” because the actions did not give Consol any indication
that water was collecting in the area at dangerous levels. 37 FMSHRC at 1650.
Neither of the Judge’s reasons constitutes a basis for rejecting the efforts as mitigation.
The fact that Stalnaker and Saunders willfully entered the hazardous water is essentially
irrelevant to the fact that Consol was making some effort to monitor the water. The Judge’s
finding that the efforts were “grossly inadequate” overlooks the fact, as the Judge found in her
unwarrantable failure analysis, that in the last examination which Jamie Greene conducted less
than 48 hours from the time the citation was written, the water level was not excessive. Id. at
1651. Hence, I conclude that the Judge erred in rejecting Consol’s efforts to monitor water levels
in the bleeder system as a mitigating circumstance. These efforts may not be sufficient to offset
the facts described by Commissioner Jordan as constituting high negligence, slip op. at 26-28,
but they do represent an effort by Consol to monitor the water levels, and should be considered
as a mitigating factor on remand.
Third, the Judge erred in her evaluation of Shift Foreman Price’s actions on February 5,
2013. After Stalnaker returned from his unsuccessful attempt to complete the examination of all
of the evaluation points, Price directed Saunders to attempt to complete the examination, starting
from the E-22 side of the bleeder system. 37 FMSHRC at 1631. The Judge characterized Price’s
action as “willful exposure [of Saunders] to the hazard” of the dangerous excessive water. Id. at
1649.
The record does not indicate that Price knew that Saunders would encounter hazardous
accumulations of water when attempting to finish the examination from the opposite end of the
system. Price’s knowledge of the water conditions in the bleeder came from Stalnaker, who
previously had only attempted to examine from paths available on the E-15 side. Although Price
assumed that Saunders would also encounter some water when walking from the opposite side,
this belief does not represent a willful disregard of a hazard as it is permissible, at least according
to Inspector Young, for examiners to walk in up to 18 inches of water. Tr. 46, 450, 458.
Moreover, the record does not indicate that Price directed Saunders to walk through hazardous
water to complete the examination, as is suggested by the Judge’s finding of “willful exposure”.
I conclude that Price acted reasonably when he assigned Saunders to begin an
examination from the opposite end of the bleeders. Price acted in a manner that was consistent
with Consol’s obligation to conduct a weekly examination and to check for dangerous methane
accumulations that may have built up in the bleeders. See 30 C.F.R. § 75.364(a). Price
understood that Saunders was familiar with the area, and thus capable of navigating alternative
5

Jamie Greene, the regular examiner of the bleeder system, testified that he walked the
area several times in the days before Stalnaker performed the examination and tended to pumps
that were down so that Stalnaker (who substituted for Greene on the day at issue) would not have
to walk through hazardous levels of water. Greene testified that he did not see excessive water.
Tr. 495-96, 519-20. The Judge credited Greene’s testimony. 37 FMSHRC at 1651.

39 FMSHRC Page 1931

routes in the E bleeder system to potentially access the evaluation points. See Tr. 458.
Accordingly, I conclude that Price should not have been identified as being responsible for the
“willful exposure” of Saunders to the hazards of the excessive water.
The Judge’s characterization of Price’s actions was not inconsequential in the Judge’s
overall evaluation of Consol’s negligence. The Judge rejected the operator’s installation of a
bubbler system to monitor water levels in the bleeder system as a mitigating circumstance
because of “the willfully negligent actions of Stalnaker, Price and Saunders.” 37 FMSHRC at
1649-50. On remand, Price’s actions should not be considered as “willfully negligent”.
I cannot agree with Commissioner Jordan’s analysis of negligence because it focuses
entirely on the previous citations for excessive water and the actions of Stalnaker and Saunders
in entering the water, without considering Consol’s efforts between December 10, 2012 and
February 5, 2013. At the same time, I cannot join the analysis of negligence by Acting Chairman
Althen and Commissioner Young because it places too much emphasis on the Judge’s error in
finding that an injury was “highly likely” with respect to gravity. Moreover, their opinion does
not fully consider the actions of Stalnaker and Saunders in entering the water, and — with
respect to Stalnaker — the fact that he improperly donned chest waders in entering the water.6
A principal difference between my view and that of Acting Chairman Althen and
Commissioner Young is in how we regard the actions of Stalnaker and Saunders. I see the
actions of Stalnaker and Saunders in entering the hazardous water in the bleeders as relevant to
the violation. In contrast, my colleagues focus exclusively on the accumulation of the water, and
regard the actions of Stalnaker and Saunders as relevant only insofar as their entering the water
was foreseeable to other members of Consol’s management. See slip op. at 14.7
Consol’s ventilation plan requires that the bleeders be “safe for travel”. Gov’t Ex. 3. If
the bleeders are unsafe (because of, for instance, an accumulation of water), and they are traveled
while unsafe, then the fact that the unsafe travel occurred exacerbates the negligence of the
operator. The foreseeability of the travel would be an issue if those who did the traveling were
only rank-and-file miners. But here, Stalnaker and Saunders were — as the Judge found —
6

This is particularly relevant to their consideration of unwarrantable failure, as discussed

below.
7

Acting Chairman Althen and Commissioner Young correctly observe that MSHA did
not specifically cite Consol for the actions of Stalnaker and Saunders in entering the hazardous
water. See slip op. at 20 n.10. However, the Judge included their actions in her evaluation of both
negligence and unwarrantable failure. 37 FMSHRC at 1648-50, 1654. It is the Judge’s decision,
and not the MSHA citation, which the Commission reviews on appeal. Moreover, Consol has not
argued on appeal that the Judge erred in considering the actions of Stalnaker and Saunders as
relevant to the operator’s negligence and alleged unwarrantable failure. Rather Consol’s
argument is that Stalnaker and Saunders did not act in a negligent manner because they believed
that they were not exposing themselves to a hazard. PDR at 21. According to Consol, Stalnaker
and Saunders acted upon a reasonable good faith belief, and even if the belief was not
reasonable, the operator should not be held responsible because the agents’ conduct was
somehow “idiosyncratic”. Id.

39 FMSHRC Page 1932

members of the management of the Enlow Fork Mine. 37 FMSHRC at 1648. As such, their
negligence is directly imputed to Consol. Rochester & Pittsburgh Coal Co., 13 FMSHRC 189,
194-96 (Feb. 1991) (holding that negligence of mine examiner is imputed to operator for
purposes of determination of unwarrantable failure). Hence, the foreseeability of the actual
unsafe travel is not an issue here.
In summary, I would remand the case on the issue of negligence in order for the Judge to
consider the issue holistically, without regard to the Part 100 definitions of the degrees of
negligence. The Judge should consider both (1) the actions of Consol in dealing with the problem
of flooding in the bleeders in light of the two previous citations and the explicit warning by
MSHA, and (2) the actions of Consol agents Stalnaker and Saunders in willfully entering the
hazardous water. The Judge may, but need not, reach the conclusion that the violation of the
ventilation plan was characterized by high negligence.
Unwarrantable Failure
The Judge’s decision contains a lengthy discussion of unwarrantable failure, and looks at
all of the factors which the Commission has identified as relevant in IO Coal Co., 31 FMSHRC
1346, 1350-57 (Dec. 2009). See 37 FMSHRC at 1651-54. Her analysis is, for the most part, wellreasoned and supported by substantial evidence. Contrary to the opinion of Acting Chairman
Althen and Commissioner Young, I find no reversible error in the Judge’s discussion of the
extent of the violative condition,8 the length of time the violation existed,9 whether the violation
was obvious,10 Consol’s knowledge of the existence of the violation,11 and whether Consol had
been put on notice of the need for greater efforts for compliance.
However, I believe that errors made by the Judge in her analysis of the factors of danger
and Consol’s efforts to achieve compliance require remand for reconsideration.
With respect to the factor of danger, the Judge’s consideration was necessarily informed
by her previous determination that the violation produced a high likelihood of fatal injuries. As
8

Even if the water itself did not extend for as much as half a mile, it was unquestionably
an extensive flooding in two separate areas of the bleeder system. Such error as the Judge made
in saying “the water stretched for nearly half a mile”, 37 FMSHRC at 1651, is trivial and
harmless. The accumulation of water took three days to be abated. Tr. 153-54, 233; 37 FMSHRC
at 1636.
9

Crediting the testimony of Greene, the Judge reasonably concluded that the violation
occurred less than 48 hours from the time the citation was written. 37 FMSHRC at 1651.
10

My colleagues fault the Judge for finding the violation to be obvious since it was not
known until Stalnaker entered it. They ignore the fact that after it became known, both Stalnaker
and Saunders entered the deep water. Since Stalnaker and Saunders were agents of Consol, their
actions in entering the hazardous water is a proper context for considering the obviousness of the
violation, which is what the Judge did.
11

See note 8, supra.

39 FMSHRC Page 1933

discussed supra, the determination of high likelihood is not supported by substantial evidence.
This undercuts the Judge’s findings as to danger with respect to unwarrantable failure. On
remand, the Judge should revisit her findings as to danger in light of her reconsidered findings
with respect to gravity.
With respect to Consol’s efforts to abate the violative condition, the Judge focused on the
fact that miners were exposed to the hazards of the excessive waters before abatement efforts
became effective. 37 FMSHRC at 1654. She should have also considered Consol’s efforts to
control and monitor water in the bleeder system before Stalnaker entered the water, and the
extent to which those efforts were sufficient to the task. Additionally, the fact that efforts were
made after miners were exposed to the hazard does not render them meaningless for purposes of
unwarrantable failure analysis.
Just as the Judge may well find high negligence on remand, she may also find that the
violation was characterized by unwarrantable failure. But she must first reconsider her findings
as to the factors of danger and efforts at abatement, and then weigh all of the unwarrantable
failure factors together.
B. Order No. 7024069
With respect to the separate recording violation, the Judge concluded that Consol
demonstrated high negligence, citing management’s knowledge of the hazards, the multiple
failures to record the hazards, and the mine’s general history of failing to address water
accumulations. The Judge found that Giavonelli’s decision to sign a record with two obvious
deficiencies — (1) a failure to list known hazards and (2) a failure to record air measurements for
two of the evaluation points — was aggravating conduct. The Judge reasoned that a miner
looking at the record would erroneously assume that the bleeder was safe for travel. In addition,
the Judge found that any efforts the operator took to correct the underlying conditions were
irrelevant to the negligence associated with the failure to record those conditions. 37 FMSHRC
at 1658-61.

39 FMSHRC Page 1934

S&S
With regard to S&S, I would affirm the Judge’s Decision, and join the opinion of
Commissioner Jordan.
Gravity
With regard to gravity, I join the opinion of Acting Chairman Althen and Commissioner
Young. The Judge’s finding of a high likelihood of fatalities is not supported by substantial
evidence. On remand the Judge should determine the severity of injury (ranging from broken
bones to fatality) which was reasonably likely to have occurred as a result of the hazard
contributed to by the violation.
Negligence
I would affirm the Judge’s conclusion that Consol’s failure to identify hazards in the
weekly examination record book should be characterized as high negligence. In this regard, I
fully join the opinion of Commissioner Jordan, slip op. at 32-34, 34 n.9, insofar as it applies to
the negligence issue.
In contrast, my colleagues Acting Chairman Althen and Commissioner Young would
vacate and remand the Judge’s negligence analysis, unpersuaded that a knowing violation by
mine management constitutes aggravated conduct. They would direct the Judge to reconsider
two specific arguments.
First, they assert that the Judge should consider Consol’s efforts to abate the water
accumulations as relevant, despite the Judge’s initial conclusion that those efforts were irrelevant
to the recording violation. 37 FMSHRC at 1660 (“This is completely irrelevant to the issue. The
dangers associated with an inadequate examination are not completely eliminated by correcting
the underlying condition.”) I disagree with my colleagues. Even if Consol had completely
removed the water after the examinations by Stalnaker and Saunders, its duty to record the
hazards observed during the examination would not be altered. Accordingly, I conclude that the
Judge was correct in her determination that abatement efforts were not relevant.
Second, my colleagues suggest that Mine Foreman Giavonelli’s signing of an incomplete
exam report may not demonstrate aggravated conduct. They believe that any person viewing the
examination record would have understood that it was incomplete. My colleagues miss the point.
Giavonelli signed the examination report with blank spaces by the evaluation points, without any
indication on its face that the spaces were blank or the examination incomplete at the time he
signed it. This practice invites an examiner to complete the examination without having to
approach the mine foreman again. As a result, the circumstances allow the examination report to
be subsequently modified without indication on the face of the document. More importantly, in
this case, Giavonelli knew that he was signing an examination report that was not completed
because the examiners were prevented from accessing evaluation points because of hazardous
conditions that weren’t listed on the examination report. Only the section 103(g) complaint and
the arrival of MSHA inspectors caused the discovery that the examination record was

39 FMSHRC Page 1935

incomplete. The Judge was correct in concluding that Giavonelli’s signature on an incomplete
examination record, together with the failure to record the hazardous conditions, indicates an
aggravated lack of care.
Unwarrantable Failure
The Judge’s analysis of unwarrantable failure comprises one paragraph in which she
states: “The facts and arguments of the parties regarding the unwarrantable failure designation in
Order No. 7204069 are identical to those in Citation No. 7204068. Therefore the findings
regarding Citation No. 7204068 are incorporated here by reference.” 37 FMSHRC at 1661
(citation omitted). However, as noted by Acting Chairman Althen and Commissioner Young,
with whose opinion I agree on this issue, the facts and issues regarding unwarrantable failure in
the order, while overlapping in many respects with the citation, are not congruent with the
citation.
The analysis of the factor of whether Consol had been put on notice of the need for
greater efforts for compliance is certainly different for the order. Unlike the citation, where
MSHA had issued two recent citations for excessive water in the bleeder system and had
specifically warned Consol to improve its compliance with the “safe for travel” provision of the
ventilation plan, no such citations or warnings had been issued that Consol needed to improve its
recording of weekly examinations.
The issues of knowledge and obviousness are also different for the order. With the
citation, knowledge and obviousness relate to flooding in the bleeder system. With the order,
knowledge and obviousness relate to what Consol officials put in the record book. Clearly, they
had knowledge, and the violation was (or should have been) obvious.
As to abatement, the citation involves the question of how the Consol officials addressed
a known problem of flooding in the bleeder system, both before and after the immediate problem
was discovered on February 5, 2013. As described supra, this is a complex issue. However, with
the order, the issue of abatement is quite clear. Consol not only failed to abate the violation, but
compounded it when Mine Foreman Giavonelli signed the book, attesting that it was correct and
accurate.

39 FMSHRC Page 1936

The issues of the extent and duration of the violation were relevant in the context of the
citation, but probably are not relevant in the context of the order.
Therefore, the issue of whether the failure to record hazardous conditions in the weekly
examination record book was an unwarrantable failure must be remanded to the Judge for
reconsideration.12

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

12

My colleagues Acting Chairman Althen and Commissioner Young take me to task for
“essentially opin[ing] on each unwarrantable failure element”, and instruct the Judge on remand
that she “need not accord any weight whatsoever to Commissioner Cohen’s premature statement
of his personal view of factual issues.” See slip op. at 25 n.16. What I have said here about the
knowledge and obviousness of the recording violation should be manifest even to my colleagues
in that Stalnaker and Saunders had each personally viewed, and entered, the accumulations of
water before they recorded in the record book that there were no hazardous conditions in the
bleeder system. What I have said here about the issue of abatement flows directly from what I
said supra with regard to Mine Foreman Giavonelli’s signature on an incomplete examination
record constituting aggravated lack of care. The Judge on remand is, of course, not bound to
accept my view of Giavonelli’s negligence (in that the finding of high negligence regarding
Order No. 7024069 is being affirmed in result without a Commission majority), but probably can
figure that out without my colleagues’ help.

39 FMSHRC Page 1937

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

October 19, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket Nos. KENT 2012-749
KENT 2012-904
KENT 2012-1085

NALLY & HAMILTON ENTERPRISES,
INC.

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners
DECISION
BY THE COMMISSION:
These proceedings arise under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et. seq. (2012) for violations of 30 C.F.R § 77.1001 and 30 C.F.R. § 77.1713(a). At
issue is whether substantial evidence supports determinations made by the Judge in overturning
“significant and substantial” (“S&S”) designations accompanying a citation and order issued to
Nally & Hamilton Enterprises, Inc. by the Department of Labor’s Mine Safety and Health
Administration.

39 FMSHRC Page 1938

Acting Chairman Althen and Commissioner Young vote to affirm the Judge’s decision,
while Commissioner Jordan and Commissioner Cohen vote to reverse the Judge’s decision. The
effect of the split decision is to allow the Judge's decision to stand as if affirmed. Pennsylvania
Elec. Co., 12 FMSHRC 1562 (Aug. 1990), aff’d on other grounds, 969 F.2d 1501 (3d Cir. 1992).

/s/ William I. Althen
William I. Althen, Acting Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

39 FMSHRC Page 1939

COMMISSION ORDERS

39 FMSHRC Page 1940

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C. 20004-1710

October 10, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. VA 2014-243
Docket No. VA 2014-244
Docket No. VA 2014-364

v.
Docket No. VA 2014-365
Docket No. VA 2014-383
A & G Coal Corporation
DIRECTION FOR REVIEW AND ORDER
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). On August 16, 2017, after a representative of A & G Coal
Corporation (“A & G”) failed to appear for a previously scheduled conference call, a
Commission Administrative Law Judge issued an Order to Show Cause directing the operator to
respond by August 28, 2017, or risk being held in default. On August 30, 2017, not having
received a response from A & G, the Judge issued an Order of Default dismissing the civil
penalty proceedings.
On September 29, 2017, the Commission received a Petition for Discretionary Review
from A & G seeking to set aside the Judge’s Order of Default and remand the matter to the Judge
for a hearing. PDR at 1. A & G’s petition implicates several questions, including whether the
Order to Show Cause was appropriate in this matter, whether procedural defects existed with the
show cause order, and whether the process the Judge followed complied with the due process
requirements of the Constitution. Foremost, although the Judge received confirmation that the
show cause order was received and signed for,1 Order of Default at 1–2, in an affidavit
supporting A & G’s petition, a representative for the operator avers that he did not receive the
Judge’s August 16 show cause order and could not find anyone in the company’s offices who
had received the order. Aff. of Patrick Graham at 3. A & G asserts that it only learned of the
show cause order when the operator received the Judge’s default order. PDR at 4. The
representative acknowledges that he failed to appear at the conference call, and he avers that he

1

The record contains a certified mail delivery receipt showing a signature by Leslie

Wells.

39 FMSHRC Page 1941

had intended to contact A & G’s legal counsel to advise him of the call but failed to do so. Aff.
of Patrick Graham at 2.2
Under the Mine Act and the Commission’s procedural rules, 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)(A)(i); 29 C.F.R. § 2700.70(a). We hereby grant A & G’s timely
filed petition for discretionary review.
In evaluating requests for relief from orders of default, the Commission has found
guidance in Rule 60(b) of the Federal Rules of Civil Procedure and has granted relief on the
basis of mistake, inadvertence, excusable neglect, or another reason justifying relief. 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”); Jim Walter Res., Inc., 15 FMSHRC 782, 787 (May 1993).
We also have observed that default is a harsh remedy and that, if the defaulting party can make a
showing of good cause for a 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).
A & G alleges that it did not timely respond to the Judge’s Order to Show Cause because
the official representing the operator in this matter did not receive the order. The present record
is not clear as to what happened to the show cause order after it was delivered and signed for.3

2

We appreciate our colleague’s views, but agree with him that it is premature to rule on
the issues he raises in his separate opinion. No inference relevant to the merits of this case should
be drawn from our decision to neither join nor rebut his suggestions on those issues.
3

According to the Commission’s records, both the show cause order and the subsequent
default order were sent to Southern Coal Corporation at an address in Roanoke, VA. It appears
that, at least at one time, Southern Coal Corporation was affiliated with A & G. Aff. of Patrick
Graham at 2. Although this address does not otherwise appear in the record, A & G
acknowledges receiving the Order of Default, but not the Order to Show Cause.

39 FMSHRC Page 1942

Having reviewed A & G’s request, in the interest of justice, we remand this matter to the
Judge to determine whether relief from the default is warranted and for further proceedings as
appropriate pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.
Part 2700.

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Michael G. Young
Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr.
Robert F. Cohen, Jr., Commissioner

39 FMSHRC Page 1943

Acting Chairman Althen, concurring:
In order to form a unanimous decision, I join in the Commission’s remand. I write
separately to note that the present order pretermits the path I would have preferred. I would have
granted review of whether the Judge abused his discretion in issuing a default order for $321,000
in a factually contested proceeding with the parties engaged in settlement discussions as a
sanction for missing a telephone conference on whether to extend a stay.1 A fully articulated
decision by the Commission would have provided guidance for future considerations of default.
Because we have not granted review of that issue and the parties have not briefed it, it
would be premature to opine on the outcome of such a review. Nonetheless, for purposes of the
Judge’s reconsideration and for use in other default proceedings, I find it useful to discuss basic
default principles. Of course, I write only my understanding of default principles.
All Commissioners agree that default is a harsh remedy. It is not an action for a Judge to
take merely because he/she has the power to do so. Declaring a default in an ongoing contested
action requires a careful analysis and explanation of the basis for such harsh action.
Indeed, along with us, federal courts have emphasized the harshness of default and their
strong disfavor of defaults of contested cases.2 The D.C. Circuit has stated: “Default judgments
are not favored by modern courts, perhaps because it seems inherently unfair to use the court’s
power to enter and enforce judgments as a penalty for delays in filing. Modern courts are also
reluctant to enter and enforce judgments unwarranted by the facts.” Jackson v. Beech, 636 F.2d
831, 835 (D.C. Cir. 1980). If a party is seeking relief from a default, “all doubts are resolved in
favor of the party seeking relief.” Id. at 836. In E.F. Hutton & Co., Inc. v. Moffatt, the Fifth
Circuit opined that “[t]he entry of judgment by default is a drastic remedy and should be resorted
to only in extreme situations.” 460 F.2d 284, 285 (5th Cir. 1972). Much more recently, in Drone
Technologies, Inc. v. Parrot S.A., Parrot Inc., the Federal Circuit examined the Third Circuit’s
standards and found the following:
A dismissal or default is a “drastic” sanction, Poulis, 747 F.2d at 867, which is
why the Third Circuit has “established [a] strong presumption against sanctions
that decide the issues of a case,” Ali, 788 F.2d at 958. Accordingly, a dismissal or
default sanction is “disfavored absent the most egregious circumstances.” United
States v. $8,221,877.16 in U.S. Currency, 330 F.3d 141, 161 (3d Cir. 2003).
838 F.3d 1283, 1301 (Fed. Cir. 2016).

1

Our resolution also avoids possible sua sponte discussion of whether, upon default, a
Judge may assess the penalty sought by MSHA without evidence on, or consideration of, the
penalty factors the Mine Act requires the Commission itself to consider in assessing penalties.
Notably, the Commission’s procedural rules require Judges entering default orders to assess
“appropriate penalties,” not simply those proposed by the Secretary. 29 C.F.R. § 2700.66(c).
2

This is not a case where the operator failed to contest the citation or penalty.

39 FMSHRC Page 1944

In deciding default issues, the Third Circuit developed a six factor test of: (1) the extent
of the party’s personal responsibility; (2) whether the party had a history of dilatoriness; (3)
whether the conduct of the party or the attorney was willful or in bad faith; (4) the
meritoriousness of claims or defenses; (5) the prejudice to the adversary caused by the party’s
conduct; and (6) the effectiveness of sanctions other than dismissal or default. Poulis v. State
Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). Separately, courts within the District of
Columbia Circuit “must consider whether ‘(1) the default was willful, (2) a set-aside would
prejudice plaintiff, and (3) the alleged defense was meritorious.’” Gray v. Staley, 310 F.R.D. 32,
35 (D.D.C. 2015) (quoting Keegel v. Key West & Caribbean Trading Co., Inc., 627 F.2d 372,
373 (D.C. Cir. 1980)).
Summarized, these tests provide a consistent basis for considering default. Analysis starts
with the premise that default is a drastic sanction warranted only by egregious circumstances.
With that premise, a party’s actions warrant default when, on balance, the party is acting
willfully for a nefarious purpose such as deliberate delay or avoidance of discovery, the other
party suffers prejudice, the defaulter does not have a reasonable contested case, and lesser
sanctions would not satisfy the ends of justice.
The Judge must evaluate whether a failure is a willful action, taking into account prior
conduct during the proceeding. Here, this factor would require an analysis of whether the failure
to be on the scheduling conference call indicated a willful action—that is, an action tantamount
to expression of a desire not to contest the case or an attempt to subvert proper prosecution of the
case.
In this respect, it is notable, as my colleagues point out, that the record involves
ambiguities.3 Importantly, my colleagues note that Patrick Graham filed an affidavit stating that
he had intended to notify the operator’s legal counsel of the scheduling of the status conference
but did not do so. This highlights that the operator had notified the Judge of a substitution of
counsel and provided the name, address, and email of the new lawyer. Notice of Withdrawal and
Substitution of Counsel, filed January 27, 2017.
That lawyer failed to enter a formal notice of appearance, as he should have. However,
after the prior representative withdrew and notified the court of the name and address of new
counsel, the Judge was aware that the party had designated a new legal counsel. Either the court
failed to note the substitution of counsel or did not accept it prior to a formal entry of
appearance. In either event, the Judge sent neither the notice of the telephone conference to
discuss the stay nor the Order to Show Cause to the attorney designated by the operator as its
representative. The Fifth Circuit has held that “[t]he plaintiff should not be punished for his
3

The emailed Order to Show Cause did not go through. The show cause order apparently
was mailed to an address that was not the address of record. The corporate addressee on the show
cause order was Southern Coal Corporation rather than A&G Coal. Apparently, the person
addressed, Patrick Graham, had not entered an appearance as a representative of the party. A
person named Leslie Wells signed for the mailed notice of the show cause order, but the Judge
addressed the notice to Southern Coal Corporation, and it is not clear who employed Wells.
Now, Graham swears that he did not receive the show cause order.

39 FMSHRC Page 1945

attorney’s mistake absent a clear record of delay, willful contempt or contumacious conduct.”
Blois v. Friday, 612 F.2d 938, 940 (5th Cir. 1980). A Judge must be mindful that “[d]efault
judgments were not designed as a means of disciplining the bar at the expense of the litigants’
day in court.” Jackson, 636 F.2d at 837.
As a second factor in a default case, a Judge must consider whether the other party has
suffered any meaningful prejudice from the missed action. Here, that action is a missed
telephone conference on whether to extend an already lengthy and agreed to stay. Meanwhile, it
appears the parties were actively discussing settlement.
Another factor is the merits of the party’s positon—that is, is the matter a contested
action in which the party advances a substantive position. Here, because the Judge had stayed
this case, it is not clear whether there was a basis in the record to evaluate the merits of the case.
However, the Secretary had not sought summary judgment. Further, given the occurrence of
settlement discussions, there obviously were disputed facts. Indeed, the occurrence of settlement
discussions suggests the Secretary may have been amenable to resolving all matters for a lesser
penalty than MSHA’s original assessment. The missed conference call was on a non-substantive
issue rather than a matter such as refusing discovery or a motion for summary judgment.
Another consideration is whether a lesser sanction than default could effectively
remediate the party’s failure. Here, for example, the Judge might have considered whether
ending the stay and setting the case for hearing would have effectively sanctioned the operator
for missing the telephone conference on that scheduling matter while permitting the contest of
the $321,000 penalty to continue.
In short, using this case as an example, the bottom-line question is whether the failure to
join a telephone conference call to discuss lifting the stay and setting a hearing date in a
$321,000 case with contested facts, ongoing discussions of settlement, and the attorney desired
by the operator not contacted warranted a default and immediate imposition of the MSHAassessed $321,000 penalty. As noted at the outset, the parties have not briefed that question. I
specifically do not express any opinion on whether I would have found an abuse of discretion.

/s/ William I. Althen
William I. Althen, Acting Chairman

39 FMSHRC Page 1946

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
PHONE: (202) 434-9933 | FAX: (202) 434-9949

October 3, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2016-0123
A.C. No. 46-01436-396817

CONSOLIDATION COAL CO. now
THE OHIO COUNTY COAL CO.,
Respondent.

Mine: Shoemaker Mine

DECISION APPROVING SECOND SETTLEMENT MOTION
ORDER TO PAY
Before: Judge Moran
This case is before the Court upon a petition for assessment of a civil penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977. On January 19, 2017, the
Secretary filed his first motion to approve settlement. The originally assessed total amount was
$72,500.00 and the proposed settlement was for $39,875.00. The Secretary also requested that
two citations be modified, as indicated below. On June 21, 2017, the Court issued a decision
denying the settlement motion because there was insufficient information to justify the reduced
penalty amounts and modifications. The Secretary then filed a Motion for Reconsideration along
with an amended settlement motion on June 29, 2017.
Regarding Citation No. 9083151, which alleged a violation of 30 C.F.R. § 75.202(a), in
the original motion, the rationale presented for the proposed penalty reduction stated only,
“Though there was visible deterioration to the ribs, Respondent presented evidence that this
condition did not exist for an extended period of time. In consideration of this evidence, which
slightly mitigates negligence, and the risks inherent in proceeding to a hearing, the Secretary
agreed to reduce the penalty.” Secretary’s January 19, 2017 Motion to Approve Settlement at 3.
As the Court stated in its June 21, 2017 Order, it “does not consider an unadorned
assertion that the “Respondent presented evidence that this condition did not exist for an
extended period of time,” standing alone, as useful information ... if section 110(k) is to be
meaningful, it is patently insufficient for the Secretary to merely state that the Respondent
presented evidence that this condition did not exist for an extended period of time. Some basis
for the Respondent’s claim must accompany such an assertion.” June 21, 2017 Decision Denying
Settlement Motion at 4-5; n. 3 (emphasis in original).

39 FMSHRC Page 1947

As noted, following the Court’s denial of the settlement motion, on June 29, 2017, the
Secretary filed a motion for reconsideration, along with an amended settlement motion. In the
amended motion the Secretary presented the following regarding Citation No. 9083151:
This citation was issued in August 2015 due to visible deterioration of the ribs.
On June 10, 2015, the Operator issued a companywide safety memo instructing
miners to install additional rib bolts in the mains and on every corner. The
Operator was taking measures to address the poor rib conditions. However, the
state of this particular coal seam was such that the ribs were well-supported for an
extended period of time even without rib bolts, but due to abutment pressure from
longwall mining, the ribs could deteriorate quickly. The penalty under the regular
assessment criteria would have been $2,282.00. Therefore, the Secretary believes
Respondent’s negligence, while moderate, was somewhat less than the special
assessment markup and that a reduction in penalty in this instant case is consistent
with his enforcement responsibility of the Mine Act.
Secretary’s Amended Motion for Decision and Order Approving Settlement at 3.
In light of this information, the Secretary proposes a settlement amount of $6,513.00,
rather than the initially proposed penalty of $11,500.00, with no modifications to the citation.
Regarding Citation No. 9083289, which alleged a violation of 30 C.F.R. § 75.202(a), in
the Secretary’s original motion the rationale presented for the proposed penalty reduction for that
citation stated only, “Respondent presented evidence that, based on their size, consistency, and
location, the cited ribs would not have caused fatal injuries. In consideration of this evidence and
the risks inherent in proceeding to a hearing, the Secretary agreed to modify the type of injury
and reduce the penalty.” Secretary’s January 19, 2017 Motion to Approve Settlement at 3.
In the amended motion the Secretary presented the following regarding Citation No.
9083289:
The ribs cited in this citation were in a highly traveled area however, they were
located on the belt side, thus miners would rarely be exposed to the conditions.
Due to the location of the rib with respect to the belt, miners would not be directly
exposed to the full rib should it fall. The belt would take the brunt of the rib fall.
The penalty under the regular assessment criteria would have been $2,282.00.
Therefore, the Secretary believes Respondent’s injury designation should be
modified, the corresponding special assessment penalty markup reduced, and that
the modification and reduction in penalty are consistent with his enforcement
responsibility of the Mine Act.
Secretary’s Amended Motion for Decision and Order Approving Settlement at 3-4.
The Secretary also requested that the gravity of this citation be modified from “fatal” to
“permanently disabling.” In light of this information, the Secretary proposed a settlement amount
of $3,225.00, rather than the initially proposed penalty of $12,900.00.

39 FMSHRC Page 1948

Regarding Citation No. 9083153, which alleged a violation of 30 C.F.R. § 75.202(a), in
the Secretary’s original motion the rationale presented for the proposed penalty reduction for that
citation stated only
[t]hough the cited condition was in a traveled area, Respondent presented
evidence that this condition did not exist for an extended period of time. In
consideration of this evidence, which slightly mitigates the negligence, and the
risks inherent in proceeding to a hearing, the Secretary agreed to reduce the
penalty.
Secretary’s January 19, 2017 Motion to Approve Settlement at 3.
In the amended motion the Secretary presented the following regarding Citation No.
9083153:
This citation was issued in August 2015 due to visible deterioration of the ribs.
On June 10, 2015, the Operator issued a companywide safety memo instructing
miners to install additional rib bolts in the mains and on every corner. The
Operator was taking measures to address the poor rib conditions. However, the
state of this particular coal seam was such that the ribs were well-supported for an
extended period of time even without rib bolts, but due to abutment pressure from
longwall mining, the ribs could deteriorate quickly. The penalty under the regular
assessment criteria would have been $2,282.00. Therefore, the Secretary believes
Respondent’s negligence, while moderate, was somewhat less than the special
assessment markup and that a reduction in penalty in this instant case is consistent
with his enforcement responsibility of the Mine Act.
Secretary’s Amended Motion for Decision and Order Approving Settlement at 4.
In conjunction with this new information, the Secretary proposed a settlement amount of
$6,513.00, rather than the initially proposed penalty of $11,500.00.
Regarding Citation No. 9083292, which alleged a violation of 30 C.F.R. § 75.202(a), in
the Secretary’s original motion the rationale presented for the proposed penalty reduction for that
citation stated only:
Respondent presented evidence that, based on its size and consistency, the cited
rib would not have caused fatal injuries. Respondent also presented evidence that
this condition did not exist for an extended period of time. In consideration of this
evidence and the risk inherent in proceeding to a hearing, the Secretary agreed to
modify the type of injury and reduce the penalty.
Secretary’s January 19, 2017 Motion to Approve Settlement at 4.

39 FMSHRC Page 1949

In the amended motion the Secretary presented the following regarding Citation No.
9083292:
The rib was scaled down above the already sloughed out area, thus the rib fell on
top of sloughed out area, where miners would not travel. In addition, this area was
preshifted and the rib conditions did not exist during the preshift examination.
The state of this particular coal seam was such that the ribs would appear well
supported without rib bolts for an extended period of time, but as the longwall
advanced, the ribs could deteriorate quickly, often within a few hours of mining.
The condition of this rib deteriorated quickly due to longwall abutment pressure.
The penalty under the regular assessment criteria would have been $2,282.00.
Therefore, the Secretary believes Respondent’s injury designation should be
modified and the corresponding special assessment penalty markup reduced. The
Secretary also believes that Respondent’s negligence, while moderate, was
somewhat less than the special assessment markup and that the modification and
reduction in penalty are consistent with his enforcement responsibility of the
Mine Act.
Secretary’s Amended Motion for Decision and Order Approving Settlement at 5.
The Secretary also requested that the gravity of this citation be modified from “fatal” to
“permanently disabling.” In light of this information, the Secretary proposed a settlement amount
of $4,324.00, rather than the initially proposed penalty of $17,300.00.
Regarding Citation No. 9083154, the Respondent has agreed to pay the full proposed
penalty of $19,300.00, with no modifications. That citation alleged a violation of 30 C.F.R. §
75.223(a).
In further support of the Secretary’s Motion for Reconsideration, he also stated,
As indicated in Exhibit B, the parties reached a settlement agreement two days before a
hearing on the matter was set to commence. In reaching the settlement, the undersigned
reviewed the Citations and inspectors notes, and engaged in extensive discovery with the
Operator. The undersigned also spoke to the issuing inspectors at length and discussed
the citations with the Operator during course of settlement negotiations.
Secretary’s June 29 Motion for Reconsideration at 2.

39 FMSHRC Page 1950

Conclusion
As detailed above, the amended motion now provides significantly more factual
information in support of the proposed penalty amounts and modifications.1 Based upon the
factual support offered in the amended motion to approve settlement, the Court has considered
the representations submitted in this case and concludes that the proffered settlement is
appropriate under the criteria set forth in section 110(i) of the Act.
The settlement amounts are as follows:
Citation No. Proposed Penalty
9083151
$11,500.00
9083289
$12,900.00
9083153
$11,500.00
9083154
$19,300.00
9083292
$17,300.00
TOTAL:

Settlement Amount
$6,513.00
$3,225.00
$6,513.00
$19,300.00
$4,324.00

$72,500.00

$39,875.00

WHEREFORE, the motion for approval of settlement is GRANTED.
It is ORDERED that Citation Nos. 9083289 and 9083292 be MODIFIED to from fatal
to permanently disabling.
The Respondent is ORDERED TO PAY a penalty of $39,875.00 within 30 days of this
decision.2

/s/ William B. Moran
William B. Moran
Administrative Law Judge

1

Under Commission Procedural Rule 31(b), a motion to approve settlement must
“include . . . facts in support of the amount of penalty agreed to in settlement.” 29 C.F.R.
§ 2700.31(b)(1).
2

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO
63179-0390

39 FMSHRC Page 1951

Distribution:
Jane Hwang, Office of the Solicitor, U.S. Department of Labor, Suite 630E, The Curtis Center,
170 S. Independence Mall West, Philadelphia, Pennsylvania, 19106
Jason Hardin, Fabian and Clendenin, 215 S. State Street, Suite 1200, Salt Lake City, Utah 84111
Artemis Vamianakis, Fabian and Clendenin, 215 S. State Street, Suite 1200, Salt Lake City, Utah
84111
/KP

39 FMSHRC Page 1952

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
PHONE: (202) 434-9933 | FAX: (202) 434-9949

October 3, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2017-0158
A.C. No. 46-07809-426807

ARGUS ENERGY WV, LLC,
Respondent.

Mine: Kiah Creek Preparation Plant

DECISION GRANTING MOTION TO WITHDRAW NOTICE OF CONTEST,
FOLLOWING COURT’S REJECTION OF INADEQUATE SETTLEMENT MOTION
ORDER OF DISMISSAL
Before: Judge Moran
This case is before the Court upon a petition for assessment of a civil penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977. At issue is one section 104(a)
citation, alleging a violation of 30 C.F.R. § 77.1606(a). This standard is titled “Loading and
haulage equipment; inspection and maintenance,” and provides in relevant part “[m]obile loading
and haulage equipment shall be inspected by a competent person before such equipment is
placed in operation. Equipment defects affecting safety shall be recorded and reported to the
mine operator.” 30 C.F.R. § 77.1606(a). The citation alleged:
The spot mirror was busted out on the Komatsu HD785 Haulage Truck Co. No.
137. Equipment defects affecting safety shall be recorded and reported to the
mine operator. There was no pre-operational record completed and reported to the
mine operator on this date for this piece of mobile equipment. This truck was
being operated to haul overburden on mine property.
Citation No. 8128099.
The inspector marked this alleged violation as S&S, reasonably likely to lead to an illness
or injury, likely to lead to a fatal injury, affecting one person, and as moderate negligence. Id.
The alleged violation was abated with the installation of a new spot mirror, and the Secretary
proposed a civil penalty of $666.00. Secretary’s Petition, Ex. A.
Procedural History
Docket No. WEVA 2017-0158 was assigned to this court on April 19, 2017. On June 26,
2017, the Secretary filed a motion to approve settlement. The initial motion contained boilerplate
from the Secretary that, as the Court has previously noted, contravenes Congress’ command in
section 110(k) of the Mine Act that “no proposed penalty which has been contested before the

39 FMSHRC Page 1953

Commission… shall be compromised, mitigated, or settled except with the approval of the
Commission.”1 30 U.S.C. § 820(k) (emphasis added).
Accordingly, on June 28, 2017, the Court issued an order denying the settlement motion,
on the basis that the motion contained no factual information pertaining to the violation itself.
Rather, the Secretary pronounced that he,
has determined that the S&S and gravity determinations in the citation at issue shall be
modified as discussed above. Substantive modifications to citations and orders, including
the S&S designation, are within the prosecutorial discretion of the Secretary.
Mechanicsville Concrete Inc., 18 FMSHRC 877 (1996)” The Commission’s review of
settlement proposals involving such substantive modifications is limited to whether the
agreed-upon penalty amount is consistent with the agreed-upon substantive modification.
Here, a $134.00 reduction in the penalty from $666.00 to $532.00 is appropriate and
supported by the reduction in the gravity findings.”
Secretary’s June 26, 2017 Motion at 2-3.
As previously discussed by this court, the Secretary’s reference to Mechanicsville reveals
a mistaken conflation of his prosecutorial discretion to vacate citations with the claim that he has
unbounded discretion to determine what information must be provided in the context of
settlements. Argus Energy WV, LLC, 39 FMSHRC 1317, 1320 n. 5 (June 28, 2017) (ALJ
Moran). The Court further noted that if it accepted the Secretary’s claims, the Secretary could
present identical boilerplate language for any proposed modification, untethered from any casespecific facts. Id. at 1321.

1

The motion included the Secretary’s oft-stated language that, “In reaching this
settlement, the Secretary has evaluated the value of the compromise, the likelihood of obtaining a
better settlement, and the prospects of coming out better or worse after a trial. In deciding that
such a compromise is appropriate, the Secretary has not given weight to the costs of going to trial
as compared to the possible monetary results that would flow from securing a higher penalty. He
has, however, considered the fact that he is maximizing his prosecutorial impact in settling this
case on appropriate terms and in litigating other cases in which settlement is not appropriate. The
Secretary believes that maximizing his prosecutorial impact in such a manner serves a valid
enforcement purpose. Even if the Secretary were to substantially prevail at trial, and to obtain a
monetary judgment similar to or even exceeding the amount of the settlement, it would not
necessarily be a better outcome from the enforcement perspective than the settlement, in which
the alleged violation is resolved and can be used as a basis for future enforcement actions. A
resolution of this matter in which the violation is resolved is of significant value to the Secretary
and advances the purposes of the Act.” Secretary’s June 26, 2017 Motion to Approve Settlement
at 2. As noted herein, this language provides no useful section 110(k) information to the
Commission and, if accepted, would equate the Secretary’s presently unfettered authority to
vacate citations with his asserted scope of authority in the realm of settlements.

39 FMSHRC Page 1954

On July 7, 2017, the Secretary filed a motion to certify for interlocutory review the
Court’s order denying settlement. The motion sought certification of two questions:
1. Whether the ALJ erred in rejecting the Secretary’s interpretation of the term
“approval” in Section 110(k) of the Mine Act (30 U.S.C. § 820(k)), and instead
adopting a standard of review that fails to recognize that the Secretary is exercising
his statutory enforcement discretion when he proposes a settlement agreement?
2. Whether the ALJ erred in rejecting the Secretary’s position that modifications to the
gravity findings of an enforcement action, including whether a violation is significant
and substantial (“S&S”), are within the unreviewable enforcement and prosecutorial
discretion of the Secretary?
Secretary’s July 7, 2017 Motion to Certify and to Stay Proceedings at 1-2.
The Court denied the motion to certify on July 11, 2017, on the basis that immediate
review would not materially advance final disposition of the proceedings.
Shortly afterwards, the Court scheduled a conference call with the parties to set a date for
hearing. That call was canceled upon notification from the parties that the Respondent planned to
withdraw its contest and pay the proposed penalty, with no modifications to the single citation.
Subsequently, on August 4, 2017, the Respondent filed the instant submission, titled
“Notice of Withdrawal of Notice of Contest and Parties Joint Request That This Proceeding Be
Dismissed.” (“Notice”)2 The motion states that the Respondent has agreed to pay the originally
assessed amount of $666.00 in full, seeking “that its notice of contest of Citation Number
8128099 and the related penalty assessed for this violation be withdrawn, and that an order be
issued affirming this violation and assessing the proposed penalty of $666. … the Secretary is in
agreement with this withdrawal and with the proposed assessment of $666.” Notice at 1.
Discussion
Under Commission Rule 11 “[a] party may withdraw a pleading at any stage of a
proceeding with the approval of the Judge or the Commission.” 29 C.F.R. § 2700.11, Sec. v.
Performance Coal 34 FMSHRC 587, 592 (Mar. 2012) (Chief Judge Lesnick and Judge Miller).
As Administrative Law Judge David F. Barbour noted in Sec. v. Consolidation Coal, 1993 WL
396898 (Feb. 1993), “[h]aving withdrawn its contest, there remains no challenge to the
Secretary’s civil penalty petition, and it too is GRANTED.” Id. Administrative Law Judge
Thomas P. McCarthy observed, a Respondent’s withdrawal of contest makes a current civil
penalty proceeding moot and the “matter reverts back to the status quo ante prior to said
contest,” with the effect that the penalty as originally proposed by the Secretary is imposed.
Dickenson-Russell Coal Co., LLC, 35 FMSHRC 698 (Mar. 2013) (ALJ McCarthy).

2

The Court construes the Respondent’s notice as a motion and it will be referred to as
such in this decision.

39 FMSHRC Page 1955

The Court views the events, as recounted above, as yet another example of the
importance of the Commission’s role in the review of settlements, per the direction of Congress
under section 110(k) of the Mine Act.
The Court has considered the Respondent’s notice to withdraw its notice of contest and
the related penalty for the one citation in this matter and the request that an order be issued
affirming the violation and assessing the proposed penalty of $666 and the parties’ joint request
that the proceeding be dismissed. The Respondent’s notice of withdrawal is recognized and the
parties’ request that this proceeding be dismissed is GRANTED.
WHEREFORE, the motion to withdraw is GRANTED.
It is ORDERED that Respondent pay a penalty of $666.00 within 30 days of this order.3

/s/ William B. Moran
William B. Moran
Administrative Law Judge

Distribution:
Tiffany J. Fannin, Esq., Argus Energy WV, LLC, 2408 Sir Barton Way, Suite 325, Lexington,
KY 40509
Robert S. Wilson, Esq., U.S. Department of Labor, 1201 12th Street South, Arlington, VA 22202
/JM

3

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO
63179-0390

39 FMSHRC Page 1956

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9933 / FAX: 202-434-9949

October 19, 2017
HEATHER MULFORD,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. WEST 2017-0135-DM
MSHA Case No. WE-MD-2016-16

v.
ROBINSON NEVADA MINING
COMPANY,
Respondent.

Mine: Robinson Operation
Mine ID: 26-01916
DECISION AND ORDER

Appearances:

Heather Mulford, Ely, Nevada, pro se for the Complainant
Robert Delong, Esq., Reno, Nevada, for the Respondent

Before:

Judge Moran

This case is before the Court upon a complaint of discrimination under Section 105(c)(3)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(3) (“the Act”). A
hearing was held July 25-26, 2017, in Elko, Nevada. To establish a prima facie case of
discrimination under section 105(c)(1), a complainant must show that he/she engaged in a
protected activity and that the adverse action complained of was motivated, at least in part, by
that activity. For the reasons which follow, the Court finds that, while Heather Mulford engaged
in protected activity by asserting certain safety and health concerns in her MSHA complaint,
those claims were without any substance whatsoever and that the decision to terminate her
employment was not attributable to her making those claims. Thus, while Robinson terminated
Mulford, that adverse action was not motivated in any part by her protected activity.
A Preliminary Matter
At the outset of the hearing, the Court revisited its July 10, 2017 Order, precluding the
introduction of Respondent’s proposed exhibits, Nos. 4 through 15. Tr. 8-20. The Court then
announced at the hearing that it was reaffirming its earlier determination precluding those
exhibits. See July 25, 2017 Order Regarding Robinson’s Response to Order Precluding
Introduction, Reference, and Use of Respondent’s Proposed Exhibits Nos. 4 through 15. In
essence, the Order found that the Report amounted to trying Ms. Mulford based on conclusions
and actions taken by a state court prior to Mulford’s employment by Robinson, which had no
relevance at all to this discrimination action.

39 FMSHRC Page 1957

Ms. Heather Mulford’s MSHA Discrimination Complaint
Mulford’s discrimination complaint before MSHA alleges two cognizable grounds of
protected activity.1 First, she alleged that Robinson Mine’s safety manager, Mark Langston, may
have been drunk on the job several times. She claimed that Langston would come to work
smelling like booze, walking unsteadily, and acting erratically. Mulford reported Langston’s
possible intoxication to Respondent’s Human Resources Manager, Mr. Kim Kammerer. Second,
she alleged that Robinson employee Patrice Dunn may have been covering up positive drug test
results of an employee. This allegation arose from Mulford’s claim that Dunn’s daughter had
failed two drug tests.
Mulford gave a statement to MSHA special investigator Cory Owens on October 4, 2016
concerning her discrimination complaint. She was asked by MSHA on that date “[w]hat was
your protected activity?” Mulford Statement to MSHA at 3. Her response, in full, informed:
I still believe that it is an outside influence on Mark Langston and then a
secondary issue that happened towards the end of August. The issue in August
was positive drug test that came along with a workers comp claim. He really came
after me after I turned in the positive drug test to the state. This employee had two
positive drug tests in four months and filed two workers comp claims. The drug
test was about a week before the hearing aid issue came up. Then I wanted to
discuss it with HR who is Kim Kammerer. I told him about the drug tests, then
told him about Langston coming unglued on me about the hearing aids and I also
told him that Langston comes in the morning smelling like fresh booze. Langston
also sways down the hallway and in office.
Id.
In her October 4, 2016 statement, Mulford was also asked, in effect, what was the
adverse action against her. The first question on this issue was “[w]hy do you feel that the
company is retaliating against you?” Statement at 3-4.

1

Mulford’s discrimination complaint, reflected in her “Discrimination Report” before
MSHA, and her statement and interview with MSHA included claims outside of protected
activity. These involved allegations that Mark Langston was upset with her hearing deficit and
the amount of time it was taking for her to obtain hearing aids, and that Langston was
“disrespectful” to her from the start of her employment with Robinson Mine. Mulford’s
complaint also asserted that “the discrimination & disrespectful behavior from Langston cold be
from outside source from Reno, NV. In Reno [I] had been harassed & my employment
discriminated for 2 years. Please question Langston because it is not usual to mistreat total
strangers without outside influences.” Mulford Discrimination Report at 3. The Respondent’s
mine is in Ruth, Nevada. Tr. 271. The Court takes judicial notice that Reno, Nevada is more than
305 miles from Ruth.

39 FMSHRC Page 1958

Mulford answered,
I don’t feel that it is the company; I feel that it is Langston and Patrice Dunn.
Patrice used to take care of the workers comp claims but I took it over because
I’m a licensed nurse. Her daughter is the worker with the two failed drug tests and
workers comp claims, I feel that she was defrauding the State of Nevada by
covering up the positive drug test on the last comp claim.
Id. (italics added).
The second question on the issue inquired, “[h]ow did Mark Langston retaliate against
you?” Mulford October 4, 2016 Statement to MSHA at page 4. Mulford’s response was,
[b]esides the constant bull with the hearing and communication. My job
description was never realized[;] he switched me over to industrial hygienist
which I don’t have a degree in and have never done in my life. He ignored me like
[I] was invisible, I could not add suggestions to the safety team. He was a bully,
he micromanaged everybody’s job description and I was not allowed any
autonomy. He would talk to me like you would talk to your dog, he would give
orders rather than talking to [a] human being. Then the final was the letter that I
received from HR forcing [me] to take time off.
Id.
Before receiving testimony, as Ms. Mulford is a pro se complainant, the Court briefly
reviewed the necessary elements to establish discrimination under section 105(c) of the Mine
Act. It noted that “to prevail in such a case the complainant is required to show that he or she
engaged in protected activity, and that the adverse action taken was motivated at least in part by
that activity.” Tr. 23. The Court also spoke to the Respondent’s ability to rebut a Complainant’s
prima facie case, “by showing that there was no protected activity which occurred, or that the
adverse action was not motivated in any part by that protected activity.” Tr. 24. It added that a
Respondent can also still defend “affirmatively . . . by proving that even if they were motivated
by the miner's activity, they were also motivated by the miner's unprotected activity and they
would have fired or taken the adverse action against that individual in any event.” Tr. 24-25.
The importance of Hatfield v. Colquest Energy, Inc., 13 FMSHRC 544 (Apr. 1991)
(“Hatfield”).
In Hatfield, the Commission recognized that a miner cannot expand his pro se claim by
alleging matters not within the scope of the initial complaint and never investigated by MSHA.
13 FMSHRC at 546. In Sec. v. Hopkins County Coal, LLC, 38 FMSHRC 1317, June 24, 2016,
the Commission expounded upon its Hatfield decision, stating that “the miner’s complaint
establishes the contours for subsequent action.” Hopkins at 1340. It noted in Hopkins that
“Hatfield’s original complaint was general in nature and contained no indication of the new
matters apparently alleged for the first time in the amended complaint.” Id. at 1341 (citing
Hatfield at 546). The Commission held that the initial complaint formed the basis of MSHA’s

39 FMSHRC Page 1959

investigation. Id. After MSHA refused to act on that initial complaint, the miner could not
expand his pro se claim by alleging matters not within the scope of the initial complaint and
never investigated by MSHA. Hopkins at 1342 (emphasis added). The key element in these
matters is that the determination of the scope of the complaint is not constrained entirely by the
four corners of the miner’s complaint, but is also informed by MSHA’s ensuing investigation:
The Commission has previously held that ‘the Secretary’s decision to proceed
with a complaint to the Commission, as well as the content of that complaint, is
based on the Secretary’s investigation of the initiating complaint to [him], and not
merely on the initiating complaint itself.’ Sec’y o/b/o Callahan v. Hubb Corp., 20
FMSHRC 832, 837 (Aug. 1998); see Sec’y o/b/o Dixon v. Pontiki Coal Corp, 19
FMSHRC 1009, 1017 (June 1997); Hatfield, 13 FMSHRC at 546. If the content
of a discrimination complaint filed with the Commission is based on that which is
uncovered during the Secretary’s investigation, then it follows that the Secretary’s
authority to investigate in the first instance cannot be circumscribed by the early
and often uninformed statements made by a miner in his charging complaint.
Id. at 1326, n.15.
Accordingly, this Court considered the text of Mulford’s discrimination complaint before
MSHA as well as MSHA’s investigation interview of October 4, 2016.
At the outset of the hearing the Court spoke to the particulars of the Complainant’s case.
The purpose of this was to explain that some aspects of Ms. Mulford’s complaint were not
cognizable under the Mine Act. The Court had explained this before the hearing during
conference calls with the parties, but thought it would be useful to revisit the matter again.
Therefore, the Court noted that the Complainant could testify “about [her] experiences with Mr.
Langston, the safety manager regarding [her] claim that he showed evidence of being intoxicated
or having alcohol issues on the job.” Tr. 25. The Court noted that she “need not prove that he
was, in fact, intoxicated, however, but only that [she] raised this concern to management at
Robinson mining.” Tr. 25. The Court also noted that there is a safety standard pertaining to
alcohol at a mine site: 30 CFR § 56.20001. Tr. 26. The Court explained further that Mulford
could testify about “any bullying, hostility or micromanaging carried out by Mr. Langston or
others after [she] raised [her] safety concern about Mr. Langston.” Id.
The Court also noted that the Complainant could testify about her “experience with
Patrice Dunn regarding whether she was covering up positive drug tests for certain employees
and the basis for [her] claim in that regard.” Tr. 26-27. Last, the Court took note that Mulford’s
complaint includes two adverse actions allegedly taken against her. One was being reclassified as
an industrial hygienist, and the other her employment termination. Tr. 28. In this regard, the
Court emphasized that if the Complainant’s testimony strayed beyond things that she presented
to MSHA in her complaint, and in the investigation and the interview that she had with the
MSHA special investigator, then she would have gone outside of the four corners of her
complaint and that such matters could not be considered because that is prohibited by the
Commission’s Hatfield decision. The Court explained that the reason for that limitation is that
MSHA “has to have an opportunity to investigate complaints of discrimination in the first

39 FMSHRC Page 1960

instance. So it's only what [a complainant brings] to [MSHA’s] attention for them to investigate
that can be brought up in the subsequent hearing unless you brought another discrimination
complaint and filed new charges.” Tr. 29.
Findings of Fact
Testimony began with the Complainant, Heather Ann Mulford. Ms. Mulford is a
registered nurse. Tr. 42. She became a nurse in 1985 and is presently licensed as such. Id.
She applied for employment as an occupational health nurse at Robinson Nevada’s mine in Ely,
Nevada, in the spring of 2016. Tr. 44. Complainant’s Exhibit 1C, is the job announcement for the
position for which Mulford was hired. Tr. 46-47. Respondent’s Ex. R 18-2, is the same
document. Mulford learned of the job opening on the internet. Tr. 47. Mulford stated she was
hired as an occupational health nurse. Tr. 49. Also introduced was Respondent’s letter, dated
May 12, 2016, offering her the job. Ex. C 2; Tr. 51. Respondent’s Ex. R 23, is the same
document. The Court noted that exhibit C 2, describes the job offered as “Occupational Health
Nurse.” Tr. 52. Mulford accepted the job immediately and began work on June 6, 2016.
However, she stated that when she appeared for her first day on the job, her job was listed as
industrial hygienist and occupational nurse, with the hygienist position listed first. Tr. 54.
Complainant’s Ex. 17 C. That exhibit lists the position title as “industrial hygienist/nurse.” Id.
Mulford agreed that on her first day at work with the Respondent, June 6, 2016, she was
informed that her job was as an industrial hygienist/occupational nurse.2 Tr. 60. She viewed the
description as different from the position for which she was hired. That is to say, in her view, the
title, “industrial hygienist and occupational nurse,” is not the same as “occupational health
nurse.” Id. Mulford expressed her view that the industrial hygienist job usually requires at least
certification, and often a separate degree, and that she possessed neither. Tr. 60-61. She was
qualified only to be an occupational nurse. However, she did not immediately voice her concern
about this issue to Robinson. Instead, around mid-June, when her office email was being set up,
and her title was again listed as “industrial health/occupational health nurse,” she informed
Shane Anderson that could not work, as she lacked the degree or certification for that title. Tr.
62 and C’s Ex. C 3. According to Mulford, Anderson told her that Mark Langston wanted her to
2

The Court notes that, while for the sake of completeness, it has recounted Mulford’s
testimony regarding the occupational nurse and hygienist issue, this was not protected activity. In
addition, Respondent’s Exhibit R 18, a two page exhibit which pertained to the job
announcement and the job description, was admitted into the record. Tr.299-301. Respondent’s
Counsel noted and Mulford agreed that the exhibit included, under the responsibilities/ job
description, “[p]erform health risk assessments, industrial sampling, ergonomic surveys
throughout the mine site.” Tr. 302. However, Mulford added that it was “not the job title.” Tr.
302 (emphasis added). She acknowledged that those tasks were “discussed [ ] in our interviews
that I would help and learn how to do this [,adding] [b]ut it wasn't a change job [sic].” Tr. 302.
Further, Mulford’s objection to the industrial hygienist tasks was “[b]ecause it wasn't [her]
degree or [her] certification.” Tr. 304. In the Court’s estimation, Mulford erroneously conflated
the non-existent requirement for a degree or certification to perform hygienist duties with her
objection to including those duties in her job or more particularly, in her job title. Regardless,
this was not one of the grounds advanced in her claim of protected activity.

39 FMSHRC Page 1961

do that hygienist work. Tr. 64. Although Anderson informed Mulford that the mine would be
teaching her how to perform that work, she responded that was insufficient, as it was not
equivalent to possessing a degree. Id.
Returning to her testimony regarding the events associated with her being hired by
Robinson Mining, Mulford stated that she first had a telephone interview conducted by Mr. Kim
Kammerer, Shane Anderson, Mark Langston, and Tyler Wright. That was followed about a
month later by an in-person interview which occurred in Ely, Nevada. The same individuals
interviewed her as in her telephone interview, with Kammerer and Anderson leading the
interview team. Tr. 69. At the time of the second interview, the Complainant had no hearing aids
or other hearing assistance devices, nor did she possess any such devices. Tr. 70. It was not until
September 2016, that the Complainant acquired hearing aids. Tr. 71. During her in-person
interview, Mulford stated that she did not have significant hearing problems, although at times
she asked an individual to repeat himself. Tr. 72. No issue of her hearing ability was raised by
Respondent at the in-person interview. Id.
Robinson hired Mulford and, after about two weeks on the job, she was working as a
regular employee in her occupational health nurse role. Tr. 73. She stated that her work was
going well and there were no issues with her performance. Tr. 75. Her work involved workers’
compensation and HIPAA3 issues among other duties.
Mulford’s employment with Robinson ended on October 13, 2016, when she was
terminated. Tr. 79. While her employment began on about June 15, 2016 and ended as noted
above, she was laid off with full pay for all of September 2016 because she was directed to
obtain hearing aids before returning to work. Tr. 80-81. Effectively then, Mulford did not
perform work as an occupational nurse for Robinson after August 31st. Tr. 81.
It should be noted that there is no dispute that Ms. Mulford has some hearing loss, and
that the loss is of a degree requiring the use of hearing aids. Tr. 87. However, more importantly,
Mulford’s use of hearing aids and her hearing deficit, requiring their use, forms no part of her
discrimination claims and therefore it is not part of this case.
During the period of her work as an occupational nurse, that is, from June through the
end of August, Mulford maintained that she got along and interacted well with employees and
supervisors at the Robinson mine, except for one person, Mr. Mark Langston, the safety
manager. Tr. 90-91. As noted, Langston participated in both of Mulford’s interviews with
Robinson. Tr. 91. Mulford contended that her difficulties with Langston began with her first day
on the job, claiming that Langston did not want to establish an office for her right away. Tr. 92.
Regarding her claim that Langston had alcohol abuse issues, Mulford stated that in late
July she began to smell alcohol when around him. Tr. 92-93. Mulford also asserted that she
observed other indications that Langston was using alcohol at work, alleging that there were
3

“HIPAA,” is the acronym for the Health Insurance Portability and Accountability Act of
1996 and it pertains to patient privacy rights.

39 FMSHRC Page 1962

times late “in the afternoon in his office, [when] he kind of swayed across the office. And also
sometimes down the hallway.” Tr. 94. She could not be sure if the swaying was due to a physical
issue. Rather, her conclusion ultimately rested upon the odor of alcohol about him. Id. She stated
that she made these observations on more than one occasion, estimating that it was “[p]robably
two or three times.” Tr. 95. It was also her view that Langston displayed “extreme
forgetfulness,” an opinion resting upon his use of a notebook to jot down things that “most
people can remember if it's important. I mean, we might forget small details, but if -- it was like
he was lost without his notes all the time.” Id. Upon questioning by the Court, Mulford conceded
that the notebook use could be attributable to reasons other than alcohol use. Tr. 95-96. She also
admitted that she never observed any slurring of speech on Langston’s part. Tr. 96.
When asked if she ever expressed her concerns about Langston and alcohol use to others,
Mulford stated that she raised the issue to Kammerer in the latter part of August, talking with
him privately in his office. Tr. 97. This was done after she had observed those indicia of alcohol
use on two or three occasions. Id. Kammerer inquired whether the odor could simply be from
alcohol use the night before, but Mulford rejected that suggestion, as she claimed that it smelled
fresh. Tr. 99. She maintained that nothing ensued from her raising the issue with Kammerer,
stating that “it was pretty much just dropped” and she did not raise the issue again. Id.
Further, she never filed any official remark to Kammerer or anyone else at Robinson about her
contention. The assertion was made on paper only at the time Mulford filed her discrimination
complaint. Tr. 98.
The Court then inquired about the second cognizable discrimination claim raised by the
Complaint, involving Patrice Dunn, Ms. Dunn's daughter, Kaci Nardi, and a workers’
compensation claim brought by Ms. Nardi. This was Mulford’s assertion of a drug abuse cover
up associated with a positive drug test result for Nardi. Tr. 100. Mulford believed that her
becoming involved with this issue was within her responsibilities as an occupational health
nurse, expressing that it was part of her job description, which included workers’ compensation
matters. Tr. 101. She stated that her responsibilities included all the documentation and that she
“was to go to follow-up appointments to doctors and hospitals with the injured people.” Tr. 101.
Mulford gave as an example of her duties that, if someone got hurt at work, she would go to the
mine and then to the hospital with the person. Tr. 102.
Telling her story about this issue, Mulford stated that Ms. Dunn used to be on the safety
team, then stopped performing that role for several weeks. Beyond that, Mulford asserted that
Dunn’s primary job is as a secretary at the mine. Tr. 103. Later, around August 16th, Dunn
returned to the safety team and became the on-call person again. Tr. 104. Around August 16th
Dunn was called, as there has been an injury at the mine involving her daughter. Apparently, Ms.
Nardi twisted her knee. Tr. 105. Nardi filed for workers’ compensation and Dunn then gave then
the paperwork relating to the incident to Mulford. Tr. 106.
It is a critical element of Mulford’s claim on this issue that within that paperwork was a
finding that Nardi tested positive for drugs. Tr. 108. Mulford alleged that the paperwork revealed

39 FMSHRC Page 1963

that Nardi tested positive for “Benzos.”4 Tr. 109. Such drugs, Mulford stated, are used for
anxiety or to help one sleep. Id.
When the Court expressed concern about Mulford’s positive benzos claim regarding
Nardi, expressing that the use of medication, such as tranquilizers, is not inherently a problem,
Mulford acknowledged that is true, but responded, “if she didn't have a prescription for it, which
I didn't have -- I don't know. That's not a safe -- that's an unsafe factor.” Tr. 110 (italics added).
Upon further questioning by the Court, Mulford agreed that if one needed a drug for anxiety that
is very different from a positive drug result showing the presence of cocaine, marijuana or PCP.
Tr. 111. Again, Mulford expressed that her concern was only if the employee did not have a
prescription and she had no information on that score. She added, “But I didn't raise any
concerns. I did not express anything. I sent the paperwork to workers' comp.” Id.
Mulford tried to bolster her position on this issue by asserting “there was a prior
problem[, as the employee] had had a positive incident in March or April.” Tr. 112. The Court
noted, and Mulford acknowledged, that this prior incident was before she was employed by
Robinson. Id. The Court, dismayed at the grounds Mulford presented for this claim, summed up
that it “hear[d] nothing from [Mulford] that justifie[d] [her] being concerned about either
positive result at least through August of 2016.” Ms. Mulford agreed with the Court’s
characterization. Tr. 113.
However, Mulford persisted that her concern was still present because the employee tried
to elude Mulford’s efforts to join her follow-up medical appointments. When Mulford eventually
learned of an appointment, she was a half-hour late and the hospital nurse, who was not an
employee of Robinson, at the employee’s request, did not allow Mulford to join the patient when
she was being evaluated by the hospital. Tr. 114; 121. Nor did Mulford ever learn about lab test
results from that visit, nor did she request those results, apparently because Mulford’s
termination was underway. Tr. 114-15. In fact, the Court expressed that it was
having a hard time understanding that there was any legitimate concern on [her]
part, because [its] impression was that there was [an effort to try] to hide some
drug abuse, but that doesn't seem to be the case at all. You have nothing to
support the idea that there was drug abuse on the part of Ms. Nardi.
Tr. 118.
Mulford conceded her only support was “just because there was a prior positive.” Id.
The Court advised that it failed to see the merits of Mulford’s claim on this subject. Tr.
115. After cross-examination on the subject of the positive benzos test for Ms. Nardi, and Ms.
Mulford’s inability to explain the significance of that test result, the Court advised Counsel for
the Respondent that it “will tell you, counsel, if it helps you that [it is the Court’s] view that Ms.
4

Here, Mulford used an abbreviation of the word “benzodiazepines,” which refers to a
category of drugs commonly used as tranquilizers. “Benzodiazepine,” Merriam-Webster
Dictionary (2017).

39 FMSHRC Page 1964

Mulford did not advance her case on the subject of the workman's comp and the drug-related
issues. [The Court] listened closely to what she had to say, [and] asked her some questions if you
recall, and it's [the Court’s] view that [on] that issue, at least, she did not advance her claim of
discrimination on that topic.” Tr. 306-08.
Following up on that comment, the Court, speaking to Ms. Mulford, added, “Benzos, that
you [Ms. Mulford] told me that you could legitimately legally have benzo in your system and it's
of no moment because you might have -- it might have been prescribed for you.” Tr. 309.
Mulford responded, “Yes.” Tr. 309. This remains the Court’s conclusion; Mulford’s drug test
claim is without any validity.
Turning to the issue of Mulford’s hearing deficit which, it should be kept in mind, was
not part of her discrimination complaint, and is recounted here only for the sake of completeness,
Mulford agreed that the first time Langston voiced a problem about that was during August. Tr.
116. However, she maintained that the complaints about her hearing ability intensified at the
same time she was pursuing her workers’ compensation/ positive drug test issue with Nardi. Tr.
122.
At that point in her testimony, Mulford agreed that she had presented the “safety-related
issues that [she had] vis-à-vis Robinson that [she] also raised to the MSHA investigator when
[she] made [her] complaint.” Tr. 123. The Court inquired, “[h]ave we covered the issues?” Id.
Mulford responded, “It was just alcohol [and she acknowledged] Yes, we have covered them.”
Id.
Mulford then agreed that she was on paid leave for five weeks, following Robinson’s
direction that she was to obtain hearing aids. After that, her employment ended, as Robinson
decided to terminate their employment relationship. Tr. 123-25. She was then advised to vacate
her company-provided housing and Kammerer informed her by letter that he was authorized to
offer her $3,000.00, upon her leaving the mine provided housing within four days. Tr. 125.
Upon cross-examination,5 Mulford contended that, after she complained, expressing her
view that Langston had alcohol on his breath while at work, and informed Kammerer about it,
“that’s when everything blew up. Along with the Nardi situation, with mentioning that she had a
positive test.” Tr. 154. Mulford alleged that the ensuing “harassment and angry behavior”
constituted discrimination against her. Tr. 155. She asserted that it was present during August
and that it also spiked during August, after her assertion about detecting alcohol on Langston’s
breath, behavior which prompted her to raise the issues with human resources. Tr. 155-56. The
harassment took the form, she stated, in the way Langston spoke to her, essentially ignoring her,
behavior which she described as “very traumatizing to a person, especially a professional
5

Just as, in the exercise of the Court’s discretion, this decision’s recounting of the direct
testimony from Ms. Mulford avoids discussion of testimony deemed by the Court as irrelevant or
immaterial, and at times involving outlandish claims, the recounting of her testimony upon the
cross-examination takes the same approach. Transcript pages 253 through 259 provide one
example of the outlandish assertions that Mulford made which the Court has elected to avoid
including in this decision.

39 FMSHRC Page 1965

person.” Tr. 155. Mulford conceded that she never documented the days when she smelled
alcohol on Langston breath, and could not give exact dates, but that it “was always at safety
meetings.” Tr. 157. She characterized it as after three events of such alleged detection by her,
“that’s when I – three strikes, and I had to attack. I had to at least say something, make a point.”
Tr. 158.
Mulford also agreed that the harassment escalated following the “Patrice Dunn incident
in mid-August.” Tr. 159. The latter event, of course, refers to Mulford’s Dunn/Nardi positive
drug test claim, discussed above. Ultimately, it was Mulford’s view that both events, the alcohol
and the Patrice Dunn matters, coincided with the harassment escalation. Tr. 160.
Mulford was then questioned about an August 27, 2016 voicemail, in which voicemail it
was represented that she made a complaint regarding Ms. Nardi to Mr. Langston. Tr. 166.
Mulford agreed that she did leave a voicemail for Kammerer on the morning of August 27th and
that it was about the local sheriff and her assertion that she was being harassed. Tr. 169. Mulford
acknowledged that she complained about Langston to Kammerer at that time but that it involved
a bill that had not been paid by the Respondent. Tr. 170. She then stated that she could not
determine if that issue was harassment or whether it was attributable to Langston having
“memory loss” about paying the bill. Id.
The cross-examination then turned to Mulford’s claim that one aspect of her alleged
discrimination was the change in her job title to industrial hygienist. Tr. 171. As the Court has
noted, under the circumstances here, this is not a cognizable basis for a discrimination
complaint.
It was Mulford’s contention that there was also harassment which escalated after the
Nardi incident and her complaint that she had to use great efforts to get Langston’s attention on
subjects of her concern, a problem she described as constant. Tr. 171-72. She believed Langston
was intentionally ignoring her. Tr. 173. When she finally would get his attention, he would have
a gruff demeanor towards her. Tr. 174. Directed to Respondent’s Exhibit R 9, at page 13,
Mulford agreed that she wrote the document at that page, identifying it as her complaint to
MSHA. Tr. 176. That document identifies her various complaints but she conceded they were
never triggered by any report she gave to anybody at Robinson. Tr. 177.
Continuing with Respondent’s review of Mulford’s written complaint to MSHA, per R’s
Exhibit 9, Mulford agreed that on August 25, 2016, she was complaining about Langston asking
about her hearing aids, which she did not have yet, and her contention that Langston became
upset about that. Tr. 178. She also had an issue with a matter on September 6th, involving
Langston being “disrespectful” to her in that she did not yet have hearing aids. Tr. 179.
Turning to an issue within Exhibit 9, dated September 19th, Mulford described this as
“[m]ore discrimination.” Tr. 179. However, the Court intervened to clarify the nature of
Mulford’s complaint regarding the September 19th claim, noting that it reflects that “[Mulford]
then told Kammerer that Langston is unsafe and comes to work smelling like booze and is
forgetful.” Tr. 179. Of concern to the Court, and revealing that Mulford’s claim was clouded
with unsubstantiated suspicions about motivations behind her claims, she acknowledged that it

39 FMSHRC Page 1966

was “a possible issue” that “the discrimination and disrespectful behavior from Langston could
be from outside sources from Reno, Nevada.” Tr. 180 (emphasis added). She also acknowledged
her view that it was possible that “the entire time that Mark Langston was harassing [her]
because other people were causing him to do it[.]” Tr. 180 (emphasis added).
Mulford admitted that she didn’t know whether Langston was being paid to discriminate
against her, but she considered it to be a possibility, stating she “assumed that it possibly could
be gratuitous sabotage.” Tr. 181. Mulford further agreed that she alleged,
[o]utside sources of influence provided Mark Langston's harassment and
discrimination to me, illegally. The outside sources are biased and paid Langston
to deliberately destroy my job from the start.
Tr. 182; Ex. R 9.
To make it clear, it was Mulford’s view that Langston was paid to destroy her job from
the start. Tr. 182. Mulford’s claims regarding Langston are without any merit and may fairly be
described as outlandish suspicions. Mulford acknowledged that not a single other person at
Robinson was treating her poorly. Tr. 182. Respondent’s attorney aptly noted that when Mulford
made her complaint she did not describe it merely possible or highly possible, but rather she
wrote in her complaint that was what happened. Tr.183. Mulford also wrote that she believed
MSHA’s determination not to refer her case to the Secretary for representation was “coerced”
and that she believed someone was influencing the MSHA investigation. Tr. 184.
Mulford also believed that when she was put on leave, initially for three weeks and as
later extended to five weeks, this was discrimination because it was “a major hours and
scheduling change.” Tr. 185. The reader should recall that this was no part of Mulford’s
discrimination claim before MSHA and therefore was not part of its investigation of her claim.
On a separate note, Mulford conceded that Respondent’s Ex. R 26 is a letter stating that
Mulford was to receive three weeks paid leave so that she could obtain hearing aids. Tr. 186. The
same letter also stated that the Respondent would be investigating her discrimination complaints.
Tr. 187.
Mulford was directed to Exhibit R 14 which, she acknowledged, was an email she sent to
Respondent’s Counsel on June 30, 2017 and which reflects her responses to Respondent’s
interrogatories. Tr. 249-50. Mulford conceded that, per her responses, she believed that Langston
was paid to discriminate against her. Tr. 250. Counsel pointed out that at the hearing Mulford
stepped back from her interrogatory response, by then describing it as “very possible [that
Langston was paid] because it’s unusual behavior.” Tr. 250. Mulford also contended that
Langston did not treat her as a professional from the first day of her employment at Robinson.
Tr. 251. She based this view upon contrasting the welcoming attitude of everyone else at
Robinson, except for Langston. Tr. 252. It was her view that Langston didn’t want to get her an
office and matters further deteriorated when her job title changed. Tr. 252.

39 FMSHRC Page 1967

Mulford’s testimony became more bizarre when she asserted that there were connections
between the Church of Scientology cult, asserting that “[t]he discriminating situation is from
outside sources of influence from the Scientology cult. I have been attacked and discriminated
against them for years.” Tr. 260. In response to the Court’s question, Mulford agreed that her
opinions were based just on her suspicions. Tr. 261.
Perhaps most revealing to Ms. Mulford’s discrimination complaint was the following
exchange, when Respondent’s Counsel asked, “what made you have suspicions about
connections between Scientology and the Robinson mine in late July or August?” Tr. 261.
Mulford responded, “It isn't Robinson mine. It's Mark Langston. Robinson mine has nothing to
do with my discrimination or anything else. There is one individual.” Tr. 261 (emphasis added).
Appropriately, Respondent’s Counsel then asked, “This is a case against Robinson mine, you
understand that; right?” Id. Mulford replied, “I do.” Id. When pressed further, that the case was
not against Langston, Mulford answered, “Well, it should have been Mark Langston, but I
understand the situation. It has to be with the corporation.” Tr. 261-62. Of significance, Mulford
agreed that her suspicions about Langford and the Church of Scientology all arose prior to her
claims that Langston was using alcohol while on the job and the “Ms. Nardi situation regarding
drug tests.” Tr. 263.
As Mulford expressed it, per R’s Ex. 9, “[t]he outside sources are biased and paid
Langston to deliberately destroy my job from the start.” Tr. 270. Perplexed by her assertions, the
Court inquired of Mulford, “[w]hen you say, ‘the outside sources are biased and paid Langston
to deliberately destroy [your] job,’” Mulford interjected, “[c]orrect.” Tr. 271. When informed
by Mulford that the outside sources were from Reno, which the Court noted, is a significant
distance from Ely, Nevada, the Court informed her that it was “at a loss to appreciate the basis
for [her] concluding that these people in Reno would even find, let alone pay Mr.
Langston to harass you. I mean, let's say I am living in Reno. Why wouldn’t I pick . . . Mr.
Kammerer to do the harassing? What is your thinking as to why they would single out Mr.
Langston?” Mulford responded, “I have no idea.”6 Tr. 271-72.
The Court tried to summarize the grounds for Mulford’s view, asking, “[s]o you just
figured, if I understand your thinking . . . Your thinking was well, I am being mistreated, I did
have this trouble in Reno, there must be a connection between the two; is that fair?” Tr. 273.
Mulford answered, “[i]t -- it's fair, yes.” Tr. 273.
6

The Court concludes that Mulford’s theory behind her claim of harassment was beyond
speculative and is completely groundless. As another example, Mulford informed that her claim
was connected with a temporary protective order (“TPO”) issued against her, out of Reno. A
local sheriff, near the Robinson mine, served the TPO on Mulford at the apartment that Robinson
Mine had provided her. Mulford admitted the TPO service was not done by Robinson Mine, nor
by Mark Langston. Tr. 267. The only thing Mulford could point to in support of her suspicion
that Langston and the sheriff’s office were collaborating was that she was served the TPO on the
same or next day after she was urged by Langston not to go into work on a Sunday. Tr. 268.
Mulford believed that Langston wanted her to be at home so that she would be served with the
TPO. Tr. 269.

39 FMSHRC Page 1968

Mulford filed her MSHA discrimination complaint on September 19th, but it was date
stamped September 23rd. Tr. 277. Her interview with Ms. Jepson was after that, on September
26th. Id. It was her testimony that, at the conclusion of the Jepson interview, she told them she
had filed a complaint with MSHA. Tr. 278. It is fair to say that Mulford had a number of people
whom she believed could be outside influences on the Robinson Mine. Tr. 278-87. Suffice it to
say that she never established credible evidence to support her beliefs and that they remained
pure speculation on her part.
Counsel for the Respondent also called to Mulford’s attention an email she sent to Julie
Whiffen-Peters on October 15, 2016.7 Tr. 253; R’s Ex. R-4. Respondent’s Counsel noted that in
that email the Complainant asserted, “‘[t]he cult deliberately infiltrates businesses and
corporations all over the world to destroy individuals who seek their arrests and prosecution for
their crimes. I know — ’ not guess, not suspect, ‘I know who my real attackers are and the
mining employees involved were just their tools of discrimination/harassment for money.’” Tr.
289. Mulford responded, “That's correct.” Tr. 289.
Mulford then concluded her case and in response to the Court’s inquiry if she believed
that the Court listened to her and gave her a fair opportunity to present her side of the story, she
responded, “I agree.” Tr. 315.
Shane Anderson testified for the Respondent. Anderson is the Senior Safety Coordinator
at the Robinson Mine. Tr. 191. He has known Mark Langston for a considerable period of time.
Tr. 192-94. Anderson is also familiar with the Complainant, as he participated in the interviews
for the position Mulford ultimately was offered. Tr. 194. Anderson maintained that the interview
described the job as applying to both the “IH” (industrial hygienist) job and as an occupational
nurse. Tr. 177; 195. However, he admitted being unable to recall if the job description included
both roles. Tr. 195.8 Per Respondent’s Ex. 18-2, industrial hygienist duties were included in the
description as it provided: “Perform health risk assessments. [ ] Industrial hygiene sampling and
ergonomic surveys throughout the mine site.” Tr. 196. More significantly, Anderson asserted that
one does not need certification to perform industrial hygienist duties. Tr. 198. However,
certification is available for that job. Tr. 199.
Anderson was asked about the Respondent’s practice regarding hearing tests, advising
that all new employees are so tested. This gives the mine a baseline and he asserted that MSHA
requires such testing within six months of employment. Tr. 199. Shown Ex 5 C, Mulford’s
hearing test results, Anderson stated that the test revealed moderate to severe hearing loss on
both sides. Tr. 203-04. This test served as a baseline for Mulford’s hearing at the time she began
her employment for Robinson. Tr. 208. However, he conceded that there was no determination
7

Asked why Mulford sent an email to Whiffen-Peters in the first place, as she had no
prior contact with her, she simply advised that she looked up the name at the website for the
mine, selecting her as one of the corporate people. Tr. 291.
8

Again, it is reminded that this testimony is recounted only for the sake of completeness.
The modification of Mulford’s job duties was never claimed as part of her protected activity, nor
in context could it be so claimed.

39 FMSHRC Page 1969

that Mulford needed hearing aids following those test results. Tr. 209. Anderson claimed that in
subsequent work interactions with Mulford, he noticed that she seemed to have some difficulty
hearing during conversations, but he admitted this was surmise and that it could’ve reflected not
understanding tasks for which he was providing training. Tr. 212.
Again, the Court takes note that Robinson’s practice of conducting hearing tests for new
employees was not part of Mulford’s claimed protected activity.
Anderson stated that he attended numerous safety meetings with Langston and Mulford
being present. Tr. 212. He asserted that, at times, he sat next to Langston but never smelled or
perceived alcohol use by Langston. Tr. 213. He maintained that he never had any reason to
believe that Langston was using alcohol during work hours or immediately prior to work. Tr.
213. All employees at the Robinson Mine are subject to its drug and alcohol policy and there is
random testing. Tr. 213. Langston, Anderson stated, has been tested, per the policy and his test
result was negative. Tr. 214. Nor, Anderson maintained, do any employees, other than HR
employees, know when the random testing will be done. Tr. 216. Upon questioning by the Court,
Anderson stated that he would have from four to eight hours of contact with Langston during the
course of a week. Tr. 217-18.
Anderson also maintained that he never observed Langston raise his voice to Mulford,
nor treat her any differently from other employees. Tr. 227. He asserted that Langston treated all
employees in a respectful manner. Tr. 227.
Speaking to the Complainant’s issue regarding a lack of access to the employee at the
hospital, he stated that there was a meeting at a hospital in Ely, Nevada, which the Complainant
also attended, along with Anderson and Langston. Tr. 229. The meeting occurred in the third or
fourth month of Mulford’s employment with Robinson. The issue was to determine an efficient
manner to decide if an injured employee should be placed on lost time or restricted duty. Tr. 229.
According to Anderson, later in that meeting Mulford brought up a topic which had already been
addressed, which surprised the other participants. Tr. 232. Anderson concluded that the reason
could’ve been attributable to Mulford not hearing the earlier discussion about the issue. Tr. 233.
However, Anderson never discussed the need for Mulford to obtain hearing aids with any
Robinson employees, nor to Mulford herself. Tr. 233-38.
On cross-examination by Mulford, Anderson agreed that, per Exhibit 2 C, her job at
Robinson was described as on that May 12, 2016 document as “full time occupational nurse.” Tr.
240. Per Exhibit 17 C, the position was described as “Industrial hygienist nurse.” Id. Exhibit 3 C
lists the job as “Industrial Hygienist/Occupational Nurse.” Id.
The Court considered Anderson and his testimony to have been a credible.
The Respondent called Mark Langston. Tr. 332. Langston has been a safety manager for
about 13 years. Id. Prior to that occupation, he had 22 years of service with the U.S. Navy. Id.
Langston was involved in the creation of the job description for the position Mulford was hired.
Initially the position was posted as an industrial hygienist, and then amended to include an
occupational nurse, a modification that he and others considered to be an enhancement for

39 FMSHRC Page 1970

Robinson employees. Tr. 334. He stated that neither Nevada nor the federal government require
one to have a degree or certification to be an industrial hygienist. Tr. 335. It was Langston’s
understanding that Mulford was hired to perform work as an industrial hygienist and as an
occupational nurse. Id. During the relevant time, Langston had three people that reported to him:
Shane Anderson, Tyler Wright and Heather Mulford.
As the mine did not complete the necessary steps for Mulford to fully perform her
occupational nurse duties, steps which require her to work under medical direction, in order for
her to treat employees and provide vaccinations, the initial focus was to have her learn the
industrial hygiene duties. Tr. 336- 41. To that end, Langston had Anderson mentor and coach her
in the performance of those hygienist duties. Tr. 341. He denied that, in his interactions with
Mulford, that he treated her differently from others. Id. He was aware that Mulford might have
hearing issues during her interview and, following her pre-employment physical, this was
identified as a concern and he and Kammerer discussed the issue. Tr. 342. Langston also
explained that there was no nefarious reason for the Complainant having her hearing capabilities
tested twice in a short period of time, stating,
[b]ecause sometimes when you do the hearing tests at the clinic with the medical
facility they don't always follow the best practices on administering the test. So
there is a potential for there to be an error in the test. So we like to run our own to
confirm that we have a good baseline.
Tr. 343.
He affirmed this was a standard procedure for the mine. Id.
Langston also stated that it became apparent that Mulford was not hearing all of the
discussion during meetings. Tr. 343-44. Thus, there were communication problems and he
discussed the matter with Kammerer and others. Tr. 344. Several months after the second
hearing test,9 Mulford was referred to see an audiologist and it was learned that hearing aids
would be in the offing. Tr. 344-46. Langston agreed that, while Mulford’s hearing was an issue,
it was not deemed an urgent problem and for that reason the appointment with an audiologist was
scheduled some months later. Tr. 347. However, he added that the problem became progressive
and he concluded that his expectations of her were not being met, a problem he attributed to her
hearing issue. Id. Still, he could not recall if he ever sent an email to others at Robinson about
this issue. Tr. 348. Langston agreed that Mulford was hired on June 6, 2016. Tr. 349; R’s Ex. 1
C.
Langston acknowledged that, through Kammerer, he became aware that Mulford had
made complaints about him. The complaints involved two issues: that she believed he had
9

The Court determined that Anderson’s explanation for Robinson conducting two
hearing tests for Mulford within a short period of time, was plausible, and therefore not
nefarious. Tr. 243. Again, it needs to be noted that this was not part of Mulford’s discrimination
claim; she did not assert that her hearing deficit was part of her discrimination claim.

39 FMSHRC Page 1971

discriminated against her because he felt she needed hearing aids and she also accused him of
coming to work under the influence of alcohol. Tr. 350. Langston was offended by Mulford’s
claims. Id.
Langston stated that supervisors and management were also subject to random drug
testing. Tr. 351. He has been randomly tested and his results were negative. Tr. 352-53. Further
undercutting Mulford’s suspicions, Langston informed that he has never had a DUI, never had a
field sobriety test, and never been disciplined for alcohol or drug abuse at any time during his
mining career. When asked if he drinks before going to work, he responded, “No. In my
profession as a safety manager that kind of conduct is career ending. It is. I mean, I would never
get another job as a safety manager.” Tr. 353.
The Court considered Langston and his testimony to have been credible in all regards.
Mr. Kim Kammerer testified for the Respondent.10 He was the company representative at
the hearing. He is presently the Human Resources Manager at Robinson. Tr. 392. Kammerer
confirmed that, consistent with the testimony of prior witnesses during the hearing, that he
believed hiring an occupational nurse would be a good addition for the mine. Tr. 393. It was his
intention that the person filling that position would also perform industrial hygienist duties. Tr.
393, 395 and Exhibit 18-1 and 18-2 (the job posting and job announcement). Kammerer
confirmed that one did not need a certificate or a degree to work as an industrial hygienist. Tr.
395-396.
Kammerer conducted the job interviews for Mulford and he noticed early on that Mulford
had hearing problems. Tr. 397. Despite awareness of the Complainant’s hearing issue, Kammerer
believed they would be able to accommodate the difficulty and therefore did not consider it as a
barrier to hiring her. Tr. 398. He also confirmed that the decision to conduct a second hearing
test came about because they wanted to be sure they had a good baseline for her. Tr. 399. The
practice of a second baseline test is done for all new employees. Tr. 400. After she had been on
the job for a few weeks or so, he asked her to be seen “by a medical professional to see if there is
something that could be done to help her with her hearing, possibl[y] hearing aids.” Tr. 401.
Kammerer stated that Mulford was receptive to his suggestion. Tr. 402. Subsequently Langston
told Kammerer that Mulford’s hearing continued to be an issue and he asked Kammerer to
follow-up with her. He advised Mulford that the mine would give her time off from work to
10

Prior to Kammerer’s testimony, Amanda Hilton was called as witness for the
Respondent. Ms. Hilton has been an employee at Robinson for nearly 13 years. Tr. 380. Her
jobs during that time included accounting and the manager of administration. Presently she is the
manager of mine maintenance and supply chain. Id. Hilton agreed that her contact with Mulford
during the time Mulford worked at Robinson was infrequent, brief and not substantive. Tr. 382.
Her involvement with Mulford pertained to her participation with the committee regarding
Mulford’s continued employment. Tr. 382. Hilton’s testimony was of no value to the matter
before the Court, as she agreed that 99 percent of her participation rested upon the
recommendations of the Jepson Report. Hilton conceded that the committee adopted the Jepson
Report with no reservations about any of it. Tr. 386. Her testimony is noted here only for the
sake of completeness.

39 FMSHRC Page 1972

obtain hearing aids. Tr. 403. Following that, in late August, Mulford advised Kammerer that,
upon seeing an audiologist, it was recommended that she obtain hearing aids. Tr. 403-04. Unsure
whether money was an issue for her, Robinson, acting through Kammerer, provided unrequired
additional funding so that Mulford could afford to purchase hearing aids. Tr. 405.
Kammerer related that, around the 29th of August, Mulford met with him and at that time
alleged that she was being harassed and discriminated against by Langston. Tr. 408. As he
recalled, Mulford had not raised any charges about Langston using alcohol on the job until that
meeting. Tr. 409. Regarding Mulford’s claim of Langston being under the influence of alcohol at
work, Kammerer placed this allegation as having been made around August 29th. Tr. 420. This
was made at the same time she alleged discrimination and harassment by Langston towards her.
Tr. 420. This was based, Kammerer stated, on Mulford’s assertions about the manner in which
Langston spoke to her. Tr. 421.
Based in part on the credible testimony of Kammerer regarding Mulford’s claim that
Patrice Dunn was covering up a “positive” drug test, the Court finds that there is no evidence to
support that claim. See, Tr. 421-26. It should be particularly noted that, in the first instance,
before any witness for the Respondent testified, Mulford herself did not establish any credible
evidence for her cover-up claim. Thus, Respondent would have prevailed on this issue, even if it
had not offered any rebuttal evidence at all.
On the separate allegation of Langston using alcohol on the job, Kammerer confirmed
that, apart from Mulford, there have been no other such claims against Langston. Tr. 429.
Kammerer added that when Mulford raised the issue with him, she informed that the alleged
alcohol use occurred “on previous days, other times. Not that day.” Tr. 429-30. He informed
Mulford that “unless [she] can tell [him] the day it happens there is not a whole lot [the mine]
can do to go for testing.” Tr. 431. Further, though her complaint about Langston was untimely,
Kammerer still inquired of Wright and Anderson as to whether they ever had ever observed
Langston “staggering around like he had been drinking or smelled alcohol on him or any of
that?” Tr. 430. Both informed Kammerer that they had never seen Langston exhibiting such
symptoms. Id.
Kammerer was asked about Mulford’s allegation of harassment. From his point of view,
this amounted to her complaint about “the way [Langston] talked to her” and that claim only
referred to one instance raised by Mulford. Tr. 436. There was some substance to this claim of
Mulford, that Langston could be blunt, but Kammerer stated it was born out of Langston’s
frustration about the length of time it was taking for her to obtain hearing aids. Id. Further, as it
regarded his specific interactions with Mulford, Kammerer stated that she never made any claim
to him that Langston was harassing her the entire time of her employment at Robinson, nor that it
had escalated. Tr. 437. Kammerer also related an instance when Mulford left him a voicemail,
advising that the local sheriff’s department was coming to her house and her belief that Langston
had instigated that. Tr. 437-41. Even when later developments demonstrated that Langston had
nothing to do with the sheriff’s department visiting Mulford, she was unable to concede that her
suspicions were not confirmed. Tr. 449.

39 FMSHRC Page 1973

In terms of appreciating the context of Robinson’s treatment of Mulford, it is noted that
the Respondent went to some lengths to help Mulford with her hearing deficit issues. It did this,
through Kammerer, by Robinson providing her with paid time off so that she could obtain the
hearing aids and, as mentioned before, by providing some funds to help pay for the hearing aids.
Tr.452-56. Mulford misinterpreted the additional funds for hearing aids as an indication that she
was being fired. Tr. 458. However, Kammerer stated that, as of September 8th, there had not
been a decision to terminate Mulford. Tr. 457. Thinking that she was to be fired, Mulford then
accused the mine of discrimination. Tr. 459; Ex. 20.
The Court concludes that Kammerer was a credible witness.
Christina Jepson testified for the Respondent.11 Jepson is an attorney in the same firm as
Respondent’s Counsel, Mr. DeLong. Tr. 491. Her specialty is employment law. Tr. 492. Jepson’s
initial involvement in this matter arose when Kammerer contacted her regarding Mulford’s
discrimination complaint. Tr. 492-93. It was not long after September 8th that Jepson began an
investigation on Robinson’s behalf into the suitability of Mulford’s employment at the mine. Tr.
461-62. Jepson came to the mine around September 21st and conducted interviews with various
employees, including Mulford. Mulford accused Robinson Mine, during her interview with
Jepson, of the mine discriminating against her. Tr. 463. Following Jepson’s interviews, she
prepared a report and presented it to a committee for the mine. Tr. 465. The Committee then
determined that Mulford’s employment at Robinson should be terminated. Tr. 466; R’s Ex. 2.
The termination letter, dated October 13th, advised that the mine had “determined that [Mulford
was] not able to carry out the necessary required functions of [her] job.” Tr. 472. This conclusion
rested upon the information contained in the Jepson report. Tr. 474.
The Court had previously ruled that most of Jepson’s report, resulting from her
investigation of Mulford’s issues, was not admissible. Her testimony was not useful to the Court
because nearly all of it involved a recounting of the scope of her investigation of Mulford’s
complaints and a retelling of what individuals told her about those matters during the one day
Jepson spent at the mine. The “report” which resulted from Jepson’s investigation was seriously
flawed by its lack of impartiality and objectivity and by its consideration of extraneous matters.
In short, the obvious purpose of the “report” was to support Mulford’s termination.
In contrast to Jepson’s retelling of what she learned, the Court had the direct testimony of
the individuals themselves. Essentially, Jepson’s “report” was the Respondent’s attempt to have
its own findings of fact about Mulford’s complaint. That role, at least for Mulford’s Mine Act
discrimination complaint is reserved to the Court. Accordingly, and for a host of other reasons

11

In the spirit of completeness, it is briefly noted that Sara Wright testified for the
Respondent. She is an employee with Robinson, working in human resources with the title of
“coordinator,” working under Kammerer. Tr. 482-83. Wright stated that she had contact with
Langston “[d]aily, multiple times a day.” Tr. 483. She stated that, while she never saw Langston
get upset with anyone and never witnessed him raising his voice at people, he was naturally a
loud person. Tr. 484. Nor did she ever observe him treat Mulford differently. Id. She never
observed any indication that he had been abusing alcohol while working. Tr. 486.

39 FMSHRC Page 1974

articulated by the Court during the course of this litigation, Respondent’s Exhibit R 1 was not
allowed into the record. Tr. 508.
While the Court rejected the “report,” it has determined, based on the exhibits entered
into the record, and the testimony of witnesses, that Mulford’s claim has no merit and that
Robinson was fully justified in terminating her employment.
Mine Act Discrimination Claims
This discrimination complaint was brought under section 105(c)(3) of the Mine Act,
alleging a violation of section 105(c)(1), which states, in relevant 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] representative of miners . . . because such
miner [or] representative of miners . . . has filed or made a complaint under or
related to this chapter, including a complaint notifying the operator or the
operator's agent at the coal or other mine of an alleged danger or safety or health
violation in a coal or other mine.
30 U.S.C. § 815(c).
Where, as in this case, the Secretary has decided not to bring case on behalf of the
miner, Section 105(c)(3) of the Mine Act provides that if the Secretary of Labor determines that
a violation of section 105(c)(1) has not occurred, “the complainant shall have the right . . . to
file an action in his own behalf before the Commission, charging discrimination.” 30 U.S.C. §
815(c)(3).
As the Commission stated in Jaxun v. Asarco, “[t]he Mine Act, the Administrative
Procedure Act (‘APA’), and the Commission’s Procedural Rules permit a Complainant to
proceed with an action under section 105(c)(3) of the Mine Act without representation.” Jaxun
v. Asarco, LLC, 20 FMSHRC 616, 620 (Aug. 2007).
The legal framework for assessing discrimination claims brought under the Act is wellestablished and clear. A complainant may establish a prima facie case by showing “(1) that he
engaged in protected activity, and (2) that he thereafter suffered adverse employment action that
was motivated in any part by that protected activity.” Pendley v. FMSHRC, 601 F.3d 416, 423
(6th Cir. 2010). The complainant bears the ultimate burden of proving these elements by a
preponderance of the evidence. Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2
FMSHRC 2786 (Oct. 1980), rev’d on other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle
Coal Co., 3 FMSHRC 803 (Apr. 1981).
Protected activity often takes the form of complaints made to the operator or its agent of
an “alleged danger or safety or health violation. 30 USC § 815(c)(1). Often, the Court will be
called upon to consider indirect evidence of a discriminatory motivation for the adverse action.

39 FMSHRC Page 1975

The Commission has stated that “[d]irect evidence of motivation is rarely encountered; more
typically, the only available evidence is indirect.” Sec’y of Labor 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). Where direct evidence of motivation is unavailable, the Commission has identified
several indicia of discriminatory intent, including, but not limited to: “(1) knowledge of the
protected activity; (2) hostility towards the protected activity; (3) coincidence in time between
the protected activity and the adverse action; and (4) disparate treatment of the complainant.”
Turner v. Nat’l Cement Co. of Cal., 33 FMSHRC 1059, 1066 (May 2011) (citing Chacon, 3
FMSHRC at 2510). When considering indirect evidence, the Court may draw reasonable
inferences from the facts. Id.
An adverse action is any “act of commission or omission by the operator subjecting the
affected miner to discipline or a detriment in his employment relationship.” Sec’y of Labor on
behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847-48 (Aug. 1984). An
adverse action must be material, meaning that the harm is significant rather than trivial. In
determining whether adverse action has occurred, the Commission applies the test articulated in
Burlington North v. White. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); see
also Sec’y of Labor on behalf of Pendley v. Highland Mining Co., 34 FMSHRC 1919, 1931
(Aug. 2012).
If a complainant establishes the required elements, the burden shifts to the operator to
rebut the prima facie case by showing “either that no protected activity occurred or that the
adverse action was in no part motived by protected activity.” Driessen v. Nev. Goldfields, Inc.,
20 FMSHRC 324, 328 (Apr. 1998).
An operator who cannot rebut the prima facie case may still raise an affirmative “mixed
motive” defense by proving that the adverse action was motivated only in part by protected
activity, and it “would have taken the adverse action for the unprotected activity alone. Haro v.
Magma Copper Co., 4 FMSHRC 1935 (Nov. 1982). The operator must prove this defense by a
preponderance of the evidence. Id., see also Pasula, 2 FMSHRC at 2799-800. When evaluating
an affirmative defense, the Court follows the two-step analysis outlined by the Commission in
Chacon v. Phelps Dodge. Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3
FMSHRC 2508 (Nov. 1981). The first step of the Chacon analysis directs the Court to determine
whether “the justification is so weak, so implausible, or so out of line with normal practice that it
was a mere pretext seized upon to cloak discriminatory motive.” 3 FMSHRC at 2516. If the
Court finds that the justification is not pretextual, it then moves to the second step, which is a
“limited examination” of the justification’s substantiality, and assesses the narrow question of
“whether the reason was enough to have legitimately moved that operator” to engage in the
adverse action.” Id. at 2516-17.

39 FMSHRC Page 1976

Discussion
In evaluating the evidence of record, the Court fully considered the parties’ post-hearing
briefs. Ms. Mulford’s brief contends she established a prima facie case by “showing: (1) her job
title was changed after hiring and relocation. (2) her hours of work were changed due to the job
title change. (3) she was retaliated against for filing a discrimination complaint and that
Robinson Mining Company then proceeded to use false mental health disability against her.”
Mulford Br. at 1.
With the findings of fact in mind, the Court notes that items (1) and (2) were not part of
her discrimination complaint. As to item (3), the Court finds that the evidence does not support
Mulford’s claim that Robinson retaliated against her for filing a discrimination complaint.
Indeed, the credible evidence establishes that Robinson went out of its way to help Mulford with
her hearing deficit issue by providing financial assistance towards the purchase of the hearing
aids, something it was under no obligation to do.
In contrast, the Court agrees with Robinson’s remark in its post-hearing brief that “the
evidence before the Court demonstrated that Robinson’s determination to terminate Ms. Mulford
was in no way motivated by discriminatory intent.” Respondent’s Br. at 2-3. Robinson goes on to
contend that Mulford’s,
claims [were] entirely unsupported by the record before this Court, and
demonstrate that Mulford is willing to make outlandish allegations without any
factual support for the claims. The credible evidence before this Court—offered
by Robinson employees—establishes that Robinson attempted to assist Mulford
with her hearing issues (Hearing Ex. R26), treated her fairly during her
employment, and did not take any action based upon Mulford’s unfounded claims
that Mr. Langston was allegedly abusing alcohol while working at the mine.
Respondent’s Br. at 3.
“In addition, Mulford cannot establish a prima facie violation because her testimony was
not credible and could not be corroborated by any evidence that was presented to this Court.” Id.
at 4.
The Court strongly agrees with Robinson’s view, finding that the evidence supports its
contentions.
Conclusions of Law
In conclusion, Ms. Mulford failed to establish a prima facie case of discrimination under
section 105(c)(3) of the Mine Act. Robinson’s reasons for discharging her were valid, and were
based upon a fundamental incompatibility of her continued employment with the Respondent.
Further, as there was no merit whatsoever to Mulford’s claims, Robinson could have elected to
terminate her employment without the need to provide a reason, at least as far as this Mine Act
discrimination proceeding is concerned. Accordingly, the Court finds that Mulford utterly failed
to prove, by a preponderance of the evidence, that Robinson discriminatorily terminated her in

39 FMSHRC Page 1977

violation of section 105(c) of the Act. Further, the Court finds that the adverse action, Mulford’s
termination, was in no part motived by protected activity.
ORDER
Ms. Heather Mulford’s complaint and this proceeding are DIMISSED.
Within the Commission’s procedural rules, 29 CFR § 2700.70, titled “Petitions for
discretionary review,” provides, in relevant part, “(a) Procedure. Any person adversely affected
or aggrieved by a Judge's decision or order may file with the Commission a petition for
discretionary review within 30 days after issuance of the decision or order. Filing of a
petition for discretionary review is effective upon receipt.” Subsection (c), within the same
section, informs the grounds upon which such petitions may be filed as follows:
Petitions for discretionary review shall be filed only upon one or more of the
following grounds: (1) A finding or conclusion of material fact is not supported
by substantial evidence; (2) A necessary legal conclusion is erroneous; (3) The
decision is contrary to law or to the duly promulgated rules or decisions of the
Commission; (4) A substantial question of law, policy, or discretion is involved;
or (5) A prejudicial error of procedure was committed.
29 CFR § 2700.70 (emphasis added).
Accordingly, the Complainant is advised that she may appeal this matter to the
Commission within 30 days of the date of this order.

/s/ William B. Moran
William B. Moran
Administrative Law Judge
Distribution:
Heather Mulford, 975 Mill Street, Ely, NV 89301
Michael Zody, Parsons Behle & Latimer, 201 South Main Street, Suite 1800, Salt Lake City, NV
84111
Robert W. Delong, Esq., 50 West Liberty Street, Suite 750, Reno, NV 89501

39 FMSHRC Page 1978

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
7 PARKWAY CENTER, SUITE 290
875 GREENTREE ROAD
PITTSBURGH, PA 15220
TELEPHONE: 412-920-7240 / FAX: 412-928-8689

October 31, 2017
TEMPORARY REINSTATEMENT
PROCEEDING

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
and JONATHAN HOLSKEY,
Complainants

Docket No. KENT 2018-0004-D
MSHA Case No. MADI-CD-2017-05

v.
Mine: Riveredge Mine
Mine ID: 15-19424

PENNYRILE ENERGY, LLC,
Respondent

AMENDED DECISION AND ORDER1
REINSTATING JONATHAN HOLSKEY
Appearances: Thomas Motzny, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, Representing the Secretary of Labor
Tony Oppegard, Esq., Lexington, KY, Representing Complainant Jonathan
Holskey
Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC, Charleston, West
Virginia, Representing Pennyrile Energy, LLC
Before:

Judge Andrews

Pursuant to Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Mine
Act” or “Act”), 30 U.S.C. §801, et. seq., and 29 C.F.R. §2700.45, the Secretary of Labor
(“Secretary”) on September 27, 2017, filed an Application for Temporary Reinstatement of
miner Jonathan Holskey (“Holskey” or “Complainant”) to his former position with Respondent
Pennyrile Energy LLC, (“Pennyrile” or “Respondent”) at the Riveredge Mine pending final
hearing and disposition of the case.
According to Commission Rule 45, a request for hearing must be filed within 10 days
following receipt of the Secretary’s application for temporary reinstatement. 29 C.F.R.
§2700.45(c). A timely request for hearing was filed on October 12, 2017, and a hearing was held
on October 19, 2017, in Madisonville, Kentucky. The parties had the opportunity to present
witnesses, documentary evidence, and arguments in support of their positions.

1

A pagination error in the original Decision has been corrected.

39 FMSHRC Page 1979

Discussion of Relevant Law
Section 105(c) of the Mine Act prohibits discrimination against miners for exercising
any protected right under the Mine Act. The purpose of the protection is to encourage miners
“to play an active part in the enforcement of the [Mine Act]” recognizing that, “if miners are to
be encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation.” S. Rep. No.
181, 95th Cong., 1 Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 623 (1978).
Congress created the temporary reinstatement as “an essential protection for complaining
miners who may not be in the financial position to suffer even a short period of unemployment
or reduced income pending the resolution of the discrimination complaint.” Id. at 624-25.
Temporary Reinstatement is a preliminary proceeding and narrow in scope. As such,
neither the judge nor the Commission is to resolve conflicts in testimony at this stage of the case.
Sec’y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999). The
substantial evidence standard applies.2 Sec’y of Labor on behalf of Peters v. Thunder Basin Coal
Co., 15 FMSHRC 2425, 2426 (Dec. 1993). A temporary reinstatement hearing is held for the
purpose of determining “whether the evidence mustered by the miners to date established that
their complaints are non-frivolous, not whether there is sufficient evidence of discrimination to
justify permanent reinstatement.” Jim Walter Resources, 920 F.2d 738, 744 (11th Cir. 1990).
In adopting section 105(c), Congress indicated that a complaint is not frivolously brought
if it “appears to have merit.” S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In
addition to Congress’ “appears to have merit” standard, the Commission and federal circuit
courts have also equated “not frivolously brought” to “reasonable cause to believe” and “not
insubstantial.” Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306
(Aug. 1987), aff'd, 920 F.2d 738, 747 & n.9 (11th Cir. 1990). “Courts have recognized that
establishing ‘reasonable cause to believe’ that a violation of the statute has occurred is a
‘relatively insubstantial’ burden.” Sec’y of Labor on behalf of Ward v. Argus Energy WV, LLC,
2012 WL 4026641, *3 (Aug. 2012) citing Schaub v. West Michigan Plumbing & Heating, Inc.,
250 F.3d 962, 969 (6th Cir. 2001).
In order to establish a prima facie case of discrimination under section 105(c) of the Act,
a complaining miner must establish (1) that he engaged in protected activity and (2) that there
was an adverse action, which was motivated in any part by that activity. Sec’y of Labor on behalf
of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other grounds sub
2

“Substantial evidence” means “such relevant evidence as a reliable mind might accept
as adequate to support [the judge’s] conclusion.” Rochester & Pittsburgh Coal Co., 11
FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. V. NLRB, 305 U.S. 197,
229 (1938)).

39 FMSHRC Page 1980

nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on
behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981).
In the instant matter, the Secretary and Holskey need not prove a prima facie case of
discrimination with all of the elements required at the higher evidentiary standard needed for a
decision on the merits. Rather, the same analytical framework is followed within the “reasonable
cause to believe” standard. Thus, there must be “substantial evidence” of both the applicant’s
protected activity and a nexus between the protected activity and the alleged discrimination. To
establish the nexus, the Commission has identified these indications of discriminatory intent: (1)
hostility or animus toward the protected activity; (2) knowledge of the protected activity; and (3)
coincidence in time between the protected activity and the adverse action. Sec’y of Labor on
behalf of Lige Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1089 (Oct. 2009). The
Commission has acknowledged that it is often difficult to establish a “motivational nexus
between protected activity and the adverse action that is the subject of the complaint.” Sec’y of
Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept.1999). The
Commission has further considered disparate treatment of the miner in analyzing the nexus
requirement. Secretary of Labor 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).
Evidence
On July 31, 2017, Holskey executed a Summary of Discriminatory Action, which was
filed with his Discrimination Complaint. In this statement, he alleged the following:
I am an experienced coal miner. I was employed at Pennyrile Energy, Riveredge
Mine until I was discharged on 6/2/2017. I suffered an at [sic] work accident on
05/15/17 causing injury to my right leg and ankle. I reported the accident this
same night 5/15/17. The brakes on the green car on #1 unit did not set up
properly. When I got out of the car it rolled back about two feet. I reported this
safety hazard. I worked on 05/16/2017 although in extreme pain and discomfort.
When I came out of the mine that morning I insisted on filling out an accident
report and going to the doctor. When I got outside after the shift I filled out the
accident report. On June 2, 2017, I was given a letter stating I was terminated
effective June 2, 2017. I am requesting my job back, all lost pay, bonuses, health
insurance, etc., that I would have otherwise earned.
Application for Temporary Reinstatement, Exhibit B.
The Declaration of Special Investigator James Jordan was also filed with the Application
for Temporary Reinstatement, and in pertinent part is as follows:
1. I am a special investigator employed by the Mine Safety and Health Administration,
United States Department of Labor. I am assigned to the Coal District 10 Office in
Madisonville, Kentucky.

39 FMSHRC Page 1981

2. As part of my responsibilities, I investigate claims of discrimination filed under Section
105(c) of the Mine Act. In this capacity, I have reviewed and gathered information as part
of an ongoing investigation arising from a complaint filed by Jonathan Holskey against
Pennyrile Energy, LLC (“Pennyrile”). My findings as a result of the investigation
disclosed the following:
a. Jonathan Holskey was previously employed by Pennyrile at the Riveredge Mine
in McClean [sic] County, Kentucky. Holskey began working at Riveredge as an
employee of Pennyrile on or about March 15, 2017. Previously, he had worked at
that mine as a contract employee. At the time of his discharge on June 2, 2017,
Holskey worked on the third shift.
b. Holskey was injured at the Riveredge mine on or about May 15, 2017. When
Holskey exited a ram car, the parking brake failed, and the car rolled over his foot
and leg. He reported this injury and complained about the ineffective ram car
brakes to Tommy Boyd, the lead man on the third shift.
c. Holskey returned to work the next day, May 16, 2017. Holskey was told by lead
man Tommy Boyd to take it easy because of the injury he received the night
before. Near the end of the shift, Boyd asked Holskey to finish the dust parameter
checks on the section and sign the board indicating that the examination had been
completed. Holskey told Boyd that he did not know how to do the “pitot tube”
reading on the continuous miner, so he felt uncomfortable performing the
examination and signing off on the board. Holskey also asked Boyd to fill out an
accident report form during that shift for the accident which occurred on the
previous shift. After that shift, Holskey and Boyd met with Susan Dixon, a person
in human resources, and Kris Maddox, the underground superintendent, where
Holskey’s injury was discussed.
d. Holskey had also made previous complaints to Boyd and others about Pennyrile
mining coal on the third shift without the proper belt examinations being done
during the shift, as required by 30 C.F.R. § 75.362(a)(1).
e. Due to the injury sustained on May 15th, Holskey missed approximately two
weeks of work. When he returned to work, on or about May 30, 2017, Holskey
worked two additional days. After clocking in on the evening of June 1, 2017,
Holskey was told to go home and return on the morning of June 2, 2017. When he
returned the next morning, Holskey was terminated, allegedly because he was a
probationary employee.
3. Based upon my investigation of these matters, I have concluded that Holskey’s complaint
of discrimination was not frivolously brought.
Application for Temporary Reinstatement, Exhibit A.

39 FMSHRC Page 1982

Summary of Testimony
Jonathan Holskey has approximately 14 years of coal mining experience. Tr. 14. He has
worked as a roof bolter, continuous mine operator, face boss, second shift mine foreman, and
lead man. Tr. 15. Holskey has Kentucky and West Virginia face bossing papers, MSHA dust
certification, and explosive blasting certification. Tr. 15.
Holskey began working at Pennyrile’s Riveredge Mine in late November of 2016.3 Tr.
15-16. He first worked through GMS for roughly four months as a contractor as a continuous
miner operator and scoop man. Tr.16.
On March 15, 2017, Holskey was hired by Pennyrile as a continuous miner operator. Tr.
16-17, 46-47. When hired, Holskey signed a two-sentence document, which stated: “I understand
that if Pennyrile Energy, LLC employs me, it is on a 90-day trial period (this means 90 working
days). If at any time during this 90 working day period either party is dissatisfied, employment
will be terminated.” Tr. 49; RX-1. Until May 1, 2017, he worked on a rotating shift, where he
would work two weeks on the dayshift and then two weeks on the second shift.4 Tr. 16-17, 4445. On May 1, Superintendent Kris Maddox asked Holskey to transfer to third shift, and Holskey
agreed to do so.5 Tr. 17, 44-45.
The third shift is a “dead shift,” meaning that it is used for maintenance, rock dusting,
and setting up equipment. Tr. 18. The third shift lasts from 11 pm to 7 am, and is responsible for
setting up the unit for the day shift. The third shift has approximately seven people, with two
mechanics at the greaser, a lead man, and three setup guys. Tr. 109. The third shift does some
production when “early coal” comes in at 5 am.6 Tr. 19. Holskey testified that he was originally
supposed to be lead man, making $28 per hour.7 Tr. 17. The lead man is the responsible person
3

The Pennyrile Mine is nonunion. Tr. 39.

4

Holskey misstated the date early in the hearing as June. Tr. 16-17.

5

Kris Maddox testified at hearing on behalf of the Respondent. Maddox worked as the
superintendent of Riveredge Mine until a week before hearing. Tr. 102-103. At the time of
hearing, he was general manager of the mine. Tr. 102-103. As superintendent, Maddox’s duties
included daily operations of the mine, mine planning, and workforce. Tr. 103.
6

According to Holskey, “early coal” usually started at 5 am, but it could start a few hours
earlier or later. Tr. 86-87.
7

Maddox described Holskey’s job as a third shift utility job, with responsibilities to help
get the unit ready for the day shift by scooping, rock dusting, and helping move power. Tr. 108.
Maddox testified that he never told Holskey that he would be the supervisor on that section, and
that no one else would have the authority to assign him to be the lead man. Tr. 109. Similarly, no
one besides Maddox could establish Holskey’s rate of pay. Tr. 110. The difference in pay
between a miner operator and utility man is $1.50 per hour, and miners who have papers receive
an extra 25 cents per hour. Tr. 110.

39 FMSHRC Page 1983

on the unit; he sets up the unit, gets it ready for the day shift to run coal. Tr. 18. As the lead man,
Holskey “took care of the miners,” by setting bits, cleaning out ductwork, and setting up in a
fresh cut. Tr. 18.
Holskey had two issues concerning his job on the third shift. Tr. 20. His first issue was
that he was supposed to be a face boss, but instead was doing the work of a laborer. Tr. 20. He
was originally told by his face boss, Matt Allen, that he would be taking the position as third
shift face boss making $28 per hour.8 Tr. 81. His second issue was that the shift was ordered to
run early coal when the belts had not yet been examined and the dust parameters were not done
correctly. Tr. 20. Holskey complained about the problems concerning belt exams and dust
parameters every day to his face boss, Tommy Boyd. Tr. 20, 88. Boyd responded that they were
going to do what they were instructed to do. Tr. 21.
On the night of May 15—when Holskey’s accident occurred—Holskey had arrived at the
unit and found the green ram car was located right behind the shack, one break outby the feeder.9
Tr. 21, 50. Holskey began by hauling rock dust from bottom to the unit using the ram car. 10 Tr.
21, 23, 50. This entails getting a ram car and going to the bottom of the slope where the rock dust
hole was located, loading it, and bring it to the unit. Tr. 21.
When Holskey went to park the ram car, he hit the panic bar, which “knocked the breaker
on the car,” and engaged an emergency disconnect that locks the car up and shuts it down
completely. Tr. 21, 51-54. Holskey turned around in his seat, and was getting out, when the
brakes failed and the ram car backed over top of him. Tr. 21-22. The car backed over him
approximately one foot, dragging him under the cab of the car. Tr. 22. Holskey sustained a

8

Holskey testified that at the mine, the terms “face boss” and “lead man” were used
interchangeably. Tr. 82.
9

The “shack” is where the power box is located, and it serves as a gathering place. Tr.
39. It is a physical structure, with a bench where people will sit. Tr. 39.
10

The height in the mine is five feet. Tr. 22. The ram car is approximately 30 feet long,
and has a bed like a pickup truck, which pivots in the middle, with the batteries that power the
car on the other end of the vehicle. Tr. 22. The operator lays down in the compartment, with the
controls to each side of him. Tr. 22. There is a chain on the car that goes from tire to tire, which
smooths out the road as one is traveling back and forth. Tr. 24.

39 FMSHRC Page 1984

crushing injury to his right foot, a deep bruise on his Achilles’ heel, a bruise on his back, and a
puncture hole in the back of his neck.11 Tr. 23, 40.
Holskey dragged himself out from under the ram car, and walked around the back to the
shack. Tr. 22-23. Holskey saw his face boss, Tommy Boyd, at the shack, sitting at the feeder,
marking up chain hangers. Tr. 23. Holskey felt nauseous, so he could not talk to Boyd, and
instead he walked back to the shack and sat down. Tr. 23. A few minutes later, after Holskey had
gathered his composure, he flagged Boyd down. Tr. 23. Holskey told Boyd what happed, how
the brakes had failed and that the car backed over his foot and back and slammed him to the
ground. Tr. 23-24. Holskey specifically complained that the brakes on the ram car failed. Tr. 24.
Boyd responded, “Well, let’s go check it out.” Tr. 23. They went back to where the incident
occurred, and it was visible where the chain on the car shifted back, with Holskey’s feet and
handprints from his attempts at escape. Tr. 23-24. Boyd said, “It’s all right, Holskey. Let’s go to
the shack and sit down and take it easy for the rest of the shift.” Tr. 23.
Back at the shack, Holskey took off his boot and showed Boyd the swelling. Tr. 24. Boyd
said, “Sit here for the rest of the shift and take it easy.” Tr. 24. Boyd sat in the shack for the
remainder of that shift. Tr. 24.

11

Nicky Stevens testified at hearing on behalf of the Respondent. Stevens worked in
maintenance in the third shift at Riveredge Mine. Tr. 147. He has worked in the mines for
approximately 40 years, and worked for Pennyrile for approximately two years. Tr. 157. He was
working at the Sebree Mine when Ricky Thorpe got crushed to death. Tr. 157.
On May 14, the second shift called out that “the brakes were spongy” on the green ram
car, so Chris Pettus and Stevens worked on it. Tr. 148-149. They worked on the car for
approximately two to three hours. Tr. 151. Stevens testified that he did not witness the incident
with Holskey and the ram car. Tr. 152.
Stevens tested all the breaking methods in the blue ram car and they worked. Tr. 154.
Stevens testified that there was no way that Holskey could have been driving the green car. Tr.
155-156. Stevens had told others at the mine that he did not know how Holskey could have been
run over by a ram car, and doubted the facts of the accident. Tr. 158. Stevens testified that he did
not like to be around Holskey because he complains, and he could not remember if he told an
MSHA representative that he did not like Holskey personally. Tr. 167.
Stevens reported to Danny Young and Greg Bowser that he did not find anything wrong
with the car Holskey was driving. Tr. 170-171.
Greg Badertscher also testified at hearing on behalf of Respondent. Badertscher was the
maintenance chief at the Riveredge Mine responsible for all underground maintenance, repair,
and upkeep of the cars and equipment. Tr. 172-173. Badertscher further cast doubt on Holskey’s
account of the accident. Tr. 172-183.

39 FMSHRC Page 1985

The next day, Holskey came into work, but could not work. Tr. 25. Boyd told Holskey,
“Just come on, you can sit at the shack and take it easy.” Tr. 25. So, on the night of May 16,
Holskey sat in the shack and did not do anything until 5 am. Tr. 25. At that time, Boyd had to
leave work, and Holskey assumed the responsibilities of the face boss. Tr. 25. These included the
pre-shift examinations and dust parameters. Tr. 25. Holskey told Boyd and third shift mine
foreman Matt Greer that he wasn’t comfortable with the dust parameters because he had never
been trained or performed a Pitot reading.12 Tr. 25, 40. Greer responded that Holskey should just
do the best he could. Tr. 25.
At approximately 6:55 am, Holskey went outside and saw that Boyd was still there. Tr.
26. Holskey went to retrieve an accident report, and testified that he “[caught] grief” from
Superintendent Kris Maddox and Susan Dixon from HR. Tr. 26-27. They did not want Holskey
to fill out the accident report or go to his doctor. Tr. 41. At first, they refused to show Holskey
where the accident reports were located, but eventually they showed him. Tr. 41. Holskey asked
Boyd to sign it, but Boyd said that he would fill it out while Boyd talked to the MSHA
inspector.13 Tr. 27. Holskey had to sign it quickly because Boyd was in a rush to leave to his
daughter’s graduation. Tr. 61. Holskey testified that he did not have an opportunity to review the
accident report. Tr. 61. Holskey then went to Maddox and Dixon to discuss which doctor
Holskey would see. Tr. 27. They wanted Holskey to see a doctor in Madisonville, and Holskey
wanted to see a doctor in the same facility closer to his house in Owensboro. Tr. 27.
After the conversation with Maddox and Dixon, Holskey went straight to the urgent care
clinic, where the doctor put Holskey in an orthopedic boot, took x-rays, explained his injuries,
and sent him home. Tr. 29. The doctor told Holskey to continue to wear the boot, and that the
more he walked on it the better he’d work it out. Tr. 29.
When Holskey went to work that night, a safety man called “Slick” Burnet met him at the
time clock and asked Holskey for his papers. Tr. 29. Holskey handed them to Burnet, and Burnet
said, “Well, I got to call Keith [Whitehouse] because you got some restrictions.” Tr. 29.
Whitehouse said that because of Holskey’s restrictions, he couldn’t work that night, so Holskey
went home. Tr. 30.
The next morning, Holskey went back to the doctor to try to get some of the safety
restrictions lifted. Tr. 30. Holskey continued going to the doctor every third day, because he felt
that his injuries were getting better. Tr. 31. On Friday, the doctor told Holskey that if he wanted
to be released to go back to work Sunday night, he would sign the release. Tr. 31. On Sunday
night, Holskey was preparing to go back to work, but his foot was still giving him some issues,

12

The dust parameters were required under the mine’s ventilation plan. Tr. 26. The Pitot
reading is necessary because there must be a certain amount of air going through the scrubber for
the dust parameter in order to mine coal. Tr. 40. The scrubber is the exhausting system for the
continuous miner that gathers dust out of the atmosphere. Tr. 40.
13

On that day’s day shift MSHA had two dust samplers coming in to run dust. Tr. 26.

39 FMSHRC Page 1986

so he went back to the doctor on Monday and the doctor placed Holskey back on the
restrictions.14 Tr. 31.
Approximately one week after the injury, Holskey was released back to work, but he was
not able to perform work because he still had to wear the boot and elevate his foot with ice. Tr.
32. Holskey’s foot was so swollen that the doctor was considering lancing it open in order to
relieve the swelling. Tr. 33.
On May 30, Holskey was released to work a second time. Tr. 33-34. When he returned,
he was taken off the unit and put on rock dusting. Tr. 34. It was unusual for Holskey to perform
this type of work, because the entire time he worked at the mine he worked with the miner. Tr.
34.
Holskey worked two shifts. Tr. 35. When he arrived for his third shift following his
release back to work, Matt Greer, the third shift foreman met Holskey at his basket and told him
to go home and come in the next day at 10 am. Tr. 35.
The following day, Holskey arrived to the mine at 10 am, and went to Kris Maddox’s
office, where Maddox, Dixon, day shift mine foreman Wyatt Oates, and maybe Whitehouse were
sitting. Tr. 35-36. No one said anything to Holskey, but instead slid a paper across the desk to
him. Tr. 36; GX-1. Holskey picked up the paper and read it, and asked Maddox, “Is this because
of the accident?” Tr. 36. Maddox replied, “No.” Tr. 36.
The letter stated in pertinent part, “Effective 6/2/2017, your employment with Pennyrile
Energy is terminated. The basis for your termination is the established policy of the Probationary
Period Clause.”15 Tr. 37; GX-1. Holskey was not provided an explanation for the termination by
anyone in the room. Tr. 37. Holskey said, “Okay,” and left to clean out his basket. Tr. 36.
Holskey was not provided any further reasons for the termination or any further information
about the probationary period. Tr. 38. Maddox testified that he told Holskey, “that it wasn’t
working out with us and it wasn’t working out with him, so I was just going to let him go due to
the probationary period.” Tr. 119-120.
Maddox was involved in both the hiring and firing processes. Tr. 103. Maddox testified
that no subordinates had authority to assign people positions or pay. Tr. 103. When employees

14

During this time period, Holskey wore the boot intermittently because the doctor said
that Holskey needed to walk on his foot, and said he should wear the boot on an as-needed basis.
Tr. 65.
15

Maddox told Dixon that Holskey was being terminated because he “could not perform
his job duties, cuts a bunch of cables, and can’t get along with others,” and she typed the
termination letter. Tr. 132. Nothing in the termination letter mentions these reasons. Tr. 133.

39 FMSHRC Page 1987

are hired, they are placed on a 90-day trial or probationary period.16 Tr. 104. Maddox testified
that the policy is explained to new employees during orientation. Tr. 105. Maddox testified that
he has terminated approximately four or five other probationary employees. Tr. 114-115.
Maddox testified that Holskey’s performance while he was at GMS was “very good.” Tr.
105. However, when he was hired full time by Pennyrile, “his work performance laxed.” Tr. 105.
Maddox testified that Holskey began “getting a lot of miner cables,” and that he was sometimes
absent from his miner. Tr. 106. This information came from Holskey’s direct supervisor, Matt
Allen. Tr. 106. Maddox testified that Holskey was moved to third shift around May 1 because
Allen told Oates that “he was tired of chasing Holskey around the unit to get him to his job.” Tr.
107. Additionally, Maddox testified that Holskey had asked Maddox to be moved to third shift.
Tr. 107. Maddox stated that he did not terminate Holskey’s employment at that time because
“you want to give somebody a chance to be put in another position so they maybe excel better at
that position.” Tr. 107.
Maddox testified that on Holskey’s second night on the third shift he received complaints
that Holskey “was acting like the mine foreman.” Tr. 110. Maddox testified that he had a
conversation with Holskey to tell him that Boyd was the boss.17 Tr. 110. Maddox further testified
that Holskey had a conversation with Maddox stating that he wanted to run coal early, and that
he would pre-shift the belts.18 Tr. 111. Maddox replied, “No. I don’t want—I don’t want that. I
want the unit set up ready to go at 7:00, and we can start loading. I don’t want early coal.” Tr.
111. Maddox said this because he wants “to give the third shift the opportunity to make sure
everything is right.”19 Tr. 112. Maddox testified coal production usually starts at approximately
7:00 am. Tr. 111. Third shift stays for approximately 30 minutes until dayshift gets there. Tr.
111-112.
Pennyrile sometimes issues written warnings, and has an employee handbook. Tr. 125.
They also sometimes reduce oral warnings to writing. Tr. 126. Holskey was never written up for
allegedly cutting the miner cable, but Maddox testified that he was “talked to.” Tr. 126.
Similarly, he was not written up for being absent from the miner, but he was “talked to.” Tr. 126.
Similarly, he was not written up for “acting like a boss,” but Maddox testified that he was
“talked to.” Tr. 127. Maddox testified that “everybody” was coming into his office complaining
about Holskey. Tr. 129. However, when asked to name any miners who complained about
Holskey, Maddox could only remember Boyd. Tr. 129. Maddox had no written documentation or
recollection of anyone complaining about not working well with Holskey, other than Boyd. Tr.
128-130. There was also no documentation for any of the previous problems of Holskey’s that
16

Maddox testified that during the probationary period, an employee can be fired for any
reason or no reason at all. Tr. 137. Maddox also testified that after the probationary period an
employee can be fired for any reason or no reason at all. Tr. 137.
17

Holskey denied that such a conversation took place. Tr. 90.

18

Holskey denied that such a conversation took place. Tr. 89-90.

19

Holskey denied that such a conversation took place. Tr. 89-90.

39 FMSHRC Page 1988

Maddox described. Tr. 128. Maddox never told Holskey that he would be discharged or
terminated for any of his conduct. Tr. 130-131. There are no written warnings or documentation
of any problems in Holskey’s personnel file. Tr. 131.
Maddox testified that he had discussions with Oates on May 12 about Holskey, and that
they were “probably going to let Mr. Holskey go.” Tr. 114. His decision was also based on
discussions with Boyd, Allen, Whitehouse, and Greer. Tr. 125. The decision to fire Holskey was
“because of the cables, poor work performance, not working well with the others.” Tr. 114.
Maddox testified that he never heard about any safety complaints from Holskey, and that the
accident report did not factor into his decision to fire Holskey.20 Tr. 120. Maddox testified that
Holskey was not physically on the property on May 12, and that when he terminates the
employment of someone during the probationary period, “I have to make sure that he’s on
property.” Tr. 114. On cross examination, Maddox admitted that nothing prevented him from
firing Holskey during the three-week period between May 12 and June 2. Tr. 121-122.
Maddox testified that he did not want to fire Holskey on May 15 because Holskey had
filled out an accident report that day, but the accident report was not filled out until a few hours
into Maddox’s shift. Tr. 123. Maddox did not have a reason for not terminating Holskey on May
16, when Holskey came into work. Tr. 124. Maddox testified that he did not fire Holskey when
he returned to work two more shifts starting on May 30, because he “just tried to let him work to
finish the week out.” Tr. 124. When it was pointed out to Maddox that those two shifts fell on a
Tuesday and Wednesday, and asked “how is that finishing the week out?” Maddox simply
responded, “I don’t know.” Tr. 124.
Contentions
The Complainant, through the Secretary and private counsel, argue that Holskey has met
his burden of establishing that his complaints are non-frivolous, and as a result he should be
temporarily reinstated. The Complainant highlights his protected activities of daily complaints
concerning walking the belts on the third shift, his accident report, complaints about the brakes
on the ram car, and his complaint that he did not know how to do the required Pitot readings.
Holskey’s termination followed shortly after these protected activities, and the Complainant
argues there was knowledge and animus towards the protected activities.
Respondent Pennyrile argues that Holskey was terminated because he cut the cables too
often, had poor work performance, and was not working well with others. The Respondent
argues that the 90-day probation policy permitted the operator to fire Holskey for any reason.

20

Maddox testified that Pennyrile’s policy on reporting accidents at the mine are to report
them immediately to the direct supervisor. Tr. 115. He testified that approximately 30 accidents
reported by employees, and that none of these employees were fired. Tr. 115, 121. He further
pointed out that Holskey was not fired after filling out his accident report in March. Tr. 120-121.

39 FMSHRC Page 1989

Analysis
The scope of this proceeding is narrow. Credibility determinations are not made;
conflicts in testimony are not resolved. It is well recognized by the Courts that the Secretary’s
burden is “relatively insubstantial”. For example, beyond the scope of the hearing is testimony
and/or documentary evidence that the adverse action was justified by unprotected activity alone
or was also motivated by unprotected activity or other non-discriminatory grounds. For the
reasons set forth below, I find that the record presents a reasonable cause to believe the instant
Discrimination Complaint was not frivolously brought.
Holskey Engaged in Protected Activity
The record contains evidence of multiple complaints and actions over a short time
period that each constituted protected activities. First, after Holskey was transferred to the third
shift on May 1, 2017, he began complaining daily to his face boss, Tommy Boyd, that the belts
had not yet been examined and the dust parameters were not performed correctly as required by
the ventilation plan. Tr. 20, 88. There is no question that such safety complaints constitute
protected activity under the Mine Act. Indeed, Section 105(c)(1) explicitly states that a miner
shall not be discriminated against because such miner “has filed or made a complaint under or
related to this Act, including a complaint notifying the operator or the operator’s agent…of an
alleged danger or safety or health violation in a coal or other mine.” 30 USC §815(c)(1).
Holskey’s daily complaints concerned health and safety matters that he believed were a
violation of the Act.
Second, after being crushed by the ram car on the night of May 15, Holskey reported the
accident and injury to Boyd. The Commission has held that the act of reporting an injury is a
protected activity under §105(c), and explained that such reporting is integral to the proper
functioning of the Act. See Swift, Snyder, and Cunningham v. Consolidation Coal Co., 16
FMSHRC 201, 205 (Feb. 14, 1994).21 Third, Holskey signed an accident report and submitted it
to management. Tr. 27, 61.
21

In Swift, the Commission stated:

We affirm the judge's conclusion that a miner's reporting of injuries to an operator
constitutes protected activity. Section 2(e) of the Act provides that “operators of
... mines with the assistance of the miners have the primary responsibility to
prevent the existence of [unsafe and unhealthful] conditions and practices in such
mines.” 30 U.S.C. § 801(e). In order to carry out this responsibility, mine
operators need to know about unsafe conditions that cause accidents and injuries.
Further, accurate information must be gathered by operators in order to comply
with the Secretary's regulations at 30 C.F.R. Part 50 (1993), requiring operators to
file with MSHA reports of all accidents and injuries that occur at mines.
Operators can be fully informed about accidents and injuries only with the
cooperation of miners. Therefore, taking adverse actions against miners for their
(continued…)

39 FMSHRC Page 1990

Fourth, after the accident, Holskey complained to Boyd that the brakes on the ram car
failed. Tr. 24. This safety complaint constituted a protected activity under the Act.
Fifth, on May 16, 2017, when Holskey was ordered to perform the dust parameters, he
told Boyd and Greer that he was not comfortable performing the Pitot readings because he had
never been trained on how to do them. Tr. 25-26, 40. This statement constituted a health and
safety complaint. It is unclear from the record if Holskey ended up performing the Pitot readings,
but if he refused to do work that he considered unsafe, then it also constituted a protected work
refusal.
Each of these safety complaints and accident reports constituted protected activities under
the Act. 30 U.S.C. §815(c)(1).

21

(… continued)

reporting of injuries would restrict the free flow of information and compromise
accurate reporting and mine safety.
We reject the operators' contention that the act of reporting a personal injury
would qualify as protected activity only if the report contains a safety complaint;
this approach takes too narrow a view of such reports. The legislative history of
the Act makes clear the intent of Congress that protected rights are to be
construed expansively. See S. Rep. No. 181, 95th Cong., 1st Sess. 36
(1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety
and Health Act of 1977, at 624 (1978) (“Legis. Hist.”).
The right to report injuries, however, carries with it a corresponding responsibility
that miners report injuries and accidents. The legislative history of the Act shows
that Congress provided protection to miners against discrimination in order to
encourage their active role in enhancing mine safety:
If our national mine safety and health program is to be truly
effective, miners will have to play an active part in the
enforcement of the Act.... [I]f miners are to be encouraged to be
active in matters of safety and health, they must be protected
against any possible discrimination which they might suffer as a
result of their participation.
Legis. Hist. at 623.
Swift, Snyder, and Cunningham v. Consolidation Coal Co., 16 FMSHRC 201, 205 (Feb. 14,
1994).

39 FMSHRC Page 1991

Holskey Suffered an Adverse Employment Action
On June 2, 2017, Holskey went to Maddox’s office, and met with Maddox, Dixon, Oates,
and perhaps Whitehouse. Tr. 35-36. Nothing was said to Holskey, but he was handed a letter that
terminated his employment. Tr. 36; GX-1. The basis for the termination, as explained in the
letter, was “the established policy of the Probationary Period Clause.” GX-1. Holskey was not
provided any other reason for his termination. Tr. 38. The Act clearly states that a discharge is an
adverse employment action. 30 USC §815(c)(1).
A Nexus Existed Between the Protected Activity and the Adverse Employment Action
As discussed supra, to obtain a temporary reinstatement a miner must raise a nonfrivolous claim that he engaged in protected activity with a connection, or nexus, to an adverse
employment action. Having concluded that Holskey engaged in protected activities and suffered
an adverse employment action, the examination now turns to whether those activities have a
connection, or nexus, to the subsequent adverse action. The Commission recognizes that direct
proof of discriminatory intent is often not available and that the nexus between protected activity
and the alleged discrimination must often be drawn by inference from circumstantial evidence
rather than from direct evidence. Phelps Dodge Corp., 3 FMSHRC at 2510. The Commission has
identified several circumstantial indicia of discriminatory intent, including: (1) hostility or
animus toward the protected activity; (2) knowledge of the protected activity; (3) coincidence in
time between the protected activity and the adverse action; and (4) disparate treatment of the
Complainant. See, e.g., CAM Mining, LLC, 31 FMSHRC at 1089; see also, Phelps Dodge Corp.,
3 FMSHRC at 2510.
Knowledge of the protected activity
According to the Commission, “the Secretary need not prove that the operator has
knowledge of the Complainant's activity in a temporary reinstatement proceeding, only that there
is a non-frivolous issue as to knowledge.” CAM Mining, LLC, 31 FMSHRC at 1090, citing
Chicopee Coal Co., 21 FMSHRC at 719. In the instant matter, there is sufficient evidence of
knowledge by Pennyrile of the various protected activities to meet the evidentiary threshold.
Holskey’s daily complaints about the dust parameters, not walking the belts for the third
shift, the faulty brakes on the ram car, the accident, and his lack of training on the Pitot readings
were made to his face boss, Tommy Boyd. Tr. Tr. 20-21, 23-24, 25, 27. Furthermore, Holskey
asked Maddox and Dixon for a blank accident report to fill out. Tr. 26-27. Maddox testified that
he was aware of the accident report as soon as it had been filled out. Tr. 123. Therefore, the
Respondent had knowledge about each of Holskey’s protected activities.
Coincidence in time between the protected activity and the adverse action
The Commission has accepted substantial gaps between the last protected activity and the
adverse employment action. See e.g. CAM Mining, LLC, 31 FMSHRC at 1090 (three weeks)
and Sec'y of Labor on behalf of Hyles v. All American Asphalt, 21 FMSHRC 34 (Jan. 1999) (a
16-month gap existed between the miners' contact with MSHA and the operator's failure to recall

39 FMSHRC Page 1992

miners from a lay-off; however, only one month separated MSHA's issuance of a penalty
resulting from the miners' notification of a violation and that recall failure). The Commission has
stated “We ‘appl[y] no hard and fast criteria in determining coincidence in time between
protected activity and subsequent adverse action when assessing an illegal motive. Surrounding
factors and circumstances may influence the effect to be given to such coincidence in time.”’ All
American Asphalt, 21 FMSHRC 34 at 47 (quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC
523, 531 (Apr. 1991).
In the instant matter, extremely close proximity in time between the protected activities
and the adverse actions greatly favors a finding that a nexus existed between the protected
activities and the adverse actions. The protected activities at issue here began on May 1, with
Holskey’s daily complaints to Boyd about the dust parameters and belt. Tr. 20. The other
protected activities surrounding the accident all occurred on May 15 and May 16. Holskey was
terminated on June 2. Tr. 35-36. Therefore, the timespan between the termination and the
protected activities ranged from 17 to 32 days.
Hostility or animus towards the protected activity
The Commission has held, “[h]ostility towards protected activity-- sometimes referred to
as ‘animus'--is another circumstantial factor pointing to discriminatory motivation. The more
such animus is specifically directed towards the alleged discriminatee's protected activity, the
more probative weight it carries.” Secretary of Labor on behalf of Chacon v. Phelps Dodge
Corporation, 3 FMSHRC 2508, 2511 (Nov. 1981) (citations omitted).
Although a single instance, even circumstantial in nature would suffice, here there are
several indications of animus. Boyd repeatedly disregarded Holskey’s health and safety
complaints in a manner that bordered on contempt. In response to Holskey’s daily complaints
about the dust parameters and belt examinations, Boyd told Holskey to simply do what they were
instructed to do. Tr. 20-21. Following Holskey’s accident with the ram car, where Holskey had
his foot crushed, his heel and back bruised, and a puncture hole in the back of his neck, Boyd
simply told Holskey to “sit down and take it easy for the rest of the shift.” Tr. 23, 40. When
Holskey complained to Boyd and Greer that he felt uncomfortable doing the Pitot readings
because he had not been trained, Greer responded that Holskey should just do the best he can. Tr.
26. Furthermore, when Holskey asked Maddox and Dixon for a blank accident report in order to
report his ram car accident, they initially refused to tell Holskey where they were kept. Tr. 41.
These responses to Holskey’s complaints and accident reports evidence animus towards
Holskey’s protected activities.22

22

The Respondent’s presentation of Nicky Stevens and Greg Badertscher further
illustrate animus towards Holskey’s protected activity of making an accident report. These
witnesses had no relevant information to offer concerning any argument or defense by
Respondent, but instead simply insinuated that Holskey’s accident report was untrue.
Respondent’s defense that Holskey’s termination was wholly unrelated to the accident or
accident report was belied by the presentation of these witnesses.

39 FMSHRC Page 1993

Disparate treatment
“Typical forms of disparate treatment are encountered where employees guilty of the
same, or more serious, offenses than the alleged discriminatee escape the disciplinary fate which
befalls the latter.” Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC
2508, 2512 (Nov. 1981). The Commission has previously held that evidence of disparate
treatment is not necessary to prove a prima facie claim of discrimination when the other indicia
of discriminatory intent are present. Id. at 2510-2513.
Maddox testified that approximately 30 employees that made safety complaints were not
fired, and that Holskey was not fired after his accident report in March. Tr. 115, 120-121. These
statements, without more information in terms of the nature of the other safety complaints, or
other employees who made complaints that were fired, is not sufficient to make a determination
on disparate treatment.
The Respondent’s Reliance on the Probation Policy is Misplaced
The Respondent’s central argument was that because the signed probationary policy
states that they were permitted to terminate a new employee’s employment for any or no reason
within 90 days, the termination of Holskey was permissible. Pennyrile’s Riveredge Mine is a
non-union mine, and all employees are at-will. Tr. 39. Maddox testified that all miners at
Pennyrile, whether in the probationary period or not, may be fired for any reason or no reason.
Tr. 137. Respondent’s counsel further argued that as a matter of employment law, probationary
employees have fewer rights than permanent employees. Tr. 192-196.
While Pennyrile may be able to fire any at-will or probationary employee for any legal
reason, it cannot rely on a signed policy to terminate an employee for reasons impermissible by
law. A host of labor, employment, civil right, health and safety, whistleblower, and other laws
protect employees in the workplace, and no policy or signed agreement can permit the company
to violate those laws. The probationary policy does not and cannot negate any provision of the
Mine Act, and the company may not force employees to sign away any rights under the Mine
Act as a condition of employment. Therefore, any reading of the probation policy that includes
protected activities is impermissible.
The Respondent’s reliance on the probationary policy is misplaced. The Respondent may
be permitted to terminate the employment of employees for any legal reason, but it cannot use
the policy to terminate employment for illegal reasons. Therefore, the argument by Maddox and
by Respondent’s counsel that Holskey was fired because of the probationary policy does not
negate the necessity of an inquiry as to whether Holskey has made a non-frivolous complaint of
discrimination under §105(c) of the Act.
Conclusion
In concluding that Holskey’s complaint herein was not frivolously brought, I find that
there is reason to believe he engaged in protected activities, and that there was a nexus between

39 FMSHRC Page 1994

the protected activities and his termination. Miner Jonathan Holskey is entitled to Temporary
Reinstatement under the provisions of Section 105(c) of the Act.
ORDER
It is hereby ORDERED that Jonathan Holskey be immediately TEMPORARILY
REINSTATED to his former job with Pennyrile Energy at the Riveredge Mine at his former rate
of pay, overtime, and all benefits he was receiving at the time of his termination.
This Order SHALL remain in effect until such time as there is a final determination in
this matter by hearing and decision, approval of settlement, or other order of this court or the
Commission.
I retain jurisdiction over this temporary reinstatement proceeding. 29 C.F.R. § 2700.45(e)
(4). The Secretary SHALL provide a report on the status of the underlying discrimination
complaint as soon as possible. Counsel for the Secretary SHALL also immediately notify my
office of any settlement or of any determination that Respondents did not violate Section 105(c)
of the Act.

/s/ Kenneth R. Andrews
Kenneth R. Andrews
Administrative Law Judge

Distribution (Via E-mail and Certified Mail):
Thomas Motzny, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219 Motzny.Thomas.J@dol.gov
Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 tonyoppegard@gmail.com
Mark E. Heath, Esq. & Denise Smith, Esq., Counsel for Pennyrile Energy, LLC, Spilman,
Thomas & Battle, PLLC, P.O. Box 273, 300 Kanawha Boulevard, East, Charleston, WV 25329
mheath@spilmanlaw.com

39 FMSHRC Page 1995

ADMINISTRATIVE LAW JUDGE ORDERS

39 FMSHRC Page 1996

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH STREET, SUITE 443
DENVER, CO 80202-2536
303-844-3577/FAX 303-844-5268

October 16, 2017
SECRETARY OF LABOR, MSHA on
behalf of LOUIS SILVA JR.,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEST 2017-0482-DM
RM-MD-17-05

v.
AGGREGATE INDUSTRIES WRC,
INC.,
Respondent

Mine: Morrison Plant
Mine ID: 05-00864

ORDER HOLDING THAT SUBJECT EMAIL
IS NOT PROTECED BY THE ATTORNEY-CLIENT PRIVILEGE
This matter is before me on a complaint of discrimination filed by the Secretary of Labor
(“Secretary”) on behalf of Louis Silva, Jr. pursuant to section 105(c)(2) of the Federal Mine
Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(2), against Aggregate Industries
WRC, Inc. (“Aggregate Industries”). Silva was terminated from his position as a Quality Control
Technician at the Morrison Plant on or about January 19, 2017.
During a deposition of Al Quist, taken on or about September 29, 2017, counsel for the
Secretary presented the witness with a copy of an email Quist sent on March 2, 2017, in response
to an email sent to him on March 1 by William Doran of the law firm of Ogletree Deakins. Quist
is the safety manager at the Morrison Plant. The emails were sent in response to the Secretary’s
Application for Temporary Reinstatement that had been filed with the Commission on or about
February 28, 2017, Docket No. WEST 2017-265-DM.1 Doran, who is an attorney for Aggregate
Industries, attached a copy of the Application for Temporary Reinstatement to the email he sent
to Quist. The emails were provided to counsel for the Secretary by Aggregate Industries during
discovery in the present discrimination case.
Matthew Linton, also with Ogletree Deakins, represented Aggregate Industries at the
deposition. When Linton saw the email, he objected to its use on the basis that it was
inadvertently disclosed to the Secretary during discovery. He stated that the email was protected
by the attorney-client privilege and noted that it stated, in a large font at the top of the email,
“Privileged and Confidential – Attorney Work Product.” Linton told counsel for the Secretary
and David Lichtenstein, counsel for Silva, that he wanted the email destroyed or returned to him.
He relied upon Rule 502(b) of the Federal Rules of Evidence. Counsel for Complainant agreed to
sequester the email during the course of the deposition.
1

The temporary reinstatement case was resolved when I granted the parties’ joint motion
to approve the terms of their agreement on economic reinstatement by order dated March 20,
2017.

39 FMSHRC Page 1997

The parties were not able to resolve the dispute concerning the email in the week or so
following the deposition. Counsel asked that I hold a conference call during which they could
present their argument to me with the understanding that I would resolve the issues surrounding
the email. They stated that they needed a quick resolution because additional depositions are
scheduled for October 17 and 19.2
Two issues were presented to me during the conference call, as follows: (1) is the email
sent by Quist dated March 1, 2017 protected by attorney-client privilege and, if so, (2) was the
privilege waived when the email was provided to the Secretary during discovery? Issues of
waiver are governed by Rule 502(b) of the Federal Rules of Evidence and Rule 26(b)(5)(B) of
the Federal Rules of Civil Procedure. Although these rules are not binding on the Commission,
they codify generally accepted evidentiary and procedural principles.
Attorney-Client Privilege
For the reasons set forth below, I find that the email in question is not protected by the
attorney-client privilege.3 The portion of the email that is the subject of the dispute is not
Doran’s email to Quist, but Quist’s response. The email sets forth Quist’s opinion that Aggregate
Industries should “fight” the temporary reinstatement case and, presumably, the underlying
discrimination case. It was not a confidential communication from Quist to Doran or any other
attorney directing him to pursue the case and it does not discuss strategy for litigating the issues.
It does contain Quist’s opinions about Silva’s discrimination complaint.
I reach this conclusion for a number of reasons. The email was sent to nine individuals,
most of whom were not attorneys. It was presented as “news” from Doran. It was addressed,
“Dear All.” Doran was not listed in the “To:” line of the email but in the “Cc:” line. Quist sent
the subject email to management officials, including two in-house counsel, stating that the
company should fight Silva’s claims. A document is not protected by the privilege just because
one or more attorneys are listed as recipients of a document. This email was not directed to
counsel for the company in confidence with instructions or information about the litigation but
was an email notifying management of the litigation and asking them to read the attached
Application for Temporary Reinstatement. The email was an announcement telling management
that the Secretary filed an application for temporary reinstatement; it was not a confidential
communication between Aggregate Industries and its attorneys. The fact that the top of the email
contained language asserting that it is privileged and confidential is not controlling. In reaching
2

The description of the events at the deposition of Quist was provided to me during the
conference call held on October 13, 2017. The parties also presented oral argument on the legal
issues raised herein.
3

At my request, a copy of the email was provided to me by Linton for my in-camera
review. I placed this email under seal and it remains under seal in the event Aggregate Industries
wishes to file a petition for interlocutory review of this order under 29 C.F.R. § 2700.76. Such
review is not a matter of right. I also had a recording made of the conference call which shall
also remain confidential.

39 FMSHRC Page 1998

this conclusion, I reject Aggregate Industries’ argument that the email was a protected
communication between Quist and Aggregate Industries’ in-house and outside counsel.
The email does not include legal advice, an attorney’s impressions of the case, or a
discussion of confidential facts or strategy from the client. Commission Judge Margaret Miller,
in BHP Copper, Inc., 38 FMSHRC 893, 897-99 (April 2016), discussed the eligibility
requirements that the Commission has relied upon in analyzing attorney-client communication
issues. I relied upon these eligibility requirements in finding that the document is not protected.
To be protected, the communication must relate to a “fact of which the attorney was informed (a)
by his client, (b) without the presence of strangers (c) for the purpose of securing primarily either
(i) an opinion on law or (ii) legal service or (iii) assistance in some legal proceeding.” Id.
(citations omitted). Although a corporate client is not just one person, I find that, upon review of
its wide distribution to lower level Morrison Plant supervisors as well as its contents, the email in
question does not meet this requirement. This email was not sent for the purpose of obtaining an
opinion of law, legal advice, or retaining the services of the law firm of Ogletree Deakins.
In addition, as Judge Miller stated, although a client may not be compelled to answer the
question, “What did you say or write to your attorney?” he may not refuse to disclose relevant
facts within his knowledge merely because he incorporated a statement of such fact into his
communication with his attorney, whether in-house or outside counsel. Id. at 898. I hold that the
email was not protected by the attorney-client privilege but, if it was, Quist could still be
required to answer deposition questions about his knowledge of facts regarding Silva’s
discrimination complaint, and his state of mind at the time of Silva’s termination and at the time
the Secretary filed the temporary reinstatement application and complaint of discrimination.
Other deposition witnesses can be asked these questions as well.
Because I find that the email in question is not protected by the attorney-client privilege, I
need not reach the issue whether the email should be destroyed or returned under Fed. R. Evid.
502(b) and Fed. R, Civ. P. 26(b)(5)(B).
ORDER
Based on information and argument provided during the conference call held with
counsel and my in-camera review of the disputed email, I hold that the email in question is not
protected by the attorney-client privilege. Nevertheless, given the importance of the attorneyclient privilege, the email shall remain sequestered to give Aggregate Industries an opportunity
to file a petition for interlocutory review, if it so desires. If it seeks such review, it shall do so as
quickly as possible.

/s/ Richard W. Manning
Richard W. Manning
Administrative Law Judge

39 FMSHRC Page 1999

Distribution:
Matthew M. Linton, Ogletree, Deakins, Nash, Smoak & Stewart, PC, 1700 Lincoln Street,
Suite 4650, Denver, Colorado 80203 matthew.linton@ogletree.com
Karen W. Bobela, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer
Boulevard, Suite 515, Denver, CO 80204 Bobela.Karen.E@dol.gov
David Lichtenstein, Esq., Law Office of David Lichtenstein, LLC, 1556 Williams Street, Suite
100, Denver, CO 80218 Dave@lichtensteinlaw.com
RWM

39 FMSHRC Page 2000

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710

October 24, 2017
SECRETARY OF LABOR,
U.S. DEPARTMENT OF LABOR on
behalf of STACEY WAYNE PUCKETT,
Complainant

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEVA 2017-426

v.
PANTHER CREEK MINING, LLC,
Respondent

Mine: American Eagle Mine
Mine ID: 46-05437

ORDER DISSOLVING
GRANT OF TEMPORARY REINSTATEMENT
Before: Judge Feldman
This temporary reinstatement proceeding is based on an application for temporary
reinstatement filed on June 7, 2017, pursuant to section 105(c)(2) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(c)(2) (“Act” or “Mine Act”), by the Secretary of Labor
(“Secretary”) on behalf of Stacey Wayne Puckett against Panther Creek Mining, LLC (“Panther
Creek”). Under section 105(c)(2), “if the Secretary finds that [the underlying discrimination]
complaint was not frivolously brought, the Commission, on an expedited basis upon application
of the Secretary, shall order the reinstatement of the miner pending final order on the complaint.”
30 U.S.C. § 815(c)(2).
The Secretary’s temporary reinstatement application was supported by a sworn affidavit
by a Mine Safety and Health Administration (“MSHA”) Special Investigator that Puckett was
terminated shortly after he was questioned regarding a section 110(c) investigation at the
American Eagle Mine. Panther Creek did not deny that the subject interaction with the Special
Investigator had occurred, arguing instead that it was unaware of any communication between
Puckett and the MSHA investigator. The Secretary’s reinstatement application was summarily
granted on July 12, 2017. Sec’y of Labor on behalf of Puckett v. Panther Creek Mining, LLC,
39 FMSHRC 1406 (July 2017). The Order of Temporary Reinstatement was subsequently
modified by the grant of economic reinstatement as agreed upon by the parties. Amendment of
Order of Temporary Reinstatement, 39 FMSHRC ___ (Aug. 22, 2017). The modified order
noted that continued economic reinstatement was contingent on the Secretary’s prosecution,
pursuant to section 105(c)(2) of the Mine Act, of Puckett’s discrimination complaint. Id.
Panther Creek has now filed an October 19, 2017, motion to vacate Puckett’s economic
reinstatement based on correspondence dated October 12, 2017, in which MSHA advised Puckett
that MSHA’s investigation failed to reveal “sufficient evidence to establish, by a preponderance
of the evidence[,] that a violation of Section 105(c) occurred.” Panther Creek Mot. to Vacate
Order of Temporary Reinstatement, Ex. A at 1. Consequently, Puckett was advised that the
Secretary had declined to bring a discrimination complaint on Puckett’s behalf. Id.

39 FMSHRC Page 2001

An order temporarily reinstating a miner cannot survive the Secretary of Labor’s decision
not to proceed with the miner’s discrimination complaint under section 105(c)(2). Sec’y of Labor
on behalf of Dunne v. Vulcan Constr. Materials, L.P., 34 FMSHRC 3070 (Dec. 2012)
(citing 700 F.3d 297 (7th Cir. 2012)); see also North Fork Coal Corp. v. FMSHRC, 691 F.3d
735, 744 (6th Cir. 2012). Consequently, the grant of the Secretary’s application for temporary
reinstatement that awarded economic reinstatement shall be dissolved.
ORDER
In view of the above, IT IS ORDERED that Panther Creek’s October 19, 2017, Motion
to Vacate Order of Temporary Reinstatement IS GRANTED. Consequently, IT IS FURTHER
ORDERED that the underlying July 12, 2017, Order Granting Temporary Reinstatement IS
DISSOLVED effective as of the date of this Order.1 Nothing herein shall bar the filing by
Puckett of a discrimination complaint on his own behalf pursuant to section 105(c)(3) of the
Mine Act. 30 U.S.C. § 815(c)(3).

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge

Distribution:
Stacy Wayne Puckett, 1016 Hopkins Road, Danville, WV 25053 (Certified Mail)
Kathleen F. Borschow, Esq., Robert S. Wilson, Esq., Office of the Regional Solicitor, U.S.
Department of Labor, 201 12th Street South, Arlington, VA 22202-5450 (Electronic and Certified
Mail)
Melanie J. Kilpatrick, Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre
Circle, Suite 375, Lexington, KY 40513 (Electronic and Certified Mail)

1

This Order dissolving Puckett’s temporary reinstatement has been served on the parties
by electronic and certified mail.

39 FMSHRC Page 2002

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
PHONE: (202) 434-9933 | FAX: (202) 434-9949

October 26, 2017
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. PENN 2017-0222
A.C. No. 36-10045-442362

v.

Docket No. PENN 2017-0223
A.C. No. 36-10045-442362

CONSOL PENNSYLVANIA COAL
COMPANY LLC,
Respondent.

Mine: Harvey Mine

ORDER GRANTING MOTION TO CONSOLIDATE
Before: Judge Moran
The Secretary has filed a motion to consolidate these dockets.1 Respondent,
Consolidation Pennsylvania Coal Company LLC, (“Consol Penn”), has filed a response in partial
objection. PENN 2017-222 involves two matters; a section 104(d)(1) citation and a section
104(d)(1) order. The first matter, Citation, No. 9076279, alleges an inadequate preshift
examination under 30 C.F.R. §75.360(b).2 That citation was issued on May 15, 2017 at Consol
Penn’s Harvey Mine, by MSHA inspector Bryan Yates. In the body of that citation, the inspector
states that the hazardous conditions constituting the basis for the inadequate preshift examination
are referenced in Citation numbers 9076271, 9076272, 9076273, 9076274, 9076278, and Order
number 9076280.
That last identified alleged violation, Order number 9076280, is the second matter within
PENN 2017-222. It is a section 104(d)(1) order, citing 30 C.F.R. § 75.400. That standard, titled
“Accumulation of combustible materials,” provides that “Coal dust, including float coal dust
deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned
up and not be permitted to accumulate in active workings, or on diesel-powered and electric

1

It is DETERMINED that the CLR is accepted to represent the Secretary in accordance
with his notice of appearance, filed September 11, 2017. Cyprus Emerald Res. Corp., 16
FMSHRC 2359 (Nov. 1994).
2

30 C.F.R. §75.360 identifies the locations where “a certified person designated by the
operator must make a preshift examination within 3 hours preceding the beginning of any 8-hour
interval during which any person is scheduled to work or travel underground.” Subsection (b)
then lists 10 locations which are to be examined and an 11th provision within that subsection lists
a number of standards that are to be included in making the preshift examination of the identified
locations.

39 FMSHRC Page 2003

equipment therein.” 30 C.F.R. § 75.400. Inspector Yates issued the alleged violation identified in
Order No. 9076280, the same day, May 15, 2017, as he issued the (d)(1) citation, No. 9076279.
The Secretary’s Motion states that “[s]everal of the citations in PENN 2017-223 are
referenced and directly related to the citations within [docket no. PENN 2017-222].” Motion at
1. The Respondent’s Response concedes that five of the citations in PENN 2017-223 “either
relate to the allegations in the Citation and Order in Docket No. PENN 2017-222, or were issued
on the same date.” Response at 1. The five related citations are identified by the Respondent as
Citation Nos. 9076271, 9076272, 9076274, 9076276, and 9076278. Id.
However, Respondent contends that “the remaining citations in Docket No. PENN 2017223 (Citation Nos. 9076258, 9076263, 9076269, 9076268, 9076270, and 9075864) involve
different dates, witnesses, facts and events which will distract from the issues in PENN 2017-222
and hamper the presentation of evidence as to the May 15, 2017 inspection.” Id.
Discussion
All of the citations and the one order involved in these two dockets were issued to Consol
Penn’s Harvey Mine. In addition, all of the alleged violations were issued between May 8 and
May 18, 2017, an 11 day span of time. Further, save one, all of the citations and the one order
were issued by Inspector Yates and even for the one citation not issued by Yates, Citation No.
9075864, the termination of that citation, was issued by Yates.
As Administrative Law Judge Thomas P. McCarthy noted in Shemwell v. Armstrong
Coal, “[g]iven the likelihood that these cases will involve similar or overlapping issues,
witnesses, and evidence, . . . consolidation . . . would further the interests of judicial economy
and efficiency.” Shemwell v. Armstrong Coal Co., Inc., 36 FMSHRC 2352, 2353 (Aug. 2014)
(ALJ McCarthy); 2014 WL 4273431, at *1 (FMSHRC August 20, 2014). He further noted that
“Commission Rule 12 states that ‘[t]he Commission and its judges may at any time, upon their
own motion or a party's motion, order the consolidation of proceedings that involve similar
issues.’” Id., citing 29 C.F.R. § 2700.12. The Commission has held that “[a] determination to
consolidate lies in the sound discretion of the trial judge.” Id., citing Pennsylvania Electric
Company, 12 FMSHRC 1562, 1565 (Aug. 1990).
The same principles apply in this matter. There will be no distraction or hampering of the
issues because, although the two dockets will be scheduled to be heard together, they will be
taken seriatim, beginning with PENN 2017-0223 and followed by PENN 2017-0222. A
conference call will be held soon to set the hearing dates for these dockets.

39 FMSHRC Page 2004

Accordingly, upon consideration of the motion to consolidate and the response thereto,
and in the interest of judicial economy and efficiency in resolving these dockets, it is
ORDERED that the above-captioned dockets be CONSOLIDATED.
SO ORDERED.

/s/ William B. Moran
William B. Moran
Administrative Law Judge

Distribution:
Douglas R. Sciotto, CLR, U.S. Department of Labor, MSHA, 631 Excel Drive, Suite 100, Mt.
Pleasant, PA 15666
James P. Hugh, Hardy Pence PLLC, 500 Lee Street, East, Suite 701, PO Box 2548, Charleston,
WV 25329
/KP

39 FMSHRC Page 2005

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004

October 26, 2017
CIVIL PENALTY PROCEEDINGS

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

Docket No. SE 2017-0092
A.C. No. 01-00851-428926 A

KEITH MILLER, employed by OAK
GROVE RESOURCES,
and

Docket No. SE 2017-0093
A.C. No. 01-00851-428927 A

CHASE GUIN, formerly employed by
OAK GROVE RESOURCES,
and
WILLIAM EDWARDS, employed by OAK
GROVE RESOURCES,
Respondents.

Docket No. SE 2017-0094
A.C. No. 01-00851-428928 A
Mine: Oak Grove Mine

DISMISSAL ORDER
Before: Judge Feldman
These personal liability matters, brought pursuant to section 110(c) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 820(c) (“Mine Act” or “Act”), concern 104(d)(1)
Citation No. 8520686 and 104(d)(1) Order No. 8520687 issued on April 26, 2013, at the Oak
Grove Mine for impermissible coal dust accumulations and inadequate preshift examinations in
violation of the Secretary’s mandatory safety standards in sections 75.400 and 75.360(a)(1),
respectively.1 30 C.F.R. §§ 75.400, 75.360(a)(1).
During the discovery phase of this proceeding, the Respondents sought to depose a Mine
Safety and Health Administration (“MSHA”) official familiar with MSHA’s investigative
procedures at its Technical Compliance and Investigation Office (“TCIO”) to determine the
1

104(d)(1) Citation No. 8520686 and 104(d)(1) Order No. 8520687, issued to
Oak Grove Resources, were resolved by means of a Decision Approving Settlement issued on
March 22, 2016. Docket Nos. SE 2014-147, SE 2014-231.

39 FMSHRC Page 2006

reason for the approximate four year interval between the issuance of the underlying citations
and the filing of the subject civil penalty petitions on April 13, 2017. In so doing, the
Respondents sought to obtain relevant evidence on whether the subject petitions for civil penalty
were filed within a “reasonable time” after issuance of a citation or termination of a relevant
inspection or investigation, as contemplated by section 105(a) of the Act. 2 30 U.S.C. § 815(a).
On June 20, 2017, the Secretary filed a Motion for Protective Order seeking to preclude
such discovery, arguing that the information was irrelevant and/or protected by privilege. The
Secretary’s request for a protective order was denied. Order Denying Secretary’s Motion for
Protective Order, 39 FMSHRC ___ (Sept. 13, 2017).
On October 4, 2017, the Secretary filed a Notice Vacating Violations and Agreement of
the Parties, that I construe as a motion to dismiss. Specifically, the Secretary has represented that
he wishes to vacate 104(d)(1) Citation No. 8520686 and 104(d)(1) Order No. 8520687 with
respect to each of the captioned respondents, and that each party agrees to bear its own fees and
other expenses incurred in these matters.
ORDER
Accordingly, IT IS ORDERED that the Secretary’s request for dismissal IS
GRANTED. Consequently, the captioned matters ARE DISMISSED.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge

2

Although section 105(a) addresses the timeframe for filing petitions for civil penalties
filed against mine operators under section 104(a), a number of ALJ’s have found it appropriate to
apply the “reasonable time” provision in section 105(a) to personal liability civil penalties
proposed pursuant to section 110(c). See, e.g., White, 38 FMSHRC 1881 (July 2016) (ALJ);
Dushane, 38 FMSHRC 1834 (July 2016) (ALJ); Trujillo, 35 FMSHRC 1485 (May 2013) (ALJ);
Dyno Nobel East-Central Region, 35 FMSHRC 265 (Jan. 2013) (ALJ).

39 FMSHRC Page 2007

Distribution: (Regular and Certified Mail):
Emily O. Roberts, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219
R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, 401 Liberty Ave., Suite
1500, Pittsburgh, PA 15222

39 FMSHRC Page 2008

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH ST. SUITE 443
DENVER, CO 80202-2500
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

October 30, 2017
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS
Docket No. VA 2014-243
A.C. No. 44-04534-346270
Docket No. VA 2014-244
A.C. No. 44-04534-346286
Docket No. VA 2014-364
A.C. No. 44-04534-352768

v.

Docket No. VA 2014-365
A.C. No. 44-04534-353549
Docket No. VA 2014-383
A.C. No. 44-04534-353996
A&G COAL CORPORATION,
Respondent.

Mine: Prep Plant #2

ORDER IN RESPONSE TO REMAND
These consolidated cases are before me on remand from the Commission. See A&G Coal
Corp., 39 FMSHRC __, slip op. No. VA 2014-243 et al. (Oct. 2017). On August 16, 2017, I
issued an Order to Show Cause to A&G Coal Corporation (“A&G” or “Respondent”) because its
representative failed to appear for a scheduled conference call to discuss lifting a stay and setting
these dockets for hearing. Unpublished Order dated August 16, 2017. The Order gave A&G until
August 28, 2017 to show good cause. A&G did not respond to the order and as a result I issued
an Order of Default on August 30, 2017. On September 29, A&G filed a petition for
discretionary review requesting relief from the default order, in which it argued it did not receive
the show cause order and only discovered its issuance when A&G received the order of default.
See A&G Coal Corporation Petition for Discretionary Review (“PDR”) at 3-4.
On review, the Commission noted a lack of clarity regarding the communication issues in
the record and remanded the case “to determine whether relief from the default is warranted and
for further proceedings as appropriate pursuant to the Mine Act and the Commission’s
Procedural Rules, 29 C.F.R. Part 2700.” 39 FMSHRC __, slip op. at 3 (Oct. 2017).
Default is a harsh remedy, and relief may be granted and the case reopened on the basis
of mistake, inadvertence, excusable neglect, or another reason justifying relief. See 29 C.F.R. §
2700.1(b); Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995); Jim Walter Res., Inc.,
15 FMSHRC 782, 787 (May 1993). Issuance of such an order by the court is never done lightly

39 FMSHRC Page 2009

without much thought and deliberation and certainly never with the intent of abusing discretion.
In fact, this is the first time in my five year tenure with the agency and fifteen year career as a
judge that I recall ever finding it necessary to issue a default order. I do, however, agree that
certain aspects of A&G’s communicative deficiencies in these cases remain unclear and will take
this opportunity to address some of the ambiguities within the record noted by the Commission.
In addition, I will set the dockets for a hearing on the merits as well as on the issue of default,
and order A&G to remedy its communicative deficiencies as specified below.
I first address the perceived ambiguity regarding who represented A&G throughout the
procedural history of these matters. The cases had been stayed since 2015 pending a 110(c)
investigation, and until early 2017, Mr. James Bowman served as A&G’s representative. On
January 27, 2017, Mr. Bowman filed a notice of withdrawal and substitution of counsel that
identified Mr. Billy Shelton as the Respondent’s new representative and provided his contact
information. Notice of Withdrawal and Substitution of Counsel, filed January 27, 2017. Mr.
Shelton did not file a formal entry of appearance as required by my prehearing order and 29
C.F.R. § 2700.3(c). See 39 FMSHRC __, slip op. at 5 (Althen, Comm’r, concurring).
The court was aware of the withdrawal notice at the time of its filing and initially
assumed that Mr. Shelton was representing A&G in these matters. The court copied Mr. Shelton
along with representatives for the Solicitor on at least one email requesting a status update on the
cases. See Court Email to A&G and Solicitor, sent March 20, 2017. On March 20, 2017, the
representatives for the Solicitor notified the court that they had instead been working with Mr.
Patrick Graham, who, according to the email, was currently representing A&G in these matters.
Solicitor’s Email to A&G and Court, dated March 24, 2017. In step with their explanation, the
Solicitor copied Mr. Graham’s email address to the correspondence instead of Mr. Shelton’s. Id.
Mr. Graham did not object or redirect the court to Mr. Shelton at that time, and Mr. Shelton
never responded to the court’s initial email. Given that no A&G representative had filed a formal
entry of appearance or responded to the status emails, the court believed, consistent with the
Solicitor’s email, that Mr. Graham was now acting as A&G’s representative at that time.
What followed were several months of intermittent emails regarding the status of these
dockets and the accompanying 110(c) investigation. Correspondences on March 27, June 30, and
August 4 were all sent to the Solicitor and Graham. Mr. Graham did not respond to those emails,
nor did either party indicate that Mr. Shelton was involved in the cases. On August 7, the
Solicitor requested a conference call with the court and Graham to discuss whether the stay
should be lifted and a hearing date should be selected. Solicitor’s Email to Court and A&G,
dated August 7. The court’s clerk scheduled the conference call for August 14, 2017 and
explicitly instructed Mr. Graham to contact the court within the week prior to the call if he
wished to reschedule. Court Email to A&G and Solicitor, dated Aug. 7, 2017. Mr. Graham did
not respond, and so the court concluded that the appointment time was acceptable to the parties.
The court decided that a show cause order was necessary when A&G did not appear for
the August 14 conference call. Mr. Graham later stated that he was underground at the time of
the conference call, which accounts for why he did not answer the attempts by the court and
Solicitor to contact him while on the line for the conference call. See Aff. of Patrick Graham at 2.
Mr. Graham admitted that he was aware of the scheduled conference call and failed to appear or

39 FMSHRC Page 2010

to notify Mr. Shelton to attend. Id. Graham therefore had the opportunity to contact the court on
a number of occasions. He could have notified the court prior to the conference call that he
would be unable to appear and requested to reschedule. He could have directed the court to
contact Mr. Shelton at this point or any point over the past three months during which he was
copied on the status emails, or he could have contacted Mr. Shelton himself to ask him to appear
for the call or otherwise contact the court. He also could have contacted the court after missing
the call to explain the situation. He did none of these things.
In the court’s view, A&G had multiple opportunities to adequately maintain
communications with the court and continually failed to do so. Pursuant to the court’s prehearing
order, it is the parties’ responsibility to maintain communications with the court, including
properly filing entries of appearances, ensuring the court has the proper contact information and
following up on any missed calls or emails. The failure to answer emails or follow up in any way
on the missed conference call thus prompted the court to issue the Order to Show Cause.1
I next address the service of the Order to Show Cause. A&G asserted in its Petition for
Discretionary Review that Graham was unaware of the show cause order until the response
deadline had lapsed and he received the default order. See PDR at 2. Mr. Graham’s unawareness
remains unexplained.
The Court maintains that it used the proper mailing address on record to serve the show
cause order to A&G. Graham stated that A&G has an office in Roanoke, and the address used,
302 South Jefferson Street, Roanoke, VA 24011, is listed on the Virginia Secretary of State’s
website as A&G’s principal office. See Aff. of Patrick Graham at 3; 2017 Commonwealth of
Virginia State Corporation Commission, Business Entity Details,
https://sccefile.scc.virginia.gov/Business/0364069 (last visited Oct. 20, 2017). Graham also
stated that he received the default order at that same address in early September. Aff. of Patrick
Graham at 2. The proof of service shows that both Orders were signed for by Ms. Leslie Wells.
See Proof of Service – OSC, dated August 16, 2017; Proof of Service – Default Order, dated
August 30, 2017. 2
A&G has not been able to explain why it only received the default Order when both
documents were served to the same address and signed for by the same employee. Regardless of
1

The Commission’s concurrence suggests that the court could have lifted the stay and set
the cases for hearing as a lesser alternative sanction. See 39 FMSHRC __, slip op. at 6 (Althen,
Comm’r, concurring). However, the court did not consider that option a sanction in that lifting
the stay and setting the dockets for hearing were in fact, the objectives of the conference call nor,
in my view, would it have adequately addressed A&G’s repeated failures to communicate with
the court.
2

The court acknowledges that the show cause order bounced back via email, consistent
with Graham’s assertion that he switched email addresses at some point in August. See Aff. of
Patrick Graham at 2. As noted above, however, Mr. Graham knew of the conference call and
failed to follow up with the court, at which time he could have also informed the court that he
was changing email addresses or was unable to access his email. Id.

39 FMSHRC Page 2011

the reasons, the discrepancy stresses the importance for the operator to ensure it will timely
receive and respond to all correspondence from the court. The court orders the Respondent to
address these communicative deficiencies as specified below, whether they represent a systemic
problem within the A&G office that resulted in misplacement of the show cause order, or
indicate that the provided address is no longer appropriate for correspondence from the court.
It is lamentable that a simple email or phone call from the operator could have prevented
this sequence of events. Nonetheless, I agree with the Commission that in all circumstances
default is a harsh remedy and that the record is not yet entirely clear as to A&G’s repeated
failures to communicate with the court and receive the show cause order. I therefore reserve the
issue of default to be addressed at hearing, which will also encompass a hearing on the merits of
the citations at issue, and will be scheduled per a separate hearing order. At the hearing, the court
expects A&G to fully address for the record good cause explanations for (1) its failure to enter an
appearance or in any way communicate with the court after it’s representative, Mr. Bowman,
withdrew from the proceedings, (2) its failure to participate in the conference call and follow up
with the court, and (3) the reasons behind its failure to receive and respond to the show cause
order. I expect Mr. Graham, Ms. Leslie Wells, and any other witness that A&G deems necessary
to testify under oath to these issues. If a subpoena for Mr. Graham or Ms. Wells is required,
A&G must notify the court no later than November 30, 2017.
Accordingly, legal counsel for A&G in these matters, be it Mr. Shelton or another, is
ORDERED to file a formal Entry of Appearance within 5 days of the issuance of this Order as
required by 29 C.F.R. § 2700.3(c) and my prehearing order. Furthermore, A&G or its legal
counsel is ORDERED to provide written confirmation of A&G’s principal mailing address and
whether there is an additional address at which A&G will timely and efficiently receive the
court’s Orders.

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge

39 FMSHRC Page 2012

Distribution: (U.S. First Class Mail)
Karen M. Barefield, Attorney, U.S. Department of Labor, 211 7th Avenue North, Suite 420,
Nashville, TN 37219
Hagel Campbell, Conference & Litigation Representative, U.S. Department of Labor, MSHA,
P.O. Box 560, Norton, VA 24273
Robert S. Wilson, Regional Counsel, U.S. Department of Labor, 201 12th Street South,
Arlington, VA 22202
Patrick Graham, Southern Coal Corporation, 302 South Jefferson Street, Roanoke, VA 24011
Billy Shelton, Attorney, Shelton, Branham & Halbert PLLC, 2452 Sir Barton Way, Suite 101,
Lexington, KY 40509

39 FMSHRC Page 2013