June 1981
Commission Decisions
6-11-81
6-23-81
'6-24-81
6-29-81
6-29-81
6-29-81

Sewell Coal Co.
so'lar Fuel Co.
Capitol Aggregates, Inc.
Penn Allegh Coal Co., Inc.
Sewell Coal Co.
King Knob Coal Co.

HOPE 78-744-P
PENN 79-142
DENV 79.-163-PM
PITT 78-97-P
WEVA 79-31
WEVA 79-360

Pg. 1380
Pg. 1384
Pg. 1388
Pg. 1392
Pg. 1402
Pg. 1417

Consolidation Coal Co.
WEVA 81-270
UMWA ex rel Norman Beaver v. North American
Coal Corp.
LAKE 81-55-D
6-02-81 Ralph Foster & Sons
WEST 79-397-M
6-02-81 Trail Mountain Coal Co.
WEST 80-451-D
6-02-81 Climax Molybdenum Co.
WEST 81-130 DM
6-03-81 Southern Ohio Coal Co.
LAKE 81-17-R
6-04-81 Phelps Dodge Corp.
CENT 79-370-M
6-09-81 Missouri Gravel Co.
LAKE 79-215-M
6-10-81 Freeman United Coal Mining Co.
LAKE 81-91
6-10-81 Radiant Coal Co., Inc.
SE 79-25-D
6-10-81 Union Carbide Corp.
WEST 80-401-M
6-11-81 Virginia Pocahontas Co.
VA 79-136-R
6-11-81 Paramont Mining Corp.
VA 81-44-D
6-11-81 Western Nuclear Inc.
WEST 80-289-DM
6-12-81 American Materials Corp.
LAKE 79-9-M
6-15-81 Kaiser Aluminum & Chemical Corp.
CENT 81-35-DM
6-15-81 Island Creek Coal Co.
WEVA 80-580-D
6-16-81 United Nuclear-Homestake Partners
CENT 79-251-M
6-16-81 Ozark-Mahoning Co.
LAKE 80-253-RM
6-16-81 United Castle Coal Co.
VA 79-141-D
6-18-81 Bradford Coal Co, Inc. Fuel Fabricators, Inc.
PENN 80-2'67
Indiana Steel & Fabricating Co.
6-19-81 Haviland Brothers Coal Co.
VINC 79-93-P
6-22-81 Haviland Brothers Coal Co.
VINC 79-93-P
6-19-81 Johnny Howard v. Martin-Marietta Corp.
SE 80-24-DM
6-24'-81 Ron Coal Co.
BARB 78-362-P
6-24-81 Subreg Corp.
WEVA 80-668-D
6-24-81 Ducharme Sand & Gravel
YORK 80-55-M
6-25-81 Missouri Portland Cement Co.
DENV 79-346-M
6-25-81 Big Three Coal Co.
KENT 80-289
6-25-81 Pikeville Coal Co.
KENT 81-i2
6-25-81 V and M Mining Co.
KENT 81-49
6-25-81 Elkins Energy Corp.
VA 80-166
6-25-81 Westmoreland Coal Co.
WEVA 80-614
6-26-81 Leslie Coal Mining Co.
KENT 79-375-R
6-29-8\1. Aearth Development Inc.
.CENT 81-40
6-29-81 United States Fuel Co.
WEST 79-81-R
6-30-81 Capitol Aggregates, Inc.
CENT 79-059-M
6-30-81 Asarco Inc.
WEST 79-124-M

Pg. 1426

Administrative Law Judge Decisions
6-01-81
6-02-81

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1443
1445
1447
1449
1458
1465
1470
1472
1490
1493
1513
1514
1524
1539
1545
1552
1563
1564

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1567
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1599
1607
1610
1611
1618
1620
1630
1636
1640
1646
1648
1653
1656
1684
1691

Commission Decisions

JUNE
The following cases were Directed for Review during the month of June:
Delmont Resources v. Secretary of Labor, MSHA, PENN 80-268-R; (Judge Cook,
April 23, 1981).
Secretary of Labor, MSHA v. Eastover Mining Company, VA 80-145; (Judge Kennedy,
April 30, 1981).
Review was Denied in the following cases during the month of June:
Secretary of Labor, MSHA v. Brown Brothers Sand Company, SE 80-124-M; (Judge
Koutras, May 1, 1981).
Secretary of Labor, MSHA v. Cement Division, National Gypsum Company,
VINC 79-154-PM; (Judge Broderick's May 20, 1981 Order - Petition for Interlocutory Review).

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

June 11, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. HOPE 78-744-P

SEWELL COAL COMPANY
DECISION
This is a civil penalty proceeding arising under section llO(a) of
the Federal Mine Safety and Health ~ct of 1977, 30 U.S.C. §801 et~·
(Supp. III 1979)(the Mine Act). J:j The issue is whether the administrative law judge erred in vacating two notices of violation on the
ground that co~pliance was impossible because of a manpower shortage.
For the reasons that follow, we reverse.
In February 1978, a federal mine inspector conducted an inspection
of Sewell Coal Company's Meadow River No. 1 Mine. The mine contains six
sections,. and 25 miles of entries and crosscuts. The roof above the
coal seam is of a glassy shale type, and is therefore fragile and
subject to fracture. The mine is also very wet, accumulating about
500,000 gallons of water per day. The mine floor undulates, which
creates places for water to accumulate.
As a result of the inspection, Sewell was cited for a violation of
30 CFR §75.1704. ]:./ The notice alleged that Sewell failed to maintain
in safe condition a designated intake escapeway to insure the passage of
any person at all times, including disabled persons. The notice was
issued because water accumulations, of varying depths up to 16 inches,
existed for approximately 40 feet in the designated escapeway.

1/
The inspector issued the notices of-violation here on February 13
and 14, 1978, under section 109(a) of the Federal Coal Mine Health and
Safety Act- of 1969, 30 U.S.C. §801 et~· (1976)(the Coal Act). The
Secretary filed his petition for assessment of civil penalty after the
effective date of the Mine Act.
]:__/
30 CFR §75.1704 states in part:
[A]t least two separate and distinct travelable passageways
which are maintained to insure passage at all times of any person,
including disabled persons, and which are to be designated as
escapeways, at least one of which is ventilated with intake air,
shall be provided from each working section ••• and shall be
maintained in safe condition and properly marked.

81-6-~

Sewell also was cited for a.violation of 30 CFR §75.200. l_/ The inspector
testified taat "there were slips and cracks in the mine roof and some of
the rock had already fallen to the mine floor and other rock was ready
fall."

to

At the time the notices were issued, employees at the mine represented by the United Mine Workers of America had been on strike for
over two months. Sewell normally employs 203 people, both union and
s~pervisory personnel, for underground work at the mine. During the
strike, however, only 33 supervisory personnel worked in the mine.
Sewell's division.safety director testified that 50 or 60 men would be
needed to prevent any conditions which might constitute violations of
the Act during an idle period. He also stated that the strike effectively
prevented the hiring of any additional personnel. No coal was mined
during the strike and the 33 working supervisory personnel limited their
activity to correcting hazardous conditions. !:!_/ However, the natural
deterioration of the 25 miles of mine, combined with the scarcity of
workers, precluded the correction of all conditions that might constitute violations of the Act. The conditions cited in the two notices
were the result of natural deterioration. Sewell conceded the existence
of the cited conditions, but contended that they were impossible to
prevent because of insufficient maintenance personnel.
The administrative law judge vacated both notices of violation,
finding that:
[T]he burden of establishing that comp1iance with the safety
standards is impossible.rests of course on the mine operator
charged. Here, as the proponent of the rule, Respondent
clearly carried its burden and established a prima f acie case by
its. evidence [l] that the mine was idled by an economic strike,
[2] that the mine deteriorates rapidly when idle due to nqtural
forces, [3] that the two violations charged occurred as a result
of such natural deterioration, [4] that the small complement· of
men (33 management personnel) available was insufficient to correct
conditions in such a large mine (25 miles of entries and crosscuts),
[5] and that the realities of labor-management relations made it
impossible to hire additional personnel to keep the mine violationfree during the prolonged period of its idleness.[.2_/]

11

30 CFR §75.200 states in part:
Each 9perator shall undertake to carry out on a continuing
basis a program to improve the roof control system of each coal
mine and the means and measures to accomplish such system. The
roof aµd ribs of all active underground roadways, travelways,
and working places shall be supported or otherwise controlled
adequately to protect persons from falls of the roof or ribs.
!±/ Sewell opted not to seal the mine during the strike because natural
mine deterioration could have caused massive roof falls as well as
flooding.
2/ The judge noted that impossibility of compliance was recognized by
the Interior Department's Board of Mine Operations Appeals. Itmann
Coal Co., 4 IBMA 61 (1975), and Buffalo Mining Company, 2 IBMA 226
(1973). In both cases the notices were vacated because of the unavailability of required equipment in the marketplace.

The Secretary does not contest these factual findings and the
record as a whole supports them. Rather, the Secretary challenges the
judge's conclusion from those facts, that compliance was impossible.
The Secretary submits that the operator had discretion; it could assign
its 33 management personnel to whatever tasks it deemed important. He
argues that although it may have been difficult to do a complete examination
of the mine so as to detect all violative conditions, such action was not
impossible. To the extent violative conditions are found that cannot be
corrected promptly, the operator could, argues the Secretary, danger-off
and post such areas so as to prevent miner access and exposure. §_/
We agree with the Secretary that the facts relied on by the judge
do not support a ·finding that compliance with the cited standards was
impossible. In fact, the violation was abated by the operator very soon
after the citations were issued. When, as here, compliance is difficult
but not impossible, the appropriate consideration of such mitigating
circumstances is in the assessment of the penalties.
In sum, we hold the judge erred in recognizing an affirmative
defense of impossibility of compliance in this case. Accordingly, the
notices of violation are reinstated and affirmed and the case is
remanded for the assessment of civil penalties.

I

I

A. E.

Marian Pearlman Nease, Commissioner

In his brief, the Secretary contends that "the proper place for
consideration of the argument raised by Sewell--that it could not. comply
with the Coal Act because it had limited manpower--is in assessment of
the civil penalty. The fact that most employees were on strike may well
mitigate the gravity and negligence associated with the violations."

!2_/

1382

Distribution
Michael McCord, Esq.
Office of the Solicitor
U.S~ Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
C. Lynch Christian, Esq.
Jackson, Kelly, Holt & O'Farrell
P.O. Box 553
Charleston, West Virginia 25322
Gary W. Callahan, Esq.
Sewell Coal Company
Lebanon, Virginia 24266
Administrative Law Judge Michael Lasher
FMSHRC
5203 Leesburg Pike, 10th Floor
Skyline Center #2
Falls Church, Virginia 22041

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

June 23, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. PENN 79-142

v.
SOLAR FUEL COMPANY
DECISION

This penalty proceeding arises under section 110 of the 1977 Mine
Act, 30 U.S.C. §801 et~· (Supp. III 1979). The administrative law
judge issued a summary decision in which he concluded that Solar Fuel
Company had not violated 30 CFR §75.503 1./ and vacated two section
75.503 citations against it. ];_/ On August 1, 1980, the Commission
directed review on its own motion. The issue before the Commission is
whether electric face equipment stipulated to be in nonpermissible
condition and intended for use inby the last open.mine crosscut, was
in violation of section 75.503 when located outby the last open crosscut.
The parties stipulated to the following facts. On May. 3, 1979, an
MSHA inspector issued a citation charging Solar with a violation of
section 75.503. The citation stat.ed that a continuous mining machine,
located outby the last open crosscut, was not in permissible condition.
The machine was not in use when cited. The following day, May 4, the
inspector issued another citation again charging Solar with a violation
of section 75.503. The citation stated that a roof bolting machine,
located in the same working area outby the last open crosscut and also
not in use at the time, was not in permissible condition.
The mine
section where the cited equipment was located was being prepared for
mining operations scheduled to begin shortly after each citation was
issued. Solar intended to use both pieces of equipment inby the last
open crosscut while performing these operations. Shortly after each
citation was issued, the cited defects were corrected. On both days,
coal was produced in the mine section in question after each citation
was issued.

1./

Section 75.503 provides:
The operator of each coal mine shall maintain in permissible
condition all electric face equipment required by §§75.500, 75.501,
75.504 to be permissible which is taken into or used inby the
last open crosscut of any such mine.
Section 75.503 is based on section 305(a)(3) of the 1977 Mine Act, which
reads:
The operator of each coal mine shall maintain in permissible condition all electric face equipment required by this subsection to
be permissible which is taken into or used inby the last open
crosscut of any such mine.
An identical statutory provision with the same section number was contained
in the 1969 Coal Act.
lJ The summary decision was issued on July 3, 1980. 2 FMSHRC 1732.
81-6-8

The judge emphasized that the Secretary had not alleged "that the
electric face equipment involved in the ••• citations was taken into or
used inby fihe last open crosscut." 2
FMSHRC at 1737. The judge rejected
the Secretary's argument that Solar's admitted' intention to take the
equipmen.t inby the last open crosscut was sufficient to prove a violation. He stated that the Secretary's position "ignores the plain
language of section 75.503 which requires that the equipment be
electric face equipment 'which is taken into or used inby the last open
crosscut."' Id. at 1735-1736. He concluded that to prove a section
7S.503 violation, the Secretary must demonstrate that an operator did
not maintain in permissible condition equipment which "was 'taken into
or used inby the last open crosscut"' (emphasis added) . I d . at 1736.
He found that the Secretary had not carried his burden because the
equipment was cited outby the crosscut. ],/
We reverse. The judge's holding cannot be squared with the plain
language and stated purpose of the relevant statutory and regulatory
provisions.
The judge's construction renders the verbs, "is taken and (is]
used," as tantamount to "has been or was taken/used." As the Secretary
argues, this approach misconstrues the grammar of these provisions. The
verbs in question are in the present tense of the passive voice, third
person singular. Among other things, the present tense denotes continuing or habitual action as well as action which always occurs or will
occur. Thus, from a grammatical standpoint, the proper meaning of these
provisions is "equipment which is taken or used inby the last open
crosscut," connoting past, present, and future conduct. In turn, this
means that equipment habitually used or intended for use inby must be
maintained in permissible condition and may be cited regardless of
whether it is located inby or outby when inspected. The emphasis is not
on where equipment is located at the time of inspection, but simply
whether it is equipment which.is taken or used inby.

ll

.In reaching his conclusion, the judge relied on section 318(i) of
the 1977 Mine Act, which defines "permissible" condition as regards
electric face equipment. The judge stated:
I find nothing. [in] the legislative history which would
support the position of [the Secretary]. On the contrary,
section 318(i) of the Act provides in pertinent part:
"'Permissible' as applied to electric face equipment means
all electr~cally operated equipment taken into or used
inby the last open crosscut of an entry •••• " In order
to support [the Secretary's] position I would have to find
that tpe language "taken into or used inby the last open
crosscut" as used in this regulation is redundant. Nowhere in the Act or regulations is there a requir~meht
that a mine operator maintain electrical face equipment
in permissible condition if it is "intended" to be taken
into or used inby the last open crosscut •••• [2 FMSHRC at
1736.]

The judge ignored the expressly stated purpose of these provisions.
While he did rely on the "permissibility" definition in section 318(i)
of the 1977 Mine Act (2 FMSHRC at 1736), he did not cite the crucial
explanation for requiring "permissibility" in the first instance:
"[P]ermissible" as applied to electric face equipment means all
electrically operated equipment taken into or used inby the last
open crosscut of an entry or a room of any coal mine the electrical parts of which ••• are designed, constructed, and installed,
in accordance with the specifications of the Secretary, to assure
that such equipment will not ·cause a mine explosion or mine fire,
and the other features of which are designed and constructed, in
accordance with the specifications of the'.Secretary, to prevent, to
the greatest extent possible, other accidents in the use of such
equipment •••• [Emphasis added.]
Identical language is contained in 30 CFR §75.2(i). Although sections
318(i) and 75.2(i) define permissibility in terms of design, construction, arid installation of electric face equipment, section 305(a).(3) of
the 1977 Mine Act and section 75.503 require that the equipment be
maintained in such "permissible" condition. We think that the conclusion
is inescapable that the equipment be so maintained for precisely the
same reason--to assure against mine accidents. The purpose of "assuring
[against] mine explosion or mine fire" militates against any interpretation of "is taken into or used inby" which would lessen that assurance.
Plainly, the judge's interpretation does not further the purpose of
assurance.
Furthermore, the judge's interpretation would lead to unacceptable
results. It would allow an operator the opportunity to operate impermissible electric face equipment inby the last open crosscut prior to a
mine inspection, move it outby during the inspection, and then return it
to the face once the mine inspector had left the premises. To adopt the
judge's holding in light of those prospects would, we believe, derogate
from Congressional intent by creating a formalistic -loophole in the 1977
Mine Act and implementing regulations. Cf. Ideal Basic Industries,
Cement Div., 3 FMSHRC 843, 844 (1981); Paramont Mining Co., 2 FMSHRC
2476,' 2477 (1980)(rejecting similarly formalistic constructions of
analogous regulations).
For the foregoing reasons, we reverse the judge's decision and
interpret 30 CFR 75.503 to apply not only to equipment which has been
taken inby the last open crosscut when inspected, but also to equipment
which is intended to be or is habitually taken or used inby, even if it
is inspected while located outby. Accor · gly, this case is remanded
for disposition consistent with this

I

I

~
A. E.

1386
Nease, Commissioner

Distribution
James L. Custer, Manager
Solar Fuel Company
P.O. Box 488
Somerset, Pennsylvania 15501
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.·
Arlington, Virginia 22203
Administrative Law Judge James Laurenson
FMSHRC.
5203 Leesburg.Pike, 10th Floor
Skyline Center #2
Falls Church, Vir~inia 22041

1387

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

·: ·..'

.

.

June 24, 1981
SECRETARY OF LABOR,
MINE SAFETY AHO HEALTH
ADMINISTRATION (MSHA)

Docket Nos. DENV 79-163-PM
DENV 79-240-PM

v.,,
CAPITOL AGGREGATES, INC.
DECISION
This civil penalty case involves the interpretation of 30 CFR
§56.17-1, a mandatory illumination standard. In a decision issued on
April 14, 1980, the administrative law judge found multiple violations
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et
seq. (Supp. "111 1979) and assessed penalties. We vacated that decision
on procedural grounds, and on remand the judge reaffirmed his prior
decision; The ope~ator, Capitol Aggregates, Inc., filed a petition for
discretionary review, which we granted in part. For the following
reasons, we affirm in part and reverse in part.
On May 17, 1978, an MSHA inspector issued Citation Nos. 169705 and
169706 alleging violations of 30 CFR §56.17-1 in Capitol's cement plant.
The standard provides:
Mand?tory.
Illumination sufficient to provide safe working conditions
shall be provided in and on all surface structures, paths, walkways, stairways, switch panels, loading and dumping sites, and work
areas.
The question in this case is wha.t constitutes "[i]llumination sufficient
to provide_ safe working conditions." Resolution requires a factual
determination based on the working conditions in a cited area and the
nature of illumination provided.
Citation No. i69705 alleged a violation of the standard because the
lights over the coke storage bin and adjacent walkways were not operable.
In concluding that the operator violated the standard, the judge was
persuaded by the inspector's unrebuttedtestimony. that the illumination
was insufficient. In the absence of negligence, the judge assessed a
$25 penalty. On remand, he saw "no reason to disturb [his] previous
.finding •••• " We conclude that substantial evidence supports the judge's
find.~ngs.

1 .., f{ ~
· ' 'l

\

(.

81-6-

The facts are undisputed. The only permanent lighting in a.30~40
foot area was· provided by a mercury vapor light, which was not operable
at the time of the.inspection, about 9:00 p.m. 1/ Electrical outlets,
extension cords, and auxiliary lighting were available, however, and
workers were equipped with flashlights. .There was little reflected
light in this coke area. Because the coke storage bin continuou.sly
supplied coke to the kiln, Capitol's employees might have to make repairs
or do maintenance on the b.in/kiln system at any time, including the
evening shift. The lack of· illumination created hazards, such as tripping
or falling, for employees performing such work.
We reject Capitol's argument that, notwithstanding the failure of
the permanent lighting, there was adequate illumination to ensure safe
working ·conditions, because it also provided electrical outlets for
portable lighting equipment and flashlights for night work. Portable
lighting could satisfy the standard where such lighting is accessible,
its use is feasible and safe, and it provides adequate light under the
circumstances. That is not the case before us, however.
Capitol states only that it provided such lighting and outlets; it
does not indicate where such lighting was stored or how easy it was to
reach. Although a worker could carry a flashlight, extension cord, and
auxiliary light in one hand, that practice may be neither safe no~
desirable. Capitol concedes that a worker might have to climb a ladder
to get to the top o·f the storage bin. It does not rebut the inspector's
testimony that climbing a ladder and performing maintenance or repairs
require the use of a worker's hands' and do not leave the hands free for
carrying a flashlight or extension cord with auxiliary lights. Nor has
Capitol established the adequacy of such portable lighting equipment; it
does not show the amount of illumination this lighting would shed.
Similarly, Capitol fails to prove that, under these facts, a flashlight
provided sufficient illumination. The evidence and the case law demonstrate otherwise.. The inspector testified without contradiction that a
flashlight would not provide sufficient light if an employee were simultaneously holding a flashlight and working on equipment. The case law
indicates that a directed beam of light such as that supplied by a cap
lamp--or, by analogy, a flashlight--may not shed sufficiently diffuse
light to provide a safe work area. Clinchfield Coal Co. at 3, March
1979 FMSHRC, 1 MSHC'2027 (Chief Administrative Law Judge Broderick,
March 12, 1979), aff'd. sub nom., Clinchfield'Coal Co. v. Secretary
of Labor, No. 79-1306, 1 MSHC 2337 (4th Cir. 1980) (unpublished).·
(Clinchfield involved the identical coal standard at 30 CFR §77.207).

1/

This light failed because a photoelectric cell, which normally activated the lamp as the sun went down, malfunctioned. Although Capitol
concedes the malfunction, it makes much of its lack of knowledge of the
malfunction. Capitol's lack of knowledge relates only to its possible
negligence. Because the judge found no negligence, Capitol's knowledge
is not at issue here. Nor did we direct that issue for review.

In the absence of evidence to the contrary, we are persuaded that ·
the judge properly credited the inspector's testimony that the lighting
was inadequate. Clinchfield, supra; J. P. Burroughs and Son, Inc., 2
FMSHRC 3266, 3269, 1 MSHC 1165, 1166 (Chief Administrative Law Judge
Broderick, 1980). We hold that, under these facts, the illumination
provided by the operator did not satisfy the standard and we thus affirm
the judge.
Citation No. 169706 alleged a violation of the standard because
there was insufficient illumination in the area under the coke impact
crusher, around the tail pulley of the C-58 conveyor belt, and by the
tail section of the apron feeder under the coke hopper. The judge found
that there were no lights and concluded that Capitol had violated the
standard "[i]nasmuch as miners might have to travel in the area at
night." In our view, his finding that minersmight have to work in the
cited area at night is not supported by substantial evidence. Consequently, we reverse his finding of a violation and vacate the underlying citation.
There was undisputed testimony that, when work was performed in the
area during daytime, there was adequate light. The judge impliedly
found that the daytime lighting was adequate, and the Secretary does not
argue otherwise. Although the inspector testified to his belief that
emergency nighttime repairs might be necessary, he did not observe any
employees there at night, nor did he testify as to the likelihood of
such nighttime repairs. By contrast, Capitol's witness testified that
employees would not have to go into C-58 conveyor area at night because
a bypass system provided sufficient fuel storage capacity so that the
plant could run all night. Even if the bypass system failed at night,
the plant had two additional days of fuel and other fuel systems
available to substitute for the bypass system; hence any necessary
repairs would not have to be made innnediately.
Under these facts, we do not believe that substantial evidence supports the judge's finding that employees might have to work in the area
at night. We hold that, because there was adequate light for safe
working conditions during the day and there was no probability of work.
being performed at night, there was no violation of the standard.
Accordingly, we reverse the judge and vacate the citation.±._/

'};_/ If even some sporadic nighttime work or the probability of nighttime
work had been shown, the result might have been different.

13!JO

Distribution
Robert W. Wachsmuth, Esq.
Kelfer, Coatney & Wachsmuth
311 Bank of San Antonio
One Romano Plaza
San Antonio, Texas 78205
Richard L. Reed, Esq.
Johnston, Krog & Vives
2600 Tower Life Building
San Antonio, Texas 78205
Nancy S. Hyde, Esq.
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Charles C. Moore
FMSHRC
5203 Leesburg Pike, 10th Floor
Skyline Center #2
Falls Church, Virginia 22041

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

June 29, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. PITT 78-97-P

PENN ALLEGH COAL COMPANY, INC.
DECISION
On September 14, 1975, Penn Allegh Coal Company filed a petition
for modification of the application of the cabs and canopies standards,
30 CFR 75.1710-l(a), to the electric face equipment at its Allegheny
No. 2 mine. 1/ The petition for modification was filed under section
30l(c) of th; 1969 Coal Act, 30 U.S.C. §86l(c)(l976), which, in relevant
part , provided:
Upon petition by the operator or the representative of miners,
the Secretary may modify the application of any mandatory
safety standard to a mine if the Secretary determines ••• that
the application of such standard to such mine will result in a
diminution of safety to the miners in such mine. Upon receipt
of such petition the Secretary shall publish notice thereof
and give notice to the operator or the representative of miners
in the affected mine, as appropriate, and shall cause
such investigation to be made as he deems appropriate.
Such investigation shall provide an opportunity for a
public hearing, at the request of such operator or
representative or other interested party, to enable

l./

The standard requires installation of protective cabs or canopies
on all self-propelled electric face equipment on a staggered time
schedule coordinated with descending mining heights. It states in
pertinent part:
(a) [A]ll self-propelled electric face equipment, including
shuttle cars, which is employed in the active workings of each
underground coal mine on and after January 1, 1973, shall,· in
accordance with the schedule of time specified in subparagraphs
(1), (2), (3), (4), (5), and (6) of this paragraph (a), be equipped
with substantially constructed canopies or cabs, located and
installed in such a manner that when the operator is at the
operating controls of such equipment he shall be protected from
falls of roof, face, or rib, or from rib and face rolls.

81-6-14
·~

J. . "-.: f\\, r..,
I

j

t:Jie operator and the representative of miners in· such
mine or other interested party to present information
relating to the modification of such standard. The
Secretary shall issue a decision incorporating his
findings of fact therein....
Any such hearing shall
be of record and shall be subject to section 554 of
title 5 of the United States Code. (Emphasis added.) ];_/
On January 9, 1976, while the petition for modification was pending
before an administrative law judge, a notice of violation of 30 CFR
75.1710-l(a) was issued to Penn Allegh for failure to provide a canopy
on a Long-Airdox electric coal drill. On June 15, 1977, the judge
issued a lengthy decision in the modification case granting the modification in part and denying it in part. Both Penn Allegh and the
Secretary appealed the decision to the Board of Mine Operations Appeals.
On March 9, 1978, the pending appeals were transferred to the Assistant
Secretary for Mine Safety and Health pursuant to the transfer provisions
of the 1977 Mine Act. 30 U.S.C. §96l(a).
The appeals remain pending
before the Assistant Secretary as of this date.
On November, 14, 1977, a petition for assessment of civil penalty
for the violation alleged in the January 9, 1976, notice of violation
was filed by the Secretary and the civil penalty case was assigned to
the administrative law judge who had heard the modification case. 11 On
December 9, 1977, Penn Allegh requested a stay of the penalty proceeding
pending the decision of the Board in the appeal of the modification
case. The judge denied the stay because the petition for modification
had not included the coal drill that was the subject of the notice at
issue in the present penalty proceeding. !!._/
On January 17, 1978, the judge issued a notice of prehearing
conference and pretrial order stating that counsel for the Secretary had
"indicated his unwillingness to concede that the use of a canopy on

:?:_/
Section lOl(c) of the 1977 Mine Act, 30 U.S.C. §8ll(c)(Supp. III
1979), provides for the same modification procedure.
11 Section llO(a) of the 1977 Mine Act requires that the Secretary
assess an operator of a mine at which a violation occurs a civil penalty.
Section 105 .sets forth the procedures for that assessment and for contesting the assessment before the Commission.
!!_/
The petition for modification as originally filed did not specify
the part;icular electric face equipment for which modification was
requested. However, at the modification hearing the parties submitted a
joint exhibit listing the electric face equipment encompassed by the
petition. The judge asked counsel for Penn Allegh if the exhibit was to
be deemed as amending the petition so as to apply only to those machines
specified therein. Counsel responded affirmatively.

' \.1d
,, ,
,,

..,>

'l',

.

respondent's coal drill will result in a diminution of the safety of the
miners and therefore [that] the canopy requirement is inapplicable."
The judge requested that the parties submit proposed stipulations
regarding the mining height and the height of the coal drill, and, among
other things, that the Secretary furnish a scale drawing "of the canopy
design MESA contends can be used safely on the coal drill in question
under the mining height present."~/ In response, the Secretary submitted a drawing of a canopy available from the manufacturer of the
drill. Penn Allegh responded by asserting that the design submit.ted by
the Secretary could not be used safely in its mine, that the judge's
prior modification decision showed that a canopy could not be used
safely, and that requiring a new modification petition would result in a
needless multiplicity of proceedings.
On February 27, 1978, the judge issued a notice of hearing and
pretrial order which stated:
.The issue in this case is whether or not the canopy design proposed
by MESA could be used safely in the 4 Right section of the No. 2
mine on January 9, 1976. This issue will be determined on the
basis of the scale drawing submitted by MESA and the dimensions as
to mining height, machine height and roof suJ:>port to which the
parties have stipulated.
In response to this order the Secretary filed a prehearing statement
that included a modified canopy design. This design contained structural
modifications not present in the previously submitted design. The
Secretary stated that he was "forced" to submit the niodified design
because the judge was "predisposed" to make findings, based upon the
modification case, which would not permit the coal drill to operate
safely when equipped with the canopy the Secretary originally proposed.
Prehearing statemei..: at 4 (March 8, 1978).
In its response to the pretrial order Penn Allegh asserted that a
"canopy utilizing the design [originally] proposed by MESA for the •••
drill could not on January 9, 1976 and cannot now be used safely in the
4 Right Section or any other section of Allegheny No. 2 Mine." Supplemental Prehearing Submission, ,114, 15, (March 15, 1978). Regarding
MESA's drawings of 'the modified canopy design Penn Allegh stated:
[T]his proposed design is incompetent and irrelevant with
respect to the subject violation. Such violation must be
adjudicated on the basis of facts and conditions as they
existed at the time the alleged violation occurred. Moreover, [Penn Allegh] denies that MESA's suggested modifications in the machine and canopy design will overcome
the hazards created by equipping the subject machine with
a canopy in 47" coal. ii

ii

The Mining Enforcement and Safety Administration (MESA) became the
Mine Safety and Health Administration (MSHA) when the 1977 Mine Act
took effect.
2_1
The parties had agreed that the minimum mining height at which the
electric face equipment would have to operate was 47 inches.

Supplemental Prehearing Submission, at 5-6, (March 15, 1978).
In a
further response to MESA's modified canopy design Penn Allegh stated:
Obviously this new design was not available on January 9,
1976 because it is strictly conceptual in nature and was
prepared for the purpose of this case and hence must be
deemed to be irrelevant. Moreover, the [structural
modification] merely exacerbates the problems of visibility and the hazards resulting therefrom.
Response to Offer of Proof, at 3, (April 3, 1978).
The matter was heard on April 6, 1978. At the start of the hearing;
the judge recited his understanding of the posture of the case:
I understood the sole issue to be determined with
respect to the fact of violation was whether the
canopy design [initially] proposed by the Secretary
••• could have been retrofitted to the •.. face drill
in use of the 4 Right Section of the No. 2 Mine without diminishing the safety of the miners.
I further understood that the issue with respect
to the fact of violation would be determined on the
basis of the canopy design configuration found in
the manufacturer's drawing .•• which the operator
agreed was available to it as early as April 1975,
and the agreed upon dimensions as to the mining
height, machine height and roof support.
Tr. 6-7.
Counsel and the judge then extensively discussed the propriety of
admitting as exhibits the Secretary's modified canopy design. Counsel
for Penn Allegh stated that "unless there was an actual canopy design
available from the manufacturer at [the time of the alleged violation]
that could have been retrofitted ••• this evidence is worthless and
irrelevant.~·
Tr. 18. After further discussion, the judge stated:
[W]hat this offer of proof if accepted amounts to is a
direction that the presiding judge impose on the operator
the burden of showing that two untested, unproved design
concepts involving a complete overhaul of the equipment
and a relocation of the operator's controls would, if
accomplished, be acceptable as a safe canopy design concept.
I think this is a thinly disguised attempt to shift
from the Secretary the burden of showin_g that the manufacturer's design configuration could be used safely
by requiring the operator to show that [the Secretary's]
untested, unproved paper design concepts would, if implemented, diminish the safety of the miner. Even if these
design
concepts are, as I assume they will be, endorsed
by [the Secretary's witness], they would still remain untested, unproved, paper concepts.

As I have said it is my strong recollection and I have confirmed that [when such testimony was presented before another judge
he] said. he could assign little weight to such conceptualizatio~
testimony. I agree and for this as well as the other reasons
adverted to reject this offer of proof.
Tr. 26-27.
After further extended discussion the Secretary stated that the
judge's ruling "wipe[s] out our case". Tr. 46. The judge then rendered
a bench decision finding that
total mining height of 48.5 inches was
necessary to allow safe operation of the drill with the canopy originally
proposed by the Secretary. Because the-stipulated minimum mining
height was 47 inches, the judge concluded that "the canopy design
configuration, proposed by the Secretary cannot be used safely in
Respondent's No. 2 mine and could not have been used safely ••• on
January 9, 1976." Tr. 55-56. J_/ On April 7, 1978, the judge issued a
written decision, reiterating his bench decision, and dismissed the
petition for penalty assessment.

a

On May 5, 1978, the Secretary filed a petition for discretionary
review with the Commission. The petition asserted that the judge erred
in declaring the standard invalid. It also raised questions concerning
the burden of proof, the admission of evidence and the taking of official
notice. On January 3, 1979, the Commission granted the Secretary's
petition. §_/
Although this matter poses potentially interesting questions regarding
the burden of proof in an enforcement proceeding brought for a violation
of a performance standard and the nature of the proof that will be

J_/

The judge also found that he had the authority to rule upon the
validity of the mandatory safety standard at issue before him. Exercising this authority, he concluded that the Secretary had failed to
follow the statutory scheme in promulgating 30 CFR §75.1710-1 and that
the stand.ard was therefore null, void and unenforceable. The judge
reached identical conclusions in his decision in Sewell Coal Co., 1
FMSHRC 1381 (WEVA 79-31, 1979). The judge's decision in Sewell was
directed for review by the Commission. For the reasons stated in our
decision in Sewell, issued this date, we conclude that the judge was
correct in finding he had the authority to rule on the standard's
validity, but erred in finding 30 CFR §75.1710-1 to be null, void and
unenforceable.
8/
At the time that the Secretary's petition for review was filed no
Commissioners had yet assumed office. Therefore the 40-day review
period expired without review of the judge's decision having been
directed. 30 U.S.C. §823(d)(l). On June 16, 1978, the Secretary filed
a petition for review of the Commission's "final order" with the U.S.
Court of Appeals for the D.C. Circuit. On November 7, 1978, after
Commissioners had been nominated and confirmed, the Secretary filed a
motion with the Court to remand the case to the Commission to allow the
Connnission the opportunity to act on the Secretary's petition for
review. The Secretary's motion was granted and the case was remanded
"so that the Commission may dispose of the Secretary's petition."

1 '. ' \ (

_( t ! , . n

considered to be probative and relevant in such proceedings it presents
a yet more fundJimental issue which connnands our attention--the propriety
o'f· allowing an operator to assert as a defense in an enforcement. proceeding •that application of the allegedly violated safety standard will
diminish the. sa~ety of miners. Our resolut·:l.On of this issue. makes
unnecessary, indeed inappropriate, discussion of the other issues rqised
in this case.
Penn Allegh's consistent.argument throughout this case has been
that to require the installation of a canopy on its coal drill will
actually diminish, rather than enhance, the safety of miners. This is
so, in Penn Allegh's view, because a canopy giving sufficient clearance
to the coal drill operator to allow safe and comfortable operation of
the drill, necessarily will be too high to allow safe operation in the
47-inch.mining height at issue. Therefore, according to Penn Allegh, to
apply the standard here is to diminish the safety of miners--a result
contrary to the Act's purposes. In view of this, Pertn Allegh submits
that the notice of violation for failure to comply with 30 CFR §75.1710
should be vacated and the petition for assessment of penalty dismissed.
Section 30l(c) of the 1969 Coal Act and section lOl(c) of the 1977
Mine Act expressly provide a specific mechanism for handling those
situations where the application of a standard diminishes, rather than
enhances, miners' safety. In such situations, the operator is required
to petition the Secretary for relief from the application of the standard.
Upon receipt of such a petition the Secretary gives notice, conducts ari
investigation, provides an opportunity for a public hearing, and issues
a decision granting or denying the relief sought. The Secretary has
adopted detailed regulations governing the processing of such petitions.
30 CFR Part 44. Multi-level review of a modification petition is provided; the initial decision being made by the Administrator of MSHA with
the right to be heard by an administrative law judge of the Department
of Labor and with an appeal to the Assistant Secretary of Labor. Only a
decision of the Assistant Secretary is deemed final agency act.ion for
purposes of judicial review. 30 CFR 44.51. !}_/
Thus, there is a clear distinction between modification proceedings
instituted by an operator and enforcement proceedings instituted by the
Secretary. The two serve related but separate ends. In one the Secretary
must prove failure to comply with a standard he has adopted for application to the mining industry in general. In the other, the operator•
must demonstrate why compliance should be waived in view of the special
facts at a particula~ mine.
In the present case, it is undisputed that the coal drill was not
equipped with a ~anopy as required by the standard. It is ~lso undisputed
that Penn Allegh did not seek a modification of the cabs and canopies
standard for the coal drill at issue. Penn Allegh failed to do so even
in view of the fact that it had previously filed a petition for modif ication of the same standard as it applied to many other pieces of

ii

Under the 1969 Coal Act modification proceedings were processed
through the Department of Interior's Office of Hearings and Appeals with
a right of appeal to the Board of Mine Operations Appeals. See 43 CFR
§4.550 (1972)).
-

equipment and, therefore, was obviously aware of the procedure to be
followed. Instead, with regard to the coal drill at issue here, Penn
Allegh waited until it was cited for non-compliance and then raised in
the enforcement proceeding the same question that could have been
resolved in a modification proceeding, i.e., whether application of the
standard would cause a diminution of safety at its mine.
We cannot endorse this short circuiting of the Act's modification
procedures. We believe it important that questions of diminution of
safety first be pursued and resolved in the context of the special procedure provided for in the Act, i.e., a modification proceeding.
A similar conclusion has been reached in an analogous situation
under the Occupational Safety and Health Act of 1970, 29 U.S.C. §651 et
~·
In the OSHA statutory scheme, an employer may apply to the Secretary of Labor for a variance from a standard's application. 29 U.S.C.
§655(d). As with the Mine Act, the OSHAct's variance procedure is
distinct from the Act's enforcement procedure. In enforcement proceedings the Occupational Safety and Health Review Commission has
likewise been confronted with arguments that a violation of the Act
should not be found where compliance with a standard would result in a
"great er hazard" than non-compliance i.e. , a diminution of safety. Irt
establishing a narrow "greater hazard" defense, the OSHRC has set forth
three elements: 1) the hazards of compliance are greater than the
hazards of non-compliance; 2) alternative means of protecting employees
are unavailable; and 3) a variance application would be inappropriate.
(Emphasis added.) See,~·· Russ Kaller, Inc. t/a Surfa-Shield, 4 BNA
OSHC 1758 (1976).
The Third and Ninth Circuits have affirmed this forumulation of the
defense. In General ElectrJc Co. v. Secretary, 576 F.2d 558, 561 (3d
Cir. 1978), the Court stated:
Every employer has the initial obligation to make sure that
his working areas comply with all applicable standards. If there
is reason to believe that compliance with certain standards may
jeopardize his employees, a variance should be sought. If a
"greater hazard" defense is allowed at an enforcement proceeding
without requiring initial resort to the variance procedures or a
showing that such resort would be inappropriate, there would be
• little incentive for an employer to seek a variance under these
circumstances.
General Electric contends that an employer who correctly
believes that his working conditions are safer than those prescribed in the standards should not be penalized for bypassing the
variance procedures and taking his chances that he will not be
cited or that he will prevail in an enf9rcement proceeding. The
flaw in this argument is that some employers will believe
incorrectly that their working conditions are safer than those
prescribed in the standards. By removing this incentive to
seek variances, the Commission would be allowing an employer to
take chances not only with his money, but with the lives and
limbs of his employees. This we cannot do. [Emphasis added.]
The Ninth Circuit endorsed the Third Circuit's reasoning in Noblecraft
Industries v. Secretary, 614 F.2d 199 (1980).

We find this rationale compelling and applicable to the modification procedures of the mine safety statutes. A statutory procedure is
and was available to Penn Allegh to obtain a waiver of the application
of the cabs and canopies standard to the coal drill at issue. That
procedure involves a forum different from this Commission, (i.e., the
Department of Labor) and Penn Allegh was aware of the applicable procedures for obtaining the relief sought here. Penn Allegh did not avail
itself of this opportunity. Instead, it chose to operate the drill
without a canopy, an admitted violation of the standard, and waited
until it was cited before making its argument regarding diminution of
safety. Thus, Penn Allegh, rather than the Secretary, has determined
that compliance is unnecessary. If Penn Allegh is wrong, employees have
been exposed to a hazardous condition in violation of the Secretary's
standard. 10/ At the present time, we cannot forecast with any certainty
whether Penn Allegh could or could not have equipped its drill with a
safe canopy. 11/ The responsibility for making that determination rests
in a different forum and should not be determined here.
10/ We recognize that if Penn Allegh is right requiring literal compliance would mean that miners would be exposed to a hazardous condition.
We view the regulatory scheme of the Act, however, as being premised
upon the proposition that compliance with the safety standards adopted
by the Secretary protects the nation's miners, and that the procedures
permitting non-compliance, i.e., the modification provisions, must be
strictly observed. We also stress, however, that the Secretary's
regulations appear to provide a vehicle for insuring that the safety of
miners is not compromised during the pendency of a modification petition.
30 CFR §44.16 provides for interim relief from the application of a
standard pending final decision on a petition for modification. Also,
30 CFR 44.4(c) provides that "the granting of the modification ••• shall
be considered as a factor in the resolution of any enforcement action
previously initiated for claimed violation of the subsequently modified
mandatory safety standard." This case does not present a situation
where an enforcement proceeding was brought by the Secretary after the
operator had filed a modification petition and before that petition had
been finally resolved.
11/ The fact that Penn Allegh had received a partially favorable
decision from an administrative law judge in its modification case is of
no importance. Although the facts forming the basis of the favorable
portions of that decision possibly could be analogized to the facts of
the present case, both parties appealed the judge's decision and no
final decision on the petition for modification has yet been issued.
Therefore, the administrative law judge's decision granting a waiver as
to other items of equipment does not provide a sound basis for excusing
Penn Allegh's failure to file a modification~petition here.

139B

Therefore, we hold that.the 4defense of diminution of safety was
improperly raised and accepted in this enforcement proceeding. 12/ The
judge's decision is reversed and the case is remanded for further
proceedings consistent with this decision.

Marian Pearlman Nease, Commissioner

12/ Nor in this case could Penn Allegh assert, as an alternative to its
disallowed defense, that it was technologically impossible for it to
comply. Such a defense would be merely an adjunct to its diminution of
safety defense because it is "technologically impossible" only because
it diminishes saf ety--not because it is impossible to fit a canopy on
the coal drill.

.!400

Distribution
Cynthia L. Attwood, Esq.
Thomas Mascolino, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
22203
Arlington, Virginia
William D. Sutton, Esq.
Glenn E. Bost, II
Thorp, Reed & Armstrong
2900 Grant Building
Pittsburgh, Pennsylvania 15219
Administrative Law Judge Joseph B. Kennedy
Office of the Administrative Law Judges
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike
10th Floor - Building #2
Falls Church, Virginia
22041

.l ·10 j

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

June 29, 1981
SECRETARi OF LABOR,
MINE SAFETY AND HEALTH
ADMINif~RATION (MSHA),
Petitioner

v.

Docket No. WEVA 79-31

SEWELL COAL COMPANY
Respondent
DECISION
This case arose when the Department of Labor's Mine Safety and
Health Administration (MSHA) sought civil penalties under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (Supp. III
1979) ("the 1977 Mine Act"), for alleged violations of the cab and
canopy standard for underground coal mines, 30 CFR §75.1710-l(a). !/
The relevant facts are not disputed. Sewell Coal Company was cited by
MSHA for failing to equip a roof bolter and a shuttle car with canopies.
The alleged violations were abated and the Secretary filed a proppsal
for civil penalties. ±./
Prior to hearing the Secretary and Sewell agreed to a settlement of
the matter. The Secretary filed a motion with the administrative law
judge to approve the settlement. 3/ The judge denied the motion. The
judge found that Sewell could not-comply with the cited standard "without diminishing the safety of the miners and depriving them of the

!/

30 CFR §75.1710-l(a) states in pertinent part:
[A]ll self-propelled electric face equipment, including
shuttle cars, which is employed in the active workings of each
underground coal mine on and after January·!, 1973, shall, in
accordance with the schedule of time specified in subparagraphs
(1), (2), (3), (4), (5), and (6) of this paragraph (a), be equip:._Jed
with substantially constructed canopies or cabs, located and
installed in such a manner that when the operator is at the
operating controls of such equipment he shall be protected from
falls of roof, face, or rib, or from rib and face rolls.
!:./ The notice of violation pertaining to the roof drill was terminated
when the section in which the drill was being used was abandoned and the
equipment withdrawn from use. The citation pertaining to the shuttle
car was terminated when the equipment was replaced with another shuttle
car that had a canopy.
·
1J Section llO(k) of the 1977 Mine Act, 30 U.S.C. §820(k) states:
No proposed penalty which has been contested before the Commission
••• shall be compromised, mitigated or settled except with the
approval of the Connnission.

1402

81-6-13

protection afforded by section 318(i) of the mandatory safety standards,
30 U.S.C. §878(i)." He further found that the Secretary's failure to
comply with section 318(i) rendered the cab and canopy standard "null,
void and unenforceable." He therefore dismissed the petition for
assessment of penalty. In a memorandum opinion issued in conjunction
with his decision dismissing the penalty petition, the judge set forth
his reasons for concluding that he was empowered to pass upon the
validity of the standard and for finding the standard invalid.
This case presents us with two important threshold questions:
whether the judge had the authority to rule upon the validity of 30 CFR
75.1710-l(a) and, if so, whether he properly found the standard null,
void and unenforceable.
I.

The standard at issue was promulgated under the Federal Coal Mine
Health and Safety Act of 1969, 30 U.S.C. §801 et. seq. (1976)(amended
1977) ("the 1969 Coal Act"), and was adopted on October 3, 1972. 37
Fed. Reg. 20689-90 (1972). Therefore, the question of whether the
validity of the standard can be challenged in an enforcement proceeding
must first be addressed in terms of the relevant procedures under the
1969 Coal Act. The 1969 Coal Act did not have a specific provision
regarding the proper vehicle for challenging the validity of standards
adopted by the Secretary. Furthermore, case law involving such challenges
is sparse. From our review, it appears that validity challenges were
left to be raised in the various types of enforcement proceedings
provided for in the Coal Act. See §§106(a)(l), 109. For example, in
U.S. v. Finley Coal Co., 345 F. Supp. 62 (D.ED. Ky., 1972), aff'd, 493
F.2d 285 (6th Cir. 1974), the defense of improper promulgation of
standards was raised and accepted in a criminal proceeding brought under
the Coal Act. In Morton v. Delta Mining, Inc., 495 F.2d 38, 43 (3d Cir.
1974), rev'd on other grounds, 423 U.S. 403 (1976), a challenge to the
Secretary's penalty assessment regulations was upheld in a penalty
collection proceeding. See also Association of Bituminous Contractors
v. Andrus, 581 F.2d 853,-s6"5-866 (D.C. Cir. 1978)(Leventhal, concurring),
in which it is suggested that, under the Coal Act, the promulgation of
a health or safety standard was appropriately chall~nged directly in the
courts of appeals under section 106 of the Act. Apart from sta·::utory
enforcement proceedings, a further possible avenue of relief was the
institution of a suit for injunctive relief against the enforcement of
allegedly invalid regulations. See National Independent Coal Operator's
Ass'n v. Kleppe, 423 U.S. 388 (1976).
Although challenges to the validity of standards under the 1969
Coal Act were left to be raised in enforcement proceedings, the administrative body established by the Secretary of Interior to adjudicate
contested cases, the Board of Mine Operations Appeals, declined to
review such challenges. The basis for the Board's conclusion was that

J1oa

the delegation of authority to 'it by the Secretary of Interior did not
encompass the authority to invalidate rules and regulations issued by
the Secretary.. Buffalo Mining Co., 2 IBMA 226, 242-245 (1973). Because
of this perceived limitation on its authority, the Board stated: "The
power t~ invalidate rules and regulations promulgated by the Secretary
is not within the scope of authority of this Board or the Administrative
Law Judge. This power resides in the U.S. District Courts and the
Courts of Appeals." Peabody Coal Co., 4 IBMA 137, 138 (1975).
This basis for the Board's refusal to entertain a challenge to the
validity of a standard does not apply to this Commission. The Commission
is an independent _adjudicative agency, entirely separate from the
enforcing agency, and its authority to review Secretarial action is not
subject to the same constraints as were perceived by the Board. Helen
Mining Co., 1FMSHRC1796, 1798-1801 (1979), ~· for rev. filed, Nos.
79-2518, -2537, D.C. Cir., Dec. 19 & 21, 1979. The Commission has been
given primary adjudicative jurisdiction over disputes arising under the
Act and is authorized to decide independently questions of fact, law,
and policy. 30 U.S.C. §823(d). See Bituminous Coal Operator's Assoc.
v. Marshall, 82 F.R.D. 350 (D.D.C. 1979); Council of the Southern
Mountains v. Donovan, No. 79-2982 (D.D.C., May 19, 1981). The determination of the validity of a standard obviously could be an important
step in the resolution of disputes brought before the Commission and,
absent some'appropriate limitation on our authority to do so, we believe
validity challenges should be resolved by the Commission.
The Secretary vigorously asserts, however, that section lOl(d) of
the 1977 Mine Act is such a limitation of our authority. This section,
in pertinent part, provides:
Any person who may be adversely affected by a mandatory health
or safety standard promulgated under this section may, at any time
prior to the sixtieth day after said standard is promulgated, file
a petition challenging the validity of such mandatory standard with
the United States Court of Appeals for the District of Columbia
Circuit or the circuit wherein such person resides or has his
principal place of business, for a judicial review of such
standard •••• The procedures of this subsection shall be the
exclusive means of challenging the validity of a mandatory health
or safety standard. (Emphasis added.)
This provision by its terms concerns pre-enforcement challenges to
standards adopted under the 1977 Mine Act, and did not become effective
until March 9, 1978. The 1977 Act is silent with respect to the review
of standards previously adopted under the predecessor 1969 Coal Act. We
fail to see how section lOl(d) of the 1977 Mine Act can be applied
retroactively to foreclose a challenge to a standard adopted under the
1969 Coal Act five and one-half years before __ section lOl(d) 's effective
date. In our view, the 1977 Mine Act leaves intact tjle avenues available

under the 1969 Coal Act for challenging the validity of standards adopted
under that Act. !!_/
Therefore, .because challenges to the validity of standards adopted
under the 1969 Coal Act were left to be raised in enforcement adjudications,
because the Commission stands in a position fundamentally different from
the Board of Mine Operations App~als, and because section lOl(d) of the
1977 Mine.Act is only prospectively applicable to standards adopted
under that Act, we hold that a challenge. to the validity of a standard
adopted under the 1969 Coal Act can be raised and decided in an adjudication before the Commission. 2_/
II.

Turning to the question of the standard's validity, for the following reasons we conclude that the judge erroneously found 30 CFR §75.1710l(a) to be null, void and unenforceable. The starting point for our
analysis is to trace the development of section 318(i) of the 1969 Coal
Act to determine its impact, if any, on the adoption of the improved cab
and canopy standard.
The provisions of section 318(i) first appeared in Senate bill
2917, as reported, ~as section 206(1) (10). Legis. Hist. at 52-58. §_/
In order to fully understand the requirements of section 318(i) it is
necessary to read _it in the context of the subsections preceeding it
(section 206(1)(1)-(9) in S. 2917 as reported, and section 305(a)(l)(12) as passed), and the relevant legislative history behind these
sections. As will be explained below, although most of the discussion
in the legislative .history concerning sections 305(a) and 318(i) is
directed to the former, the discussion also sheds considerable light on
the proper interpretation to be given section 318(i) in this case.
Section 305(a)(l)-(12) and section 318(i) were derived from section
206(1)(1)-10) in S. 2917, as reported. The Senate Committee Report
accompanying S. 2917 devoted considerable attention to the need for the
provisions of section 206(1)(1)-(10) as a means for controlling ignitions
and explosions. Legis~ Hist. at 151-161. More specifically, much
debate was generated over whether to eliminate the distinction between
gassy and non-gassy mines, the appropriate time periods for requiring
electric face equipment in all mines to be permissible, and the attendant
costs and benefits. Id. The Senate Committee resolved these questions
by deciding to eliminate the gassy/non-gassy distinction, require the
use of permissible.equipment but provide for non-compliance permits, and
establish field testing procedures and economic assistance. Id.
4/ We note that mandatory standards promulgated under the 1969 Coal Act
remain in effect under the 1977 Mine Act until the Secretary of Labor
issues a new or revised standard. 30 U.S.C.-96l(b).
i/ Thus, the application and effect of section lOl(d) of the 1977 Mine
Act is left to be determined in an appropriate future case.
&_I References to "Legis. Hist." are drawn from the Senate Subcommittee
on Labor, Committee on Labor and Public Welfare, 94th Cong., 1st Sess.,
_ Legislative History of the Fed:ral Coal Mine Health and Safety Act of
. 1969 (Aug. 1975).

The section-by-section analysis accompanying the Committee Report
further discusses the requirements of section 206(1) and, in relevant
part, states:
This section would also define the term 11 pn:r1nissible electric face
equipment" to mean electric equipment taken intn or used inby the
last open crosscut of the mine--that is, the workir,, place--or
parts thereof which meets the Secretary's speciFications relative
to preventing the emission of a spark or arc which could cause
a mine fire or explosion and which includes other fe~tures to prevent, where possible, accidents in the use of e~· ... tp"_2nt.
The present regulations of the Bureau of Mines (Schedule 2G)
would continue until changed, but the Secretary mtist L.iunediately
develop practical methods, such as field testing, tu facilitate
approval, for permissibility both under the present reg1<i..:1. tions and
under revised regulations--to account for the mines requ ;_.,.. e:d to use
permissible equipment by this bill. Such methods w~ )d .1.eo ognize
that the primary objective is to prevent mine fires and mine
explosions from this equipment. Without sacrificing safety, some
types of equipment, such as "home-made" equipment in some small
mines, might be made permissible for this purpose. Efforts in this
direction would facilitate approvals of such equipment without the
necessity for three year examinations of prototypes in the Bureau
of Mines laboratory. (Emphasis added.)
Legis. Hist. at 194-195.

See also Legis. Hist. at 159-160.

In a statement of the individual views of two members of the Senate
Committee, two members noted their opposition to the elimination of the
gassy/non-gassy distinction and the required use of permissible electric
face equipment in all mines. Legis. Hist. at 227-233. On the floor of
the Senate, considerable debate was focused on this aspect of the bill.
The issue was addressed at length. Legis. Hist. at 224-245, 353-355,
360-390, 397-398, 603-664, 668-673, 681-703. The Senate debate was
resolved in favor of eliminating the distinction between gassy/non-gassy
mines concerning the use of permissible electric face equipment, but
extending the effective dates for non-gassy mines and establishing a
procedure for granting permits for noncomplying equipment. See Legis.
Hist. at 832-839 for text of section 206(1) as passed by Senate.
Section 305 of House Bill 13950 dealt with permissible electric
equipment. Legis. Hist. at 985-991. This section was similar to
section 206(1) of the Senate Bill in that it eliminated the distinction
between gassy/non-gassy mines and provided for noncompliance permits in
non-gassy mines. See House Committee Report on section 305(a), Legis.
Hist. at 1054, and section-by-section analy?is at 1077-1079. See also
House Floor Debate at 1171, 1203, 1307, 1340-1242, 1350-1365 and 1379.
As is clear from a review of these latter cited portions of the.legislative history, the focus of the debate over permissibility requirements
was different in the House than in the Senate. Whereas in the Senate
most of the debate focused on whether to eliminate the gassy/non-gassy
distinction, in the House the debate focused on whether in mines
formerly classified as non-gassy, the period provided for achieving
permissibility was too long a period.

In conference, the language of the Senate bill was adopted with
technical changes and with changes in the time requirements for compliance. Legis. Hist. at 1527, 1564. The language agreed to in
conference was enacted as sections 305(a) and 318(i) of the 1969 Act.
With this background, we can now return to consideration of the
judge's interpretation of section 318(i). As enacted section 318(i)
provides:
"permissible" as applied to electric face equipment means all
electrically operated equipment taken into or used inby the last
open crosscut.of an entry or a room of any coal mine the electrical
parts of which, including, but not limited to, associated electrical
equipment, components, and accessories, are designed, constructed,
and installed, in accordance with the specifications of the
Secretary, to assure that such equipment will not cause a mine
explosion or mine fire, and the other features of which are
designed and constructed, in accordance with the specifications
of the Secretary, to prevent, to the greatest extent possible,
other accidents in the use of such equipment; and the regulations
of the Secretary or the Director of the Bureau of Mines in effect
on the operative date of this title relating to the requirements
for investigation, testing, approval, certification, and acceptance
of such equipment as permissible shall continue in effect until
modified or superseded by the Secretary, except that the Secretary
shall provide procedures, including, where feasible, testing,
approval, certification, and acceptance in the field by an
authorized representative of the Secretary, to facilitate compliance by an operator with the requirements of section 305(a) of
this title within the periods prescribed therein; (Emphasis added).
As previously discussed, the judge apparently invalidated the
standard based on his conclusion that in promulgating the cabs and
cano.pies standard the Secretary failed to adopt specifications pertaining to the design, construction and installation of canopies and,
therefore, failed to comply with the underscored provisions of this
section. In doing so, we believe the judge erred.
Although section 318(i)'s definition of permissible electric face
equipment includes equipment whose non-electric features "are designed
and constructed, in accordance with the specifications of the Secretary,
to prevent, to the greatest extent possible, other accidents in the use
of such equipment", our examination of the legislative history has
turned up no explanation as to the meaning or impact of that clause.
Instead, as is clear from the summary set forth above, all of the
discussion in the legislative history is directed at the electrical
features of permissible equipment and the concern for preventing ignitions and explosions. Since nowhere in the legislative history is the
meaning or purpose of the "other accidents" phrase specifically or
impliedly discussed, we believe it is appropriate to view it simply as
a provision that provides the Secretary with the authority to also
develop permissible design and construction specifications for the nonelectric features of electrical equipment. Thus, if particular specifications for cabs or canopies for electric face equipment were developed
by the Secretary, he co~ld make such specifications mandatory components
of permissible equipment.

140?

Furthermore, the legislative history makes clear that the provision
in section 318(i) regarding the continuance of the Bureau of Mine regulations and the need for development of further procedures by the SeGr~tary
was directed at maintaining the permissibility requirements for electrical
equipment then in effect (Bureau of Mines Schedule 2G, 30 CFR Part 18,
subpart A through D), and effectuating the expressed congressional
desire that further procedures be established for facilitating compliance
with the permissibility requirements by small operators. The Secretary
accomplished the latter by adding a new subpart E to Part 18, "Field
Approval of Electrically Operated Mining Equipment". See Legis. Hist.
at 195; 35 Fed. Reg. 19790; and 36 Fed. Reg. 7007.
Thus, we believe that the judge read section 318(i) too broadly in
concluding that the Secretary was required to proceed under that section
in promulgating a cabs and canopies standard. Section 318(i) should not
be read to preclude the Secretary's use of other available statutory
options for the promulgation of safety standards. In our view, the
Secretary acted properly procedurally in availing himself of the option
to improve the statutory cabs and canopies standard (section 317(j))
under the authority of section lOl(a) of the Act. (Secretary may
develop, promulgate and revise improved mandatory safety standards).
The judge's decision further suggests, however, that in promulgating the standard the Secretary violated one of the substantive
mandates of the statute, i.e., section lOl(b)'s mandate that no improved
mandatory standard shall reduce the protection afforded miners below
that provided by any mandatory health and safety standard. This conclusion of the judge appears to be premised on two inte~related bases.
First, because the judge believed the Secretary was required to proceed
under section 318(i) in promulgating the improved standard, in his view
the Secretary's failure to set forth specifications and certification
procedures for cabs and canopies necessarily diminishes the level of
safety provided for in the statute. In view of our conclusion that the
Secretary was not required to proceed under 318(i) in adopting an
improved cabs and canopies standard, this ground for invalidating the
standard must be rejected.
Second, it also appears that the judge based his finding of a
reduced level of protection, at least in part, upon more specific
grounds for finding that compliance with the improved standard causes a
diminution of safety. In various parts of his memorandum opinion, the
judge refers to cases.involving petitions for modification of the
application of the cabs and canopies standard, and statements by the
Secretary and his agents made in extending and suspending the application of the standard in various mining heights. As discussed below,
we believe each of these grounds is an inadequate basis for invalidating
the standard.
The judge cites several petition for modification decisions and
notes that the "[t]estimony in modification cases as to the burdens
placed upon the operators and the hazards to which miners are exposed is
voluminous." We conclude that there is no basis in the record for
concluding that 30 CFR §75.1710-1 has reduced the protection afforded

miners. Each of the modification cases cited in the judge's decision
contains findings, based upon testimony of record, that enforcement of
30 CFR 75;1710-l(a) as to certain pieces of equipment will, at various
specified heights, diminish the safety of th~ miners to some degree.
The issue in such petition for modification cases is whether the
standards as applied at the mines involved would result in a diminution
of safety to the miners. Section 30l(c) of the 1969 Coal Act; section
lOl(c) of the 1977 Mine Act. This issue is far different fro~ one
requiring resolution of the broader question of whether an improved
mandatory standard redue~s the level of protection afforded miners
generally,and in all applications,below that provided by a mandatory
statutory standard. It is this more general issue that would have to be
resolved before a standard could be declared invalid because it reduces
protection below that provided by a mandatory standard. Because the
cited modification cases do not involve or resolve the issue of the
standard's general effect on existing levels of safety, they provide no
support for the judge's action in striking down the standard in the
present case.
Nor do we believe the judge properly relied on statements made by
the Secretary and his agents in extending and suspending the standard's
requirements in certain mining heights. In first extending the effective
date for compliance in mining heights of less than 30 inches, the
Secretary stated:
(I]n lower mining heights, particularly those below 30 inches,
certain human engineering problems have not been fully solved.
While these problems vary depending upon the particular mining
equipment, they include impaired operator vision, and operator
cramping and fatigue. Because of these unsolved engineering
problems the Secretary has determined that certain dates should be
extended on and after which coal mines having specific mining
heights must install canopies or cabs. This action is considered
necessary in order to permit development of additional 'technology
on canopy or cab design, in conjunction with accomplishing equipment design changes to adapt canopies or cabs.
41 Fed. Reg. 23200 (June 9, 1976).
Later, in a notice published on July 7, 1977, the Secretary
reviewed the status of compliance with the standard, and concluded that
"even though existing technology might be applicable to some
equipment used in mining heights below 30 inches ... , substantial
amounts of existing equipment could not be retrofitted and brought
into compliance at this time •... To meet and correct this situation
MESA is developing specifications for cab and canopy compartment
coniiguration for new mining equipment pursuant to section 318(i)
[of the 1969 Act]. These regulations and specifications, when
completed, will be processed and promulgated in accordance with
section 101 of the Act."
42 Fed. Reg. 34877. Accordingly, compliance with the cabs and canopies
standard was suspended in mining heights less than 30 inches.

We believe the judge read these statements too broadly. They do
not show, contrary to the judge's suggestion, that the standard has
generally reduced the level of protection afforded miners. Rather, the
statements made in extending and suspending the.dates for compliance in
certain mining heights--heights lower than those involved in the present
case--evidence a recognition of certain problems in lower mining heights
as well as a recognition of the documented benefits att.ained by the
standard in mining heights above 30 inches. ~ 42 Fed. Reg. 34876-77.
Therefore, it is our conclusion .that, on the basis of the record in this
case, the judge did not properly find that 30 CFR §75.1710-l(a) reduced
the level of protection afforded by the stabutory mandatory standard and
thus was void because it contravened section lOl(b).
In his decision the judge also appears to have found that the
standard is invalid because of its "technology forcing" nature. The
judge stated:
the Federal Coal Mine Health and Safety Act of 1969
and its successor place an affirmative obligation upon
the Secretary to conduct the research necessary to ensure
that the standards he promulgates enhance, rather than
decrease, the level of protection afforded the miners.
Like the Occupational Safety and Health Act, the 1969
and 1977 Mine Safety Acts do not permit the Secretary
to place an affirmative duty on each operator to research
and develop new technology •.•• Thus, the regulation
at issue which requires each operator to conduct such
research and development--and thereby places miners
at risk--is beyond the authority of the Secretary to
promulgate and must be deemed invalid and unenforceable.
This rationale appears to be interwoven with his conclusion, rejected
above, that the Secretary was required to develop specifications under
section 318(i).
The record in the present case does not support the judge's
suggestion that the Secretary did not properly follow the directive of
section lOl(c) in promulgating the cab and canopy standard. 7/ The
preamble to the adoption of the standard at 37 Fed. Reg. 206S9 (October
3, 1972), reflects that the statute's notice and comment rulemaking
procedures were followed in promulgating the standard. A proposed rule
was published (36 Fed. Reg. 5244 (March 18, 1971)), objections were
filed, and an evidentiary hearing was held. On the basis of the rulemaking record the Secretary concluded:

J_/

Section lOl(c) of the 1969 Coal Act in relevant part provided:
[D]evelopment and revision of mandatory safety standards shall
be based upon research, demonstrations, experiments, and such
other information as may be appropriate. In addition to the
attainment of the highest degree of safety protection for miners,
other considerations shall be the latest scientific data in the
field, the technical feasibility of the standards, and experience
gained under this and other safety statutes.

14l0

(5) Practical technology is available to design and construct a
substant.ial canopy or cab for installatio:n on self-propelled electric face equipment of sufficient strength to protect the equipment
operator from a non-massive roof fall.
(6) Although practical technology is available to design and
construct a substantial canopy or cab for installation on selfpropelled electric-face equipment of sufficient strength to protect
the equipment operator from a nonmassive roof fall, it has been
shown that in mining heights less than 72 inches, additional
research and study is necessary to solve human engineering problems
such as reduction of visibility and cramping of the equipment
operator. Such research and study is currently being undertaken on
behalf of the Bureau of Mines and results will be available in
calendar year 1973. Depending upon the results of such research
and study, as well as experience gained in the course of enforcement of the Federal Coal Mine Health and Safety Act of 1969 and
other pertinent statutes, the timetables, based on mining heights,
for the installation of canopies or cabs on self-propelled electricface equipment, contained in §75.1710-l(a), (2), (3), (4), (5), and
(6), may be shortened or lengthened.
(7) Observation of self-propelled electric-face equipment presently in use (including machinery presently equipped with canopies
or cabs) shows that practical technology is available to retrofit
existing self-propelled electric-face equipment with substantially
constructed canopies or cabs.
(8) Manufacturers of new self-propelled electric-face equipment
need the same amount of ti~e to design and install substantially
constructed canopies or cabs on such equipment as do coal mine
operators to design and install canopies or cabs on equipment
presently in use.
37 Fed. Reg. 20689
On the basis of these findings, the Secretary adopted 30 CFR
§75.1710-1 requiring cabs and canopies, establishing a staggered schedule for compliance in descending mining heights, and specifying certain
criteria for the construction of such cabs and canopies. In regard to
the latter, the standard provides in part:
For the purposes of this section, a canopy or cab will be considered to be substantially constructed if a registered engineer
certifies that such canopy or cab has the minimum structural
capacity to support elastically: (1) a dead weight load of 18,000
pounds, or (2) 15 p.s.i. distributed uniformly over the plan view
area of the structure, whichever is lesser.
30 CFR §75.1710-l(d).
Thus, as adopted the standard combines specification and performance
criteria, i.e., it specifies the type of protection required (cabs or
canopies) and specifies minimum support specifications, but it leaves to
the operator or manufacturers the duty to determine precisely how such
performance can be achieved on each particular type of equipment used.

Certainly, if the judge suggests that the Secretary is without authority
to adopt performance standards under the Act, this suggestion must be
rejected.. We find no provision in the Act prohibiting the use of performance standards. Indeed, performance standards are recognized as
being a valuable and legitimate means of regulation. As has been stated:
Performance standards are generally to be pref erred over those
w~ich contain specific requirements, as they give employers
latitude in selecting a means of compliance which is best suited to
their operation.
Diebold, Inc., 3" BNA OSHC 1897, 1900 (1976)(0SHRC), rev'd on other
grounds, 585 F.2d 1327 (6th Cir. 1978). Thus, simply because the
standard may leave the specific means for achieving compliance up to an
operator, does not mean that the Secretary has impermissibly shifted the
burden of research to an operator. To the contrary, the findings
accompanying the adoption of the standard shows that sufficient
practical technology existed warranting adoption of the standard.
The judge relied heavily upon American Iron and Steel Institute v.
OSHA, 577 F .2d 825 (3d Cir. 1978), to support his conclusion. that "the
1969 and 1971 Mine Safety Acts do not permit the Secretary to place an
affirmative duty on each operator to research and develop new technology."
The judge again appears to have painted with too broad a brush. The
Court in American Iron and Steel was interpreting an OSHA standard that
combined specification and performance elements in requiring compliance
with a specified coke oven emissions exposure limit, and, if after
implementation of all engineering and work practice controls compliance
was not achieved, mandated that "the employer ••. research, develop and
implement engineering and work practice controls necessary to reduce
exposure." 29 CFR·§l910.1024(f)(l)(ii)(b). The Court found the statute
did not allow the Secretary to place an affirmative duty upon an
employer to research and develop new technology. 577 F.2d at 838.
There is, however, no affirmative duty for research and development
placed upon an operi'ltor in the cabs and canop·ies standard.
Moreover, the Court found the performance requirements of the
standard there challenged to be properly promulgated, stating:
As we have construed the statute, the Secretary can impose
a standard which requires an operator to implement technology
"looming on today's horizon," and is not limited to issuing
a standard solely based upon technology that is fully developed
today.
In the present case, the judge found that "canopy technology looms on
some future horizon, not today's." This finding, however, is supported
by a reference to the suspension of the can~py requirements in heights
30 inches or under, 42 Fed. Reg. 34876, and to decisions granting
petitions for modification. The judge ignored the parts of the canopy
suspension notice relevant to this case, i.e., the finding of existing
practical technology in mining heights above 30 inches. In the notice
suspending the standard under 30 inches the Secretary stated:

The•results of the compliance study indicate that con~
siderable progress has been made in mee'ting the requirements of ·the standards, except in mining heights less
than 30 inches. Of 12,910 pieces of equipment reported
to be affected by the requirements in mining heights of
36 inches and above (actual height from bottom to top of
48 inches or more).9,631 pieces of equipment (approximately 75 percent) were in compliance with the standards.
In mining heights of 30 inches or more, but·less than
36 inches (actual height from bottom to top of 42 inches,
but less than 48 inches) 581 of 2,137 pieces of equipment required.to meet the standards were reported to be
in compliance (approximately 27 percent). Compliance
in mines with mining heights below 30 inches (actual
height from bottom to top of less than 42 inches) was
negligible.
This study also revealed that cabs or canopies continue
to have a tremendous impact on the reduction of injuries
or fatalities involving operators of self-propelled
electric face equipment, including shuttle cars. Reports
indicate that from 1974 through 1976 at least 111 equipment operators have been saved from certain death or
serious injury because a cab or canopy protected the
operator from falls of roof, face, or rib. Sixty of these
"saves" occurred during 1976. Moreover, an analysis of
haulage fatalities indicates that the number of equipment operators killed due to being pinned, squeezed, or
crushed against the roof, rib, or other equipment, and
dislodged posts have also been significantly reduced.
42 Fed. Reg. 34877. We believe this finding shows that an appropriate
level of practical cab and canopy technology in fact existed. Therefore, we conclude that the record does not support the judge's
finding that the general performance standard adopted by the Secretary
places an illegal burden on mine operators.
Each of the·grounds relied upon by the judge have failed; his
conclusion that 30 CFR §75.1710-l(a) is null, void and unenforceable
is reversed.
III.

Apart from his finding that the standard was invalid, the judge's
dismissal of the penalty petition was also based o~ a finding that
"on the dates the aforesaid notice and citation issued compliance
with .•• 30 CFR §75.1710-l(a) was impossible without diminishing the
safety of miners •.•• " The judge made this finding prior to hearing
or stipulation of facts. The only relevant materials in the record
when this finding was made were the notice and citation, Sewell's
response denying the violations, and the Secretary's motion to approve
settlement.

Regarding the notice of violation pertaining to the roof drill, the
motion stat.ed:
At the time the Notice was issued, the technology
to abate the citation was in an experimental stage.
Further, in some instances the use of canopies on
Galis drills had caused injuries to employees performing tranuning operations. Petitioner recognized
the difficulties Respondent was experiencing in
attempting to abate the violat.ion and extended the
abatement period on three occasions subsequent to
the Notice~ Abatement finally was achieved by abandonment of the cited ••. Section •.••
Accordingly, although a violation of the cited
. standard existed,. only a nominal penalty for the
violation would be appropriate.
As to the citation concerning the shuttle car, the motion stated:
At the time of the inspection, no cab or canopy
was connnercially avaiiable for Respondent's use
on a shuttle car working in 43-inch high coal.
Nevertheless, Respondent was able to provide a
shuttle car to work in the cited area which had
been specially equipped with a canopy. Respondent
has a program to equip all of its underground
equipment with cabs or canopies wherever it is
possible to do so. In light of Respondent's good
faith in attempting to comply with the cited .
technology forcing standard, Petitioner moves for
approval of the $25.00 penalty ••. , to which the
parties have agreed. (Emphasis added.)
Thus, although the settlement agreement reflects that difficulties were
encountered by Sewell in attempting to generally comply with 30 CFR
75.1710-l(a), the agreement falls short of stating that compliance in
the specific instances at issue here was not possible without diminishing the safety of miners. In fact, with regard to the second citation
the settlement agreement states that Sewell "was able to provide a
shuttle car to work in the cited area which had been specially equipped
with a canopy." The judge's finding that safe compliance was not
possible appears to be directly contrary to this statement.
The judge's finding was based in part on a decision of the Administrator for Coal Mine Safety and Health in a petition for modification
case filed by Sewell under section 30l(c) of the 1969 Coal Act. Sewell
Coal Co., No. M 76-131, April 27, 1979. In that proceeding, the
Administrator granted in part and denied in part a petition for modification of the application of 30 CFR §75.1710-l(a) to numerous pieces of
electric face equipment in several of Sewell's mines, including the mine
in which the violations at issue here arose. The judge's decision provides no clear discussion of the interrelationship between the factual

1414

matters at issue in this enforcement proceeding and those at issue in
the modification case, nor is the legal effect that the grant of a
modification petition has on a pending enforcement proceeding discussed.
See our decision in Penn Allegh Coal Co., PITT 78-97-P, issued this
date. We note that in the present case, unlike the situation before us
in Penn Allegh, a petition for modification was filed prior to the
issuance of the notice and citation. Id. at n.10.
In view of the fact that our decision in Penn Allegh discusses for
the first time the relationship between enforcement proceedings and
modification proceedings, and because the parties had no opportunity
prior to the judge's order of dismissal to present arguments addressing
this issue in the context of the facts of this case, a remand for further
proceedings is necessary.
Accordingly, the judge's decision is reversed and the case remanded
for further proceedings consistent with this opinion.

Commissioner

,I

Manian/Pearlman Nease, Commissioner

l

I

,e-

A -t ,. .

. : .t \.)

Distributi.on
Cynthia L. Attwood
Michael A. McCord
Leslie J. Canfield
Office of the Solicitor
U.S. Department of Labor
4015 Wils:on Boulevard
Arlington, Virginia
22203
Etetcher A. Cooke
The Pittson Coal Co. Group
Sewell Coal Company
Lebanon, Virginia· 24266
Administrative Law Judge Joseph B. Kennedy
Office of Administrative Law Judges
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike
10th Floor•Skyline C~nter #2
Falls Church, Virginia
22041

·'-· ·:i· l

r

'I

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

June 29 ~ 19.81
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEVA 79-360

KING KNOB COAL COMPANY, INC.
DECISION
This civil penalty case under the 1977 Mine Act, 30 U.S.C. §801
et seq. (Supp. III 1979), involves a conflict between a mandatory
safety and health standard and MSHA's purported interpretation of
that standard in its interim inspector's manual. For the reasons
set forth below, we hold that the standard controls over the manual
and affirm the administrative law judge's decision.
The essential.facts are undisputed. In January 1979, a fatal
accident occurred on the haulage road of a King Knob Coal Company
strip mine when an employee was struck by one of King Knob's threequarter ton pickup trucks being driven in reverse. The pickup was
used in King Knob's mining operations for transportation purposes.
The pickup was not equipped with a backup alarm and as a result King
Knob was cited for violating 30 CFR §77.410, which provides:
Mobile equipment; automatic warning devices.
Mobile equipment, such as trucks, forklifts,
front-end loaders, tractors and graders, shall be
equipped with an adequate automatic warning device
which shall give an audible alarm when such equipment is put in reverse.
The judge held that the plain language of §77.410 includes ~ick
ups. within the class of regulated vehicles and concluded that-"[s]ince
King Knob concedes that the subject pickup truck did not have the
specified warning device it is apparent that the violation is proven
as charged." 2 FMSHRC 1679, 1680 (1980).
The judge rejected King Knob's liability defense that it was
entitled to rely on an explanation of §77.410 contained in the 1978
MSHA Interim Mine Inspection Manual. The Manual is an informally
promulgated handbook containing "guidelines" to aid inspectors in
enforcement of the Mine Act. The guideline explaining §77.410

81-6-12

excepts pickups from the warning device requirement provided that
their rear views are "not obstructed." 1/ The judge classified
this reliance.argument as "essentially one of equitable estoppel"
and held that estoppel was ·inapplicable.to the federal government in
the discharge of "sovereign," as opposed to "proprietary," functions.
2 FMSHRC at 1680. He found the enforcement of mine safety standards
"a unique governmental function for the benefit of the public" and
concluded that equitable estoppel could not "be successfully invoked
as a defense to violations of the Act and its implementing regulations."
Id. However, in determining the appropriate penalty the judge considered
the reliance effect of the Manual's exception. Based on his conclusion
that the pickup's rear view was unobstructed, he found that "King Knob
could have reasonably believed that it was in compliance with MSHA's
policy excepting pickup trucks from the backup '.alarm standard where
the operator's view to the rear is not obstructed." Id. at 1682.
Therefore, he held that King Knob was not negligent in--failing to
have a backup alarm on the truck and assessed a nominal penalty
of $10. Id.
We first consider the liability issues without reference to the
Manual. King Knob contends that §77.410 refers only to heavy off~road
vehicles and not to light-weight highway vehicles. King Knob argues
that because "loaders," "tractors," and "graders"--other enumerated
kinds of "mobile equipment"--(fre large vehicles, "trucks" must similarly
refer to large off-road trucks commonly used for hauling heavy 1oads at
surface.mines. King Knob bolsters this argument by noting that where
the term "mobile equipment" appears in other sections in the subpart
containing §77.410 (Subpart E, "Safeguards for mechanical equipment"),
large vehicles are contemplated.
We do not agree. "Trucks" are expressly mentioned as one kind of
regulated "mobile equipment." "Truck" is a generic term and, of course,
pickups are a familiar type of light truck. Since §77.410 does not

1_/

The Manual provides:
POLICY

Any vehicle being operated on the mine property that is
capable of going in reverse shall be equipped with an automatic
warning device which shall give an audible alarm when such equipment starts moving in a reverse direction, and remain in operation
during the entire reverse movement.
The warning device required by this section need not be
provided for automobiles, jeeps, pickup trucks, and similar
vehicles, where the operator's view directly behind the vehicle
is not obstructed. Service vehicles making visits to surface mines
or surface work areas of underground mines are not required to be
equipped with such warning device. (Emphasis added).
[Interim Mine Inspection and Investigation Manual, Ch. III, p. 205
(March 1978)].
A virtually identical provision was included in a predecessor
manual, MESA's 1974 Surface Coal Mine Inspection Manual.

1418

expressly differentiate among various types of trucks subject to coverage, its plain language extends to pickups. This conclusion is reinforced by the breadth of §77.410's central term, "mobile equipment." In
Lucas Coal Company v. IBMOA, 522 F.2d 581, 584-585 (3rd Cir. 1975), the
court treated "mobile equipment" as an extensive term encompassing
several different vehicles used in a mining operation, specifically
bulldozers. We concur in the court's view that "[t)he five examples set
forth in §77.410 ••• preceded by the words 'such as,' are plainly not
all-inclusive as to the section's coverage." 522 F.2d at 585.
Further, the _obvious purpose of §77. 410 is to protect miners from
vehicles of various size moving in reverse. 2/ The standard is premised
on the general recognition that a driver's rear view is ordinarily not
as good, and hence as safe, as the forward view. Even if their role at
a mine is primarily auxiliary, three-quarter ton pickups are nevertheless medium-sized vehicles whose relative speed compared with heavier
vehicles constitutes a hazard in the busy mine setting. This clear
danger as well as the facially broad reach of both "trucks" and "mobile
equipment," lead us to conclude that recognizing the exception for which
King Knob contends would constitute amendment rather than interpretation
of the standard. Certainly, if the standard's drafters had intended to
except light trucks from the overall class of "trucks," they could
easily have written the standard to reflect the exception. The answer
to King Knob's reliance on other references to mobile equipment in
subpart E is that subpart E addresses diverse safety concerns. The
various sections within subpart E deal with different problem areas,
~th each of these areas requiring varying degrees of coverage.
Apart
from the Manual, therefore, King Knob's three-quarter ton pickup truck
used in mining operations was "mobile equipment" within the meaning of
§77.410; since King Knob conceded that the pickup lacked a backup alarm,
a finding of violation is dictated unless the effect of the Manual
provisions compels a different result.
The MSHA Manual's pickup exception injects two issues into what
would otherwise be a straightforward analysis of §77.410's coverage:
whether we are required to read §77.410 as if the pickup exception were
written into it and, even if we are not, whether the existence of the
Manual exception estops the government from prosecuting this case.

·2/
We note that the standard's mention of "forklifts," which are
normally small or medium-sized, indicates that the class of covered
vehicles is not exclusively limited to the very large or very heavy.

141B

Regarding the Manual's general legal status, we have previously
indicated that the Manual's "instructions are not officially promulgated
and do not prescribe rules of law binding upon [this Commission]."
Old Ben·Coal Company, 2 FMSHRC 2806, 2809 (1980). In general, the
express language of a statute or regulation "unquestionably controls"
over material like a field manual. See H.B. Zachry v. OSHRC, 638 F.2d
812, 817 (5th Cir. 1981). We find the OSHRC's analogous treatment of a
similar OSHA manual generally applicable: "the guidelines provided by
the manual are plainly for internal application to promote efficiency
and not to create an administrative straightjacket [;they] do not have
the force and effect of law, nor do they accord important procedural or
substantive rights to individuals." FMC Corporation, 5 OSHC 1707, 1710
(1971). This do.es not mean that the Manual's specific contents can
never be accorded significance in appropriate situations. Cases may
arise where the Manual or a similar MSHA document reflects a genuine
interpretation or general statement of policy whose soundness commends
deference and therefore
results
in our according it legal effect. 3/
.
'
This case, however, does not present that situation.

-

We cannot view the Manual commentary on §77.410 as a genuine
interpretation or general policy statement; rather, it is clearly an
attempted mo~ification of the standard's requirements. The commentary
contains an "obstructed view" and pickup exception not even remotely
alluded to in the regulation's language. Indeed, as we concluded above,
a pickup exception is inconsistent with the standard's broad language.
Section lOl(a) of the 1977 Mine Act (30 U.S.C. §8ll(a)) requires all
rules concerning mandatory health or safety standards to be promulgated
in accordance with §553 of the APA (5 U.S.C. §553). Further, §10l(a)(2)
requires the Secretary to publish in the Federal Register any "proposed rule promulgating, modifying, or revoking a mandatory health

3/
An agency interpretation is a statement of what the agency thinks a
statute or regulation means. Chamber of Commerce of U.S. v. OSHA, 636
F.2d 464, 469 (D.C. Cir. 1980). General statements of policy are
"'statements. issued by an agency to advise the public of the manner in
which tpe agency proposes to exercise adiscretionary function.'" Amer.
Bus Ass'n v. United States, 627 F.2d 525, 529 (D.C. Cir. 1980), quoting
Attorney General's Manual on the Administrative Procedure Act, 30 n.3
(1947). Interpretations and general policy statements are distinct from
ordinary "legislative" regulations, are excepted from the APA's notice
and comment procedures (infra), and, in general, lack the force and
effect of law. Chrysler Corp. v. Brown, 441 U.S. 281, 301-303 & n.
31 (1978). Although a reviewing body is not bound by an interpretation
or general policy statement, it may choose to defer to and apply such
pronouncements, thereby endowing them with a status that equals or
approximates the force and effect of law. Agency expertise, the soundness of the pronouncement in question, and the formality with which
the matter was promulgated are all factors which bear on deference.
We note that the Manual is a relatively informal compilation not
published in the Federal Register, and those factors weigh against
deference.

l ~ •) ( J
...l '~;:;.,,

o~ safety standard" _and to permit· public comment on the propo~ed
regulation· (emphasis added). Section 553 of the APA requires that to
the extent a· ·rule is more than an interpretation or general statement of
policy, it is subject to that Act's notice and comment requirements.
The Manual's attempted modification of §77.410 was not promulgated in
accordance with these requirements. Therefore, the Manual's provisions
on §77.410 lack the force and effect of law and §77.410 stands as written.
See Chamber of Commerce of U.S. v. OSHA, 636 F.2d at "468-471; Brown Express,
Inc. v. United States, 607 F.2d 695, 700-701 (5th Cir. 1979); Firestone
synthetic Rubber & Latex Co. v. Marshall, 507 F. Supp. 1330, 1334-1339
(E.D. Tex. 1981).

This holding means that we will apply §77.410 as construed above
without reference to the Manual. However, this disposition does not
completely resolve the liability issue in this cas·e. Even i f the
Manual's pickup and obstructed view language has no legal effect, King
Knob argues that the Secretary is estopped from finding a violation
because King Knob was equitably entitled to rely on the "pickup
exception.".!!_/
King Knob's argument has some force.
invites trust by stating in part that:

The Manual's Introduction

The Manual is also intended to acquaint the mining
industry, State inspection agencies, Federal agencies
and other interested persons and organizations with
the administration of the Act and Regulations. [Id.
at vii.]
-There is no disclaimer in the Introduction warning an operator that the
Manual is not a source of law binding on the Secretary, the Commission,
or courts. Nevertheless, we cannot accept King Knob's position.·
The Supreme Court has held that equitable estoppel generally does
not apply against the federal government. Federal Crop Insurance Corp.
v. Merrill, 332 U.S. 380, 383-386 (1947); Utah Power & Light Co. v.
United States, 243 u;s. 389, 408-411 (1917). The Court has not expressly
overruled these opinions, although in recent years lower federal courts
have undermined the Merrill/Utah Power doctrine by permitting estoppel
against the government in some circumstances. See, for example, United
States v. Lazy F.C~ Ranch, 481 F.2d 985, 987-990 (9th Cir. 1973); United
States v. Georgia-Pacific Co., 421 F.2d 92, 95-103 (9th Cir. 1970).
Absent the Supreme Court's expressed approval of that decisional trend,
we think that fidelity to precedent requires us to deal.conservatively
with this area of the law. This restrained approach is buttressed by
the consideration that approving an estoppel defense would be inconsistent
4/
In connection with the estoppel issue, we find that substantial
evidence supports the judge's finding that the pickup's rear view was
unobstructed._ Thus, King Knob fits squarely within the Manual's purported exception. We reject the Secretary's argument on review that
the pickup's tailgate constituted an obstruction. Since all pickups
have tailgates, recognizing tailgates as "obstructions" would make the
Manual's commentary virtually meaningless.
t j •)
J.. -:?. '""'

J
.

with the liability without fault structure of the 1977 Mine Act. See
El Paso Rock Quarries, Inc., 3 FMSHRC 35, 38-39 (1981). Such a defense
is really a ·claim that although a violation occurred, the operator was
not to blame for it. Furthermore, under the 1977 Mine Act, an equitable
consideration, such as the confusion engendered by conflicting MSHA
pronouncements, can be appropriately weighed in determining the appropriate penalty (as the judge did here).
Even the decisional trend which. recognizes an estoppel defense
refuses to apply the defense "if the government's misconduct [does not]
threaten to work a serious injustice and if the public's interest would
••• be unduly damaged by the imposition of estoppel" (emphasis added).
United States v. Lazy F.C. Ranch, 481 F.2d at 969. In view of the
availability of penalty mitigation as an avenue of equitable relief, we
would not be persuaded that finding King Knob liable--the Manual notwi thstanding--would work such a "profound and unconscionable injury"
(Lazy F.C. Ranch, 481· F.2d at 989) that estoppel should be invoked.
Finally, the record is devoid of any showing that King Knob actually
relied on the Manual's exception, rather then merely being "entitled" to
rely on it. Courts have required that actual reliance be shown. See,
for example, United States v. Georgia-Pacific Co., 421 F.2d at 96-~
n. 4.
In sum, we find the Manual commentary to be without legal effect,
reject King Knob's estoppel arguments, and therefore affirm the judge's
liability findings on the basis of our construction of §77.410 above.
In reaching this result, we do not adopt the judge's "sovereign/proprietary"
governmental function distinction, which we deem unnecessary to resolution
of liability.
We agree with the judge's handling of the penalty issue. MSHA's
equivocal enforcement policy made it difficult and confusing for a
reasonable operator to know the true standard of care imposed by
§77.410, and, hence, whether it was in a state of violation or compliance. Even though King Knob did not show actual reliance on the
Manual, the proper negligence question is either what it actually knew,
or what it should (or could) have known, concerning the appropriate
standard of care. We think that the confusion caused by the Manual
interfered with King Knob's ability to ascertain the true standard of
care and therefore placed it in a position where it could have believed
it was in compliance. Penalizing King Knob for confusion caused by MSHA
strikes us as unfair and harsh. Under these circumstances, we agree
with the judge that King Knob was not negligent. We also find support
in United States v. American Greetings Corp., 168 F.2d 45, 50 (N.D. Ohio
1958), aff'd per curiam, 272 F.2d 945 (6th Cir. 1959). There, the Court
imposed liability despite estoppel claims, but reduced the penalty under
analogous circumstances of an agency's "misleading" a respondent.
We emphasize that our decision prospectively obviates future confusion surrounding the meaning and scope of §77.410. The decision will
also alert the public to the need for using the Manual, and similar

1422

materials, with caution. We also express the hope that this opinion
will encourage MSHA to use its Manual in a responsible manner. In our
view, such .materials should contain, at the least, a precautionary
statement warning users of their informality and non-binding nature. As
this case unfortunately demonstrates, less than careful dissemination of
such materials can cause enforcement and compliance confusion and, at
worst, can diminish the protection of the Act and implementing
regulations.
For the foregoing reasons,

~\~HU\
''R~oJ.YJ1HJ» 'lloa,u
Marian Pearll\!8-n Nease, Commissioner

Distribution
Duane Southern, Esq.
Rose, Southern & Padden
612 First National Bank Bldg.
Fairmont, W. Virginia 26554
Cynthia L. Attwood, Esq.
Ronald E. Meisburg, Esq.
Office of the Solicitor
U. S. Department of Labor
4015 Wilson Boulevard
Arlington, Virginia 22203
Administrative Law Judge Gary Melick
Office of the Administrative Law Judges
Federal Mine Safety & Health Review Commission
5203 Leesburg·Pike, 10th Floor
Building 2
Falls Church, Virginia 22041

·Administtative·Law Judge Decisions

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

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

v.

JUN 1 \98\

Civil Penalty Proceeding
Docket No. WEVA 81-270
A.O. No. 46-01454-03076V
Pursglove No. 15

CONSOLIDATION COAL CO.,
Respondent
DECISION AND ORDER
The parties move for approval of a settlement (at 90% of the amount
initially assessed) of a charge that on August 14, 1980, a federal mine
inspector observed an accumulation of approximately 24 tons of loose
coal in the number 2 and 4 entries of the 1 Right Section of the
Pursglove No. 15 Mine. Sometime prior to this the condition had been
noted by the section foreman, Michael Jackson, who took no corrective
action. The record does not show what action or inaction by the section
foreman or his superiors resulted in this excessive and dangerous accumulation
of combustibles.
What is clear is that this was a violation that resulted from a
·culpable indifference on the part of manage~ent to a reasonably
foreseeable and objectively ascertainable risk of·serious bodily harm
or death. Under existing law, this disregard for the safety of the
mine is automatically imputable to the operator. As this case shows,
enforcement would be seriously debilitated if this rule were changed so
as to immunize operators .from accountability for. serious violations on
a showing that the condition was attributable to an act of negligent
indifference by an individual rank-and-file miner or his supervisor.
Based on an independent evaluation and de novo review of the
circumstances, I find the proposed settlement is marginally acceptable.
Once again I must voice my concern that no disciplinary action was taken
against the individual or individuals responsible because management
apparently feels such action is counterproductive to other objectives.
Accordingly, it is ORDERED that the motion to approve settlement
be, and hereby is, GRANTED. It is FURTHER ORDERED that the operator
pay the amount of the settlement agreed upon, $900, on or before

Friday, June 19, and that subject to payment the captioned matter
be DISMISSED.

Distribution:
Jerry F. Palmer, Esq., Consolidation Coal Company, Consol Plaza, Pittsburgh, PA. 15241 (Certified Mail)
David Street, Esq., U.S. Department of Labor, Office of the Solicitor,
3535 Market St., Philadelphia, PA 19104 (Certified Mail)

1427

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

JUN 2 1981
UNITED MINE WORKERS OF AMERICA>

Complaint of Discharge>
Discrimination> or Interference

On behalf of:
Docket No. LAKE 81-55-D
NORMAN BEAVER>
Complainant

Powhatan No. 1 Mine

v.
NORTH AMERICAN COAL CORPORATION>
Respondent
DECISION
Appearances:

Joyce A. Hanula> Legal Assistant> United Mine Workers
of America, Washington> D.C., for the Complainant;
Todd D. Peterson, Esq.> Crowell & Moring, Washington,
D.C., for the Respondent.

Before:

Judge Cook

I.

Procedural Background

On December 3, 1980, the United Mine Workers of America (UMWA) filed
a discrimination complaint on behalf of Norman Beaver (Complainant) in the
above-captioned proceeding alleging that North American Coal Corporation
(Respondent) committed an act of discrimination in violation of section
105(c)(l) 1/ of·the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et seq. (Supp. III 1979) (1977 Mine Act). The complaint was timely
1/

Section 105(c)(l) of the 1977 Mine Act provides as follows:
"No person shall discharge or in any manner discriminate against or
cause to be discharged or cause discrimination against or otherwise interfere. with the exercise of the statutory rights of any miner, representative
of miners or applicant for employment in any coal or other mine subject to
this Act because such miner; representative of miners or applicant for
employment has filed or made a complaint under or related to this Act,
including a complaint notifying the operator or the operator's agent, or
t~e representative of the miners at the coal or other mine of an alleged
danger or safety or health violation in a coal or other mine, or because
such miner, representative of miners or applicant for employment is the
subject of medical evaluations and potential transfer under a standard
published pursuant to section 101 or because such miner> representative

>0

., .t •..

./;. ·~ "- (\

filed with the Federal Mine Safety and Health Review Commissi-on (Commission)
pursuant to se_ction 105(c) (3) ]j of the 1977 Mine Act following a determination by the Department of Labor's Mine Safety and Health Administration
(MSHA) that no violation of section 105(c)(l) had occurred. 3/ The complaint
alleged, inter alia, (1) tbat the Complainant was the walkaround representative of the miners on June 11, 13, 14, and 15, 1980; (2) that the Complainant, in his capacity as walkaround representative of the miners, accompanied
a Federal mine inspector during the course of four regular inspections conducted on June 11, 13, 14, and 15, 1980; (3) that the Respondent failed to
comply with the requirements of section 103(f) of the 1977 Mine Act by
fn. 1 (continued)
of miners or applicant for employment has instituted or caused to be
instituted any proceeding under or related to this Act or has testified or
is about to testify in any such proceeding, or because of the exercise by
such miner, representative of miners or applicant for employment on behalf
of himself or others of any statutory right afforded by this Act."
2/ Section 105(c)(3) of the 1977 Mine Act provides as follows:
"Within 90 days of the receipt of a complaint filed under paragraph (2),
the Secretary shall notify, in writing, the miner, applicant for employment,
or representative of miners of his determination whether a violation has
occurred. If the Secretary, upon investigation, determines that the provisions of this subsection have not been violated, the complainant shall have
the right, within 30 days of notice of the Secretary's determination, to
file an action in his own behalf before the Commission, charging discrimination or interference in violation of paragraph (1). The Commission shall
afford an opportunity for a hearing (in accordance with section 554 of
title 5, United States Code, but without regard to subsection (a)(3) of
such section), and thereafter shall issue an order, based upon findings of
fact, dismissing or sustaining the complainant's charges and, if the charges
are sustained, granting such relief as it deems appropriate, including, but
not limited to, an order requiring the rehiring or reinstatement of the
miner to his former position with back pay and interest or such remedy as
may be appropriate. Such order shall become final 30 days after its issuance. Whenever an order is'issued sustaining the complainant's charges
under this subsection, a sum equal to the aggregate amount of all costs and
expenses (including attorney's fees) as determined by the Commission to have
been reasonably incurred by the miner, applicant for employment or representative of miners for, or in connection with, the institution and prosecution
of such proceedings shall be assessed against the person committing such
violation. Proceedings under this section shall be expedited by the Secretary and the Commission. Any order issued bY the Commission under this paragraph shall be subject to judicial review in accordance with section 106.
Violations by any person of paragraph (1) shall be subject to the provisions
of sections 108 and llO(a)."
3/ On its face, the discrimination complaint states that it was filed pursuant to section 105(c)(2) of the 1977 Mine Act. The parties' March 4, 1981,
filing contains a stipulation which states that the complaint was filed pursuant to section 105(c)(2) of the 1977 Mine Act.

refusing to pay the Complainant for the time spent accompanying the Federal
mine inspector during the course of such regular inspections; (4) that such
failure to pay the Complainant was an act of discrimination in violation of
section 105(c)(l) of the 1977 Mine Act; and (5) that the Complainant suffered
damages in the amount of $306.08, representing 32 hours-of lost wages. 4/
The prayer for relief requested (1) the issuance of an order requiring the
Respondent to pay the Complainant the sum of $306.08, with interest, and
(2) such other relief as the Commission deems appropriate. The Respondent
filed an answer on January 5, 1981, alleging, a~ongst other things, that
the complaint fails to state a claim for which relief can be granted.
On January 13; 1981, a notice of hearing was issued scheduling the case
for hearing on the merits on March 3, 1981, in Washington, Pennsylvania. On
March 2, 1981, an order was issued granting a joint motion for continuance
filed by .the parties. The continuance was based on the parties' decision to
waive an evidentiary hearing and to file stipulations and to submit briefs
on the issue of whether an operator is required to pay a walkaround representative who accompanied a Federal mine inspector on regular insp.ections on
days he was not scheduled to work.
The parties filed a joint stipulation of facts on March 4, 1981. Both
parties filed briefs on April 10, 1981. The UMWA and the Respondent filed
reply briefs on April 24, 1981, and April 27, 1981, respectively.
II.

Issue

The general question presented is whether the complaint states a claim
for which relief can be granted. The specific question presented is whether
a mine operator is required to pay an employee who is a walkaround.representative of the miners for the time spent accompanying a Federal mine inspector
on a regular inspection on days when such·walkaround representative is not
scheduled to work, when another miner-employee who was scheduled to work at
such times could have accompanied the Federal mine inspector and would have
suffered no loss of pay.
fn. 3 (continued)
A comparison of sections 105(c)(2) and 105(c)(3) of the 1977 Mine Act
reveals that the UMWA could properly file this action before the Commission
only pursuant to section 105(c)(3). Section 105(c)(2) filings are made by
the Secretary of Labor.
The Respondent has not challenged this filing defect, and the tenor
of the stipulations indicates agreement between the parties that the case
is properly before the Commission. Accordingly, the defect is viewed as
technical, and the complaint is deemed one properly filed under section
105(c)(3).
4/ The complaint alleges that the walkaround activities occurred in June of
1980. Thereafter, the parties stipulated that such activities occurred in
June of 1979. This discrepancy is considered immaterial, and is noted solely
to point out that the discrepancy exists.

1430

III.

Opinion and Findings of Fact
A.

Stipulation and Findings of Fact

The parties filed the following stipulation

on March 4, 1981:

1. This proceeding is governed by the Federal Mine
Safety and Health Act of 1977 ("the Act") and the standards
and regulations promulgated for the implementation thereof.
2. The Administrative Law Judge has jurisdiction over
this proceeding.
3.
Respondent is an "operator" as defined in Section
3(d) of the Act.
4. Norman Beaver was an employee and authorized UMWA
walkaround representative at North American's Powhatan No. 1
mine on June 13, 14 and 15, 1979.
5. On June 13, 14 and 15, 1979, the Powhatan No. 1
mine was working on an idle day basis.
6. On June 13, 14 and 15, 1979, Norman Beaver was not
scheduled to work, but accompanied a MSHA inspector on a
regular inspection.
7. Prior to accompanying the inspector, Mr. Beaver was
informed by North American that he would not be compensated
for accompanying the inspector because he was not scheduled
to •N"ork on those days. ·
8. Other UM\lA members did work at the mine on June 13,
14, 15, 1979. These employees could have accompanied the
MSHA inspector on his inspection.
9. North American did not compensate Norman Beaver for
the time spent accompanying a MSHA inspector on June 13, 14
and 15, 1979. The amount of compensation due Norman Beaver,
i f a violation of 103(f) and 105(c) is found, is $229.56.
10. Norman Beaver filed a complaint of discrimination
under Section 105(c) of the Act on July 25, 1979.
11. On November 10, 1980, Mr. Beaver received a lette~
from Joseph A. Lamonica, Acting Administrator for Coal Mine
Safety and Health. The letter informed Mr. Beaver that MSHA
had conducted an investigation of his complaint and that the
Secretary had determined that a violation of Section 105(c)
had not occurred.

1431

12. On December 3, 1980, the UMWA on behalf of Normari
Beaver filed a Discrimination Complaint pursuant to Section
105(c)(2) ·of the Act. [2/l
13. On January 7, 1981, the UMWA received
North American's Answer to the D~scrimination Complaint on
behalf of Norman Beaver.
B.

Opinion

The Complainant was an employee and authorized UMWA walkaround representative at the Respondent's Powhatan No. 1 Mine on Jurie 13, 14, and 15, 1979.
The mine was working on an idle day basis on those days~ The Complainant
was not scheduled to work on those 3 days, but accompanied a Federal mine
inspector on a regular inspection. Prior to accompanying the inspector, the
Complainant was informed by the Respondent that he would not be compensated
for accompanying the inspector because he was not scheduled to work on those
days. Other UMWA members did work at the mine on those 3 days, and could
have accompanied the Federal mine inspector on his inspection.
The Respondent did not compensate the Complainant for the time spent
accompanY.ing the Federal mine inspector on June 13, 14, and 15, 1979. The
Complainant is due compensation in the amount of $229.56, if a violation of
sections 103(f) and 105(c)(l) of the 1977 Mine Act is found to have occurred.
The question presented in this case is whether a mine operator is
required to pay a walkaround representative of the miners, who is also his
employee, for the time spent accompanying a Federal mine inspector on a
regular inspection on days when such walkaround representative is not scheduled to work, when another miner-employee who was scheduled to work at such
time could have accompanied the Federal mine inspector and would have suffered
no loss of pay. The UMWA maintains that the failure to pay the miners'
walkaround representative in such a case is a violation of section 105(c)(l)
of the 1977 Hine Act because it constitutes an interference with the statutory
right to participate in mine inspections accorded the miners' walkaround
representative under section 103(f) of the 1977 Mine Act. In support of its
position, the UMWA maintains that the Commission's decisions in Helen Mining
Company, 1 FMSHRC 1796, 1 BNA MSHC 2193, 1979 CCH OSHD par. 24,0~5 (1979),
and Kentland-Elkhorn Coal Corporation, 1 FMSHRC 1833, 1 BNA MSHC 2230, 1979
CCH OSHD par. 24 ,071 (1979), stand for the proposition "that miners are
entitled to compensation when they accompany a Federal inspector on regular
inspections" (UHWA's Brief, p. 4). The UMWA points out that in Magma Copper
Company, 1 FMSHRC 1948, 1 BNA MSHC 2227, 1979 CCH OSHD par. 24,075 (1979),
the Commission stated that:
Walkaround pay was designed to improve the thoroughness
of mine inspections and the level of miner safety consciousness. The first sentence of section 103(f) expressly states

27

Seen. 3, supra.

that the purpose of the right to accompany inspectors is to
aid the inspection. The Senate committee report on s. 717,
95th Cong.,· 1st Sess. (1977), the bill from which section
103(f)· is derived, explained that the purpose of the right to
accompany an inspector is to assist him in performing a "full"
inspection, and "enable miners to understand the safety and
health requirements of the Act and [thereby] enhance miner
safety and health awareness." s. Rep. No. 95-181, 95th Cong.,
1st Sess., at 28-29 (1977), reprinted in Senate Subcommittee
on Labor, Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Safety and Health Act
of 19.77, at 616-617 (1978) ["1977 Legis. Hist."]. ·The purpose
of the right to walkaround pay granted by section 103(f) is
also clear: to encourage miners to exercise their right to
accompany inspectors.
It was Congress' judgment that a failure to pay miners'
representatives to accompany inspectors would discourage
miners from exercising their walkaround rights, and that the
resulting lessening of participation would detract from the
thoroughness of the inspection and impair the safety and
health consciousness of miners. [Footnote omitted.]
1 FMSHRC at 1951-1952.

(UMWA's Brief, PP• 5-6.)

The UMWA fashions the following arguments from these dual propositions:
The representative of the miners plays an extremely
important role in the statutory scheme of the Act. He or she
is the conduit between the employees at the mine and the [Secretary of Labor's] authorized .representative. Such person
serves as the spearhead for the employees' concerns regarding
their health and safety. In Leslie Coal Mining Co. v. MSHA &
UMWA, 1 FMSHRC 2022 (1979), an operator denied an authorized
representative of the miners, who was not scheduled to work,
the right to accompany an inspector on a regular inspection.
Judge Steffey found a violation of 103(f) and stated at page 6
" •• ·• I believe that the company cannot interfere with the
person that the miners choose to accompany the inspectors.
As long as he is still an employee • • • and still one of the
people who is intended to accompany the inspectors, I believe
the company must let him do so • •
" Judge Steffey ~as convinced of the need tq maintain the integrity of the selection
process for the miners' walkaround representative. The Judge
also remarked on the importance of baving a specific person to
accompany inspectors. At page 8 of his decision, he stated:
But there does seem to be one aspect of
having the inspectors -- or rather having a

specific person or persons designated to accomp[a]ny the inspectors; because it appears to me
that the inspectors feel that if they get the
same person each time -- or a limited number of
persons -- to accompany them, that a process of
training can be instilled in these people who go
around with the inspectors, and the result is
there is gradu[a]lly built up a certain amount of
expertise in these representatives who accompany
them.
The result is they can better field complaints from the miners in general and can
coordinate the various inspections· by adding
knowledge to what has happened in the past. And
this, I think, is helpful for both the company
and the inspectors.
It is obviously advantageous to both Tthe Respondent]
and the miners to have [the Complainant] accompany the
inspector rather than pull an employee out of the mine who
just happened to be scheduled to work that day. Such person may not possess the expertise or experience that [the
Complainant] possesses. It would be unrealistic to expect
that individual to perform an effective watchdog role to
insure that MSHA conducts a thorough inspection~ Since the
person is not the one that has been selected in advance by
the miners to walkaround on the particular inspection there
is no assurance that the individual would have the confidence
of his fellow employees. The lack of such confidence could
seriously cut down on the complaints that are brought to
the Secretary's attention.
[The Respondent] was in no way prejudiced by [the
Complainant] accompanying the inspector. The alternative to
not paying an off-duty miner representative is to pay an
on-duty miner, withdrawing him from his scheduled work site.
Since the idle day work force is limited to the number of
workers needed to perform certain essential tasks it would
appear that taking somebody from their work site could be
very disruptive. There is no logic to this approach. Moreover, it permits the operator to play a role in the selection
of the miners' representative. By limiting walkaround pay to
employees who the operator has scheduled to perform idle day
work, the operator effectively restricts the pool of available
employee walkaround representatives. [The Complainant] was
the person the miners had selected to accompany the MSHA
inspector on this inspection. The miners should not be
deprived of their right to have the most effective representative accompany the inspector merely because that representative is not scheduled to work on a particular idle day.

1434

One of the surest ways to shatter confidence in the
miners' representative is to allow the operator to play a
role in the selection of who that representative will be.
Allowing the operator to manipulate the right to walkaround
pay may well result in undermining the effectiveness of the
entire role of a miners' walkaround representative.
(UMWA's Brief, pp. 7-9).
The Respondent maintains that the case presents a straightforward and
relatively simple issue which is answered by the explicit language of section 103(f) which states, in part, that "[s]uch representative of miners who
is also an employee of the operator shall suffer no loss of pay during the
period of his participation in the inspection made under this subsection."
Briefly stated; the Respondent's position is that since the Complainant was
not scheduled to work on the days when the regular inspection was conducted,
he suffered no loss of pay for the time spent accompanying the Federal mine
inspector and therefore is not· entitled to compensation under the walkaround
pay provision of section 103(f) of the 1977 Mine Act. The Respondent's
reasoning is set forth as follows:
[The language of the walkaround pay provision of section
103(f) of the 1977 Mine Act] indicates that Congress intended
to permit employees who were regularly scheduled to work to
participate in inspections without suffering any loss in'pay.
The section does not state that any miners' representative
must be compensated for participating in an inspection. If
Congress had intended that result, it could easily have
granted that right by clear and explicit language. Instead,
however, Congress chose to require only that a miners' representative must suffer no loss of pay; that is, if a miners'
representative is already at the mine and scheduled to work,
the operator may not deny his pay simply because he participated in an MSHA inspection.
By requiring only that a miners' representative suffer
no loss of pay, Congress indicated its intent that the walkaround right not be utilized to place an additional employee
on the operator's payroll. The language states Congress'
intent not to add another salary, but only to ensure that an
employee currently receiving his salary would not be penalized for his participation in the inspection.
Thus, the
meaning of Section 103(f) is simply that an employee must not
lose pay to which he otherwise.would have been entitled
simply because he chooses to participate in an MSHA
inspection.
When this statutory language is applied to [the Complainant's] complaint .the result is readily evident. Since
[the Complainant] was not scheduled to work during the week

J..i '1.4

3 e,lr

when the inspection occurred, he suffered no loss of pay as
a result of participating in the inspection. Therefore, [the
Respondent's] action was fully consistent with the provisions
of Section 103(f).
This conclusion is reinforced by the fact that other
UMWA personnel were scheduled to work during the week of the
ipspection and were available to participate as the miners'
representative. Since these ID1WA employees were working at
the mine, they would have continued to receive pay even if
they had participated in the inspection as the min~rs' representative. Thus, there was no reason for [the Complainant]
to be the miners' representative on the inspection. Other
miners' representatives could have participated in the
inspection without adding another individual to [the
Respondent's] payroll. [Emphasis in original.]
(Respondent's,Brief, pp. 4-5).
The UMWA's reply brief states, in part, that:
On its face the requirements [of the walkaround pay
provision of section 103(f) of the 1977 Mine Act] are quite
clear. If the representative of the miners is an employee,
then the operator cannot refuse to pay him at his normal
rate for the time spent participating in a regular
inspection].
In the instant case, [the Complainant] walked around
during what would have been his usual shift had the mine
been in regular production. He was an employee of the
operator and the person the miners selected to accompany
the MSHA inspector on his inspection.
[The Respondent's] interference with the exercise of [the
Complainant's] right to pay during a regular inspection is a
violation of [sections] 105(c)(l) and 103(f) of the Act.
The Respondent sets forth the following arguments in its reply brief:
In its initial brief the UMWA ignores the explicit
language of the Act, and instead focuses on imaginary
problems that are not raised by the facts of this case.
1. This case does not involve the issue whether [the
Respondent] may dictate who will participate as a miners'
representative on MSHA inspections. [The Respondent] made
no effort to dictate to the miners who could act as their
representative. The miners were completely free to select
whomever they wished to act as their representative during

the inspections, and [the Respondent] recognized that no
such representative could suffer a loss of pay. In fact,
[the Respondent] specifically permitted [the Complainant]
to participate in the.inspection himself. [This fact
distinguishes the instant case from Leslie Coal Mining
Company, 1 FMSHRC 2022 (1979), upon which the UMWA relies].
[The Respondent] simply decided that since [the Complainant]
suffered no loss of pay, that it would not pay him extra
compensation for participating in the inspection. This
decision, which is completely consistent with the language
of the Act, in no way infringed upon the miners' r~ght to
select their own representative.
2. There is no reason to stretch the language of the
Act to award extra ~ompensation to [the Complainant]. The
UMWA claims, without any supporting evidence whatsoever,
that it was essential for [the Complainant] to act as the
miners' representative and that it was therefore necessary
to provide him extra compensation in order to encourage his
participation. The Ul1WA brief is replete with unsupported
assertions that [the Complainant] is the only one who could
have acted effectively as the miners' representative. These
assertions are completely inconsistent with the facts as
stipulated by the parties, which indicate that other qualified
UMWA members were working at the mine and were available to
act as miners' representatives.
In fact, it is an extraordinarily rare situation wher,e
one person acts as the miners' representative for all MSHA
inspections. UMWA mine safety committees generally comprise
at least three people, and frequently many Ul1W'A members at a
particular mine will participate in inspections as miners'
representatives. In this case, there is no evidence that
[the Complainant] was the only qualified miners' representative or that·he participated in every inspection. There
is no evidence that it was necessary- for [the Complainant]
to participate in this particular inspection. In fact, the
stipulation indicates precisely the contrary: that other
UHWA members were scheduled for worK who could have participated as miners' representatives.
Moreover, the participation of different UMWA members
as miners' representatives enhances.rather than detracts
from the goals of the walkaround provision and the Act. As
the Ul:1WA itself admits, one of the principal purposes of the
provision is to enhance all of the miners' consciousness of
the various safety and health provisions of the Act. If only
one miner participated as a miners' representative, then the
benefits of miner participation would be limited to that one

miner. Thus, in many instances it is both necessary and in
complete accordance with the policies of the Act to have more
than one person act as the miners' representative.
The choice of whom to select is of course up to the
miners at a particular mine, and in this case [the.Respondent]
permitted the miners that choice. The only restriction is
that which is contained in the·Act itself, which states not
that any miners' representative is entitled to be compensated
for participating, but only that the representative shall
suffer no loss of pay as a result of participati_ng in the
inspection.
3. The legislative history fully supports the conclusion_ that Congress intended merely to ensure that miners
suffered no loss of pay for participating in an inspection
.and not that anyone who acted as a miners' representative
would receive compensation. * * *
For example, the Senate Report states that the reason
for requiring that a miner suffer no loss of pay was to avoid
a requirement that "would unfairly penalize the miner for
assisting the inspector in performing his duties." Subcommittee on Labor of the Senate Committee on Human Resources,
Committee Print, Legislative History of the Federal Mine
Safety and Health Act of 1977, 616-17 (1978). Thus, the
Senate Report indicates that Congress was simply seeking to
avoid penalizing a miner by making him lose pay that he
otherwise would have received simply because he participated
in an inspection during a time when he was scheduled to work.
Nothing in the legislative history or in the language of the
Act itself indicates that Congress intended that a person
who was not working at the mine be compensated for participation in an inspection.
4. The UMWA suggests that [the Respondent] would suffer
no harm if it were required to compensate miners' representatives even if they were not otherwise scheduled to work. The
UMWA clearly misses the point, since requiring compensation
for any miners' representative would in effect require [the
Respondent] to add another employee to its payroll. It is
[the Respondent's] prerogative to determine how many people
it wishes to employ. Although [the Respondent] recognizes
that it may not refuse to pay a member of its active work
force who participates in an MSHA inspection, it is not
required to put on its payroll someone who would not otherwise be receiving any pay. Congress specifically recognized
this right by limiting the walkaround pay right to those
who would otherwise have suffered a loss of pay, that is,
those who were otherwise scheduled for work. [Footnote 2
omitted.]

1438

For the reasons set forth below, I conclude that the Respondent's
refusal to pay the Complainant for the time spent accompanying the Federal
mine inspector on the June 13, 14, and 15, 1979, regular inspection was
not an interference with the exercise of statutory rights accorded the Complainant under section 103(f) of the 1977 Mine Act. Accordingly, no violation of section 105(c)(l) of the 1977 Mine Act occurred as a result of
such refusal. In reaching this conclusion, all arguments advanced by the
parties have been considered fully, and, except to the extent that they
are expressly or impliedly adopted herein, they are rejected as contrary
to the facts as stipulated, contrary to the law, or immaterial to the
decision in this case.
Section 105(c)(l) of the 1977 Mine Act provides, in part, that no
person shall in any manner discriminate against, or cause discrimination
against, or otherwise interfere with the exercise of the statutory rights
of any miner or representative of miners because of the exercise by such
miner or representative of miners of any statutory right afforded by the
1977 Mine Act. 6/ It is my opinion that a mine operator's refusal to provide the miners1 walkaround representative, who is also an employee of such
mine operator, with the pay to which he is entitled under the walkaround
pay provision of section 103(f) of the 1977 Mine Act, is an act of interference in the exercise of statutory rights accorded such representative by
section 103(f), and therefore actionable under section 105(c)(l). As noted
in the statute's legislative history: "The Committee intends that the scope
of the [activities protected by section 105(c)(l)] be broadly interpreted
by the Secretary, and intends it to include * * * the participation in mine
inspections under [section 103(f)]." S. Rep. No. 95-181, 95th Cong.,
1st Sess. (1977), reprinted in LEGISLATIVE HISTORY OF THE FEDERAL MINE
SAFETY AND HEALTH ACT OF 1977 at 623 (1978).
The question presented is whether the walkaround pay provision of section 103(f) requires the mine operator to provide the miners' walkaround
representative, who is also an employee of such mine operator, with pay for
the time spent accompanying Federal mine inspectors Qn regular inspections
which are conducted on days when such walkaround representative is not
scheduled to work, when another miner-employee who was scheduled to work at
such times could have accompanied the Federal mine inspector and would have
suffered no loss of pay. None of the Commission 1 s decisions on the subject
of walkaround pay address this issue.
The Commission has held that the right to walkaround pay accorded a
miners' representative under section 103(f) of the 1977 Mine Act is limited
to the time spent accompanying a Federal mine inspector during a "regular"
inspection conducted pursuant to section 103(a} of the 1977 Mine Act. Helen
Mining Company, 1 FMSHRC 1796,1 BNA MSHC 2193, 1979 CCH OSHD par. 24,045
(1979); Kentland-Elkhorn Coal Corporation, 1 FMSHRC 1833, 1 BNA MSHC 2230,
1979 CCH OSHD par. 24,071 (1979). The Commission has also held that when

E_/

The full text of sectioµ 105(c)(l) is set forth in n. 1, supra.

143B

an inspection of "the entire mine" conducted pursuant to section 103(a) is
divided ihto two or more inspection parties to simultaneously inspect different parts qf the mine, one miners' representative, who is also an employee
of the mine operator, in each inspection party is entitled to walkaround pay
under section 103(f) for the time spent accompanying a Federal mine inspector
who is engaged in such inspection. Magma Copper Companz, 1 FMSHRC 1948,
1 BNA MSHC 2227, 1979 CCH OSHD par. 24,075 (1979). In each of these three
cases decided by the Commission, the miners' walkaround representative was
scheduled to work on the days when the inspections were conducted.
Similarly, no decision by an Administrative Law Judge of this Commission
has been discovered which poses the question presented _herein. See, ~·.£·,
Jewell Ridge Coal Corporation, 2 FMSHRC 2578 (1980) (Steffey, J.); Secretary
of Labor ex rel. Scott v. Consolidation Coal Company, 2 FMSHRC 1056 (1980)
(Melick, J.); Alabama By-Products Corporation, 2 FMSHRC 467 (1980)
(Laurenson, J.); Leslie Coal Mining Company, 1 FMSHRC 2022 (1979)
(Steffey, J.).
The walkaround pay provision of section 103(f) requires only that the
walkaround representative of the miners "who is also an employee of the
operator shall suffer no loss in pay during the period of his participation
in the inspection* * *·" (Emphasis added.) The UMWA interprets this
language as requiring the mine operator to provide compensation to its
employee who is a walkaround representative of the miners whenever such
representative accompanies a Federal mine inspector on an inspection of the
entire mine conducted pursuant to section 103(a), regardless of whether or
not such representative at that time would otherwise be performing work for
the mine operator which would entitle him to a wage payment. In the UMWA's
view, the only germane considerations are (1) that the individual is the
person selected by the miners to act as their representative during inspections conducted pursuant to section 103(a), and (2) that the individual is
an employee of the mine operator. This interpretation distorts the plain
meaning of the carefully drafted language used by Congress. Congress
intended only that a representative suffer no loss in pay when his activities
as walkaround representative of the miners during inspections of the entire
mine conducted pursuant to section 103(a) require him to be absent from those
duties which he would otherwise perform for the mine operator, his employer.
The plain language of the walkaround pay provision disavows any intent to
create a right to compensation for a walkaround representative who is not
otherwise scheduled to work. The walkaround pay provision is designed to
encourage miner participation in inspections by providing an assurance that
their designated representative will suffer no loss in pay as a result of
participating in such inspections, i.e., that his participation in an inspection will place him in the same position with respect to his pay that he
would have occupied had he not participated in the inspection. It was not
intended to create a right to compensation where none otherwise existed.
The UMWA argues that denying the Complainant walkaround pay for his
activities on June 13, 14, and 15, 1979, permits the mine operator to play
a role in the selection of the miners' walkaround representative, and also

4
A

1(I

deprives the miners of their right to have the most effective representative accompany the Federal mine inspector merely bec.ause that representative is not scheduled to work on the-day of the inspection •. According
to the UMWA, allowing the mine operator to play a role in the selection
~rocess will surely shat~er the miners' confidence in tpeir representative,
and allowing the mine operator to manipulate the right to walkaround pay
may well result in undermining the effectiveness of the miners' walkaround
representative. ·
It is unnecessary to address these issues because they are well beyond
the facts of this case. There is no indication in the record, as stipulated,
that the Complainant's idle day ·status permitted the Respondent to directly
or indirectly participate in any manner in the process of selecting a walkaround representative. Additionally, there is no indication that the
Respondent manipulated the Complainant into an idle day status to discourage
his participation in the inspection. The UMWA's arguments must be reserved
for a case in which the facts properly raise such issues.
The facts of the instant case reveal that the Complainant was permitted
to participate in the June 13, 14, and 15, 1979, inspection notwithstanding
his idle day status, and that some other miner who was working at the mine
could have acted as the miners' walkaround representative on those 3 days
and received his full pay under section 103(f). In order to create the
kind of result which the UMWA prays for in this proceeding, it would be
necessary to amend section 103(f) of the 1977 Mine Act to so provide.
In view of the foregoing, I conclude that the Gomplainant was not
en'ti tled to walkaround pay under sec ti on 103( f) of the 1977 Mine Act for his
participation as walkaround representative of the miners during the June 13,
14, and 15, 1979, regular inspection of the Respondent's Powhatan No. 1 Mine.
The Respondent's refusal to pay the Complainant for the time so spent was·
not an interference with the exercise of rights accorded the Complainant
under section 103(f) of the 1977 Mine Act, and, accordingly, is not actionable under section 105(c)(l) of the 1977 Mine Act. The discrimination complaint will be dismissed.
IV.

Conclusions of Law
1.

The Administrative Law Judge h?s jurisdiction over this proceeding.

2. The Respondent is an "operator" as defined in section 3(d) of the
1977 Hine Act.
3. The Department of Labor's Mine Safety and Health Administration
conducted an investigation of the dispute which is the subject matter of
this proceeding and concluded that a violation of section lOS(c)(l) of the
1977 Mine Act had not occurred.
4. The Complainant received a written notification from the Department
of Labor's Mine Safety and Health Administration on December 10, 1980,

informing him of that agency's determination that no violation of section
105(c)(l) had occurred; and thereafter the Complainant timely filed this
action before. the Federal Mine Safety and Health Review Commission.
5. The Complainant was not entitled to walkaround pay under section
103(f) of the 1977 Mine Act for his participation as waikaround representative of the miners during the June 13, 14, and 15, 1979, regular inspections
of the Respondent's Powhatan No. 1 Mine.
6. The Respondent's refusal to pay the Compl_ainant for the time so
spent was not a violation of section 105(c)(l) of the 197l Mine A~t.
7. All of the conclusions of law set forth in Part III, supra, are
reaffirmed and incorporated herein.
ORDER
The discrimination complaint is DISMISSED.

Distribution:
Joyce A. Hanula, Legal Assistant, United Mine Workers of America,
900 15th Street, NW., Washington, DC 20005 (Certified Mail)
Todd D. Peterson, Esq., Crowell & Moring, 1100 Connecticut Avenue,
NW., Washington, DC 20036 (Certified Mail)
Special Investigation, Mine Safety and Health Administration, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Administrator for Metal and Nonmetal Mine Safety and Health, U.S.
Department of Labor
Administrator for Coal Mine Safety and Health, U.S. Department of Labor
Standard Distribution

144~!

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

JUN 2 1981

)

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

)
)

CIVIL PENALTY PROCEEDING

)

Petitioner,

)

DOCKET NO. WEST 79-397-M

)

v.

)

A/C NO. 05-03209-05001

)

RALPH FOSTER AND SONS;

)

MINE: ERDA C G27

)

Respondent.

)
)

~~~~~~~~~~~~~~~~~~~-

DECISION AFTER REMAND
On May 12, 1981, the Federal Mine Safety and Health Review Connnission
remanded the above case for the assessment of a penalty.
The following is a review of the criter.ia required to be examined in
the assessment of a penalty. 30 U.S.C. § 820(i). The parties stipulated to
the fact that at the time Citation No. 326566 was issued, Ralph Foster and
Sons had no history of violations of the Federal Mine Safety and Health
Act, 30 U.S.C. § 801 et seq. (the Act) (Tr. 22). Respondent is a very
small mine operator. CExhibit A attached to the pet it ion and Tr. 11).
The danger anticipated by the standard was likely to occur (Tr. 11,
Connnission Exhibit 1), and the resulting injury could be permanently
disabling. (Comm. Ex .. 1). The miners involVed immediately put on their
safety glasses after being informed of the violation by the inspector.
(Tr. 12).
The degree of negligence attributed to respondent by the Mine Safety
and Health Administration was based on an erroneous fact and should,
therefore, be re-assessed. The inspector's statement indicates that the
proprietor of the mine, Robert Foster, knew of the condition cited. This
conclusion was .based on the inspector's belief that Robert Foster was one
of the miners who was not wearing the safety glasses. (Comm. Exhibit 1).
However, at trial, the inspector testified that Robert Foster was not one
of the miners involved, and in fact, was not in the mine at the time. (Tr.
10, 11, 21). Mr. Foster confirmed the fact that at the time of the
violation he was working in another mine (Tr. 29). I find, therefore, that
there was no negligence on the part. of the mine operator involved in the
violation of the Act.

Having given due consideration to the necessary criteria, I assess a
penalty of $1';.oo. Respondent is directed pay this amount within 30 days
of the date·of this order.

Distribution:
Ann N. Noble, Esq., Office of the Solicitor, United States Department of
Labor,·1585 Federal Building, 1961 Stout Street, Denver, Colorado 80294
Mr. Rob.ert Foster, Ralph Foster and Sons, 2950 A 1/2 Road, Grand Junction,
Colorado 81501

FEDERAL 'MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W.. COLFAX. AVENUE. SUITE 400
DENVER, CpLO~ADO 80204

JUN 2 1981.
)

SECRETARY OF LABOR, MINE SAFETY AND
HEALTH.ADMINISTRATION (MSHA), on
behalf of JOHN COCHRANE and
DARYL SPRADLEY,

)
)
)
)

COMPLAINT OF DISCHARGE,
DISCRIMINATION OR INTERFERENCE

),

DOCKET NO. WEST 80-451-D

Complainants,

)
)

DENV CD 80-13

)
)

MINE: Trail Mountain

v.

TRAIL .MOUNTAIN GOAL COMP ANY,

)
)

Respondent.

)
)

DECISION AND ORDER
On May 14, 1981, the parties to this proceeding filed with the
Commission a Stipulation of Settlement, Motion and Consent seeking an agreed
disposition of the case.
Under the terms of the stipulation, the parties agree that respondent
shall compensate John Cochrane and Daryl Spradley in the amount of $9,000.00
each in settlement of their claims against respondent resulting from their
discharges; that respondent shall expunge the employment records of John
Cochrane and Daryl Spradley of any adverse references relating to their
discharges; and that John Cochrane and Daryl Spradley shall accept the above
stipulations as full settlement of the claims giving rise to this case.
By joint motion, the parties seek an order providing: that respondent
tender the agreed upon sum to John Cochrane and Daryl Spradley; that
respondent expunge from their employment records any adverse references
relating to their discharges; and that the above-entitled action be
dismissed with prejudice and upon the merits.
Given the complainants' consent to the t~rms of the settlement and
finding that such settlement will effectuate the purposes of the Federal
Mine Safety and Health Act of 1977, 30 U.S. C. § 801 ~ seq., it is
ORDERED: trrat the settlement agreed to by the parties. is hereby
APPROVED, that the joint motion is hereby GRANTED in full and, that this
case is hereby DISMISSED WITH PREJUDICE.

Jdp D. 1 oltz'
A~ministrative

..... .! .·1 ~-

Law Judge

Distribution:
Phyllis K~ Caldwell, Esq.
Office of the Solicitor
Unit.ed States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
Robert G. Holt, Esq.
1800 Beneficial Life Tower
36 S. State Street
Salt Lake City, Utah 84111

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

JUN 2 1981

)

SECRETARY OF LABOR, MINE SAFETY AND
HEALTH ADMINISTRATION (MSHA), on
behalf of JEFFREY S. HOTCHKISS,

)
)
)

COMPLAINT OF DISCHARGE
DISCRIMINATION OR INTERFERENCE

)

Complainant,

v.
CLIMAX MOLYBDENUM.COMPANY,

)
)

DOCKET NO. WEST 81-130-DM

)

MINE: Climax Mine

)
)

Respondent.

)
)

~~~~~~~~~~~~~~~~~~-

ORDER OF DISMISSAL
The Secretary of Labor has moved to withdraw his complaint of
discrimination filed on behalf of Jeffrey S. Hotchkiss. Withdrawal is
sought on the grounds that insufficient evidence exists to continue
prosecution. Mr. Hotchkiss has filed a forma~ consent to the withdrawal of
the complaint. Respondent does not oppose the motion.
The Secretary's motion is granted, and this pres.ent proceeding is
dismissed with prejudice.
The·Secretary's motion and the miner's accompanying consent, however,
are silent as to whether the dismissal. should foreclose the miner's right to
prosecute his own complaint under section 105(c)(3) of the Act. The
Secretary's determination to withdraw can stand no differently than an
initial determination not to file a complaint; it cannot deprive the miner
of his right to initiate his own complaint. 1/ Because there has been no
affirmative waiver of that right, Mr. Hotchkiss is granted 30 days from his
receipt of this order in which to file his own complaint with the
Connnission, should he wish to do so.
SO ORDERED.

n A. Carlson
dministrative Law Judge

1/ Cf. S. Rep. No. 95-181 95th Cong. 1st Sess. at 37 (1977); reprinted in
Senate Subconnnittee on Labor, Connnittee on Human Resources, 95th Cong., 2d
Sess. Legislative History of the Federal Mine Safety and Health Act of 1977
at 626 (1978).

144'1

Distribution:
Katherine Vigil, Esq.
Office of the Solicitor
United States· Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
Mr. Jeffrey Hotchkiss
145 West 7th
Leadv.ille, Colorado 80461
W. Michael Hackett, Esq.
Canges, Shaver, Volpe & Licht
600 Capitol Life Center
Denver, Colorado 80203

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

JUN3 al
SOUTHERN OHIO COAL COMPANY,
Contestant

Notices of Contest

v.

Docket Nos. LAKE 81-17-R
LAKE 81-18-R
LAKE 81-19-R
LAKE 81-20-R
LAKE 81-21-R
LAKE 81-22-R

··

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

Meigs No. 1 Mine
DECISIONS
Appearances:

David M. Cohen, Esquire, Lancaster, Ohio, for the
contestant;
F. Benjamin Riek III, Trial Attorney, Office of the
Solicitor, U.S. Department of Labor, Cleveland, Ohio,
for the respondent.

Bef'ore:

Judge Koutras
Statement of the Proceedings

This case concerns contests filed by the contestant on October 20, 1980,
pursuant to section 105 of the Federal Mine Safety and Health Act of 1977
challenging the validity of the citations issued by Respondent, MSHA, for violations under 30 C.F.R. § 75.1003-2. On D.ecember 4, 1980, Respondent filed a
motion to permit late filing of its atta~hed answer and an order granting the
motion was issued December 16, 1980. A hearing on the matter was scheduled
for March 24, 1981, in Columbus, Ohio, but was subsequently continued to allow
the parties to submit joint stipulations for the purpose of issuing a summary
decision. Accordingly, briefs by both parties were filed on April 29, 1981.
Stipulations
1. The contestant operates the Meigs No. 1 Mine. This is a coal mine
as defined by section 3(h) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (hereinafter the Act).
2.

The contestant is an operator as defined by section 3(d) of the Act.

!
_4,.

•

:_.~. I

1('
'

'

3. The contestant is subject to the provisions of the Act pursuant to
section 4 of the Act.
4. At the beginning of the day shift on September 16, 1980, contestant's miners were transporting a part of an off-track shuttle car (which
part was referred to in the subject citations as a "boom") on the east
track of the Meigs No. 1 Mine.
5. Because contestant's miners did not believe that said part constituted a "unit of off-track mining equipment" or "off-track mining equipment,"
contestant did not believe on September 16, 1980, that 30 C.F.R. § 75.1003-2
or any of the subsections thereof were appropriate to said movement and acted
accordingly.
Inspector Charles M. Fin~authorized representative of Respondent,
believed that said part did constitute a "unit of off-track mining equipment"
or "off-track mining equipment."
6. Citation Nos. 1010970 through 1010975 were served on contestant on
September 16, 1980, between 9:37 a.m. and 9:42 a.m. The conditions or practices described in said citations are not now at issue.
7. On October 16, 1980, contestant filed a notice of contest concerning
the validity of Citation Nos. 1010970 through 1010975.
8. All of the subject citations relate to section 310(d) of the Federal
Mine Safety and Health Act of 1977 and allege violations of 30 C.F.R.
§ 75.1003-2.
9. All of the subject citations, except for Citation No. 1010972, are
classified as "significant and substantial."
10. The part of an off-track s.huttle car being transported on a lo-boy
supply car was 5 feet 5 inches in length, 8 feet 9-1/2 inches in width, and
23 inches in height. The off-track shuttle car was 24 feet 10 inches in
length, 9 feet 6 inches in width, and 34 inches in height. The lo-boy supply car was 12 feet in length, 8 feet 6 inches in width, and 8-1/2 inches
in height from the rail.
11. Subsequent to the issuance of the subject citations, a notation
was made in the equipment record book for the earlier September 16, 1980,
midnight shift concerning the subject part. This notation was made solely
to safeguard against contestant being served with an additional citation or
ci,tations and was entered even though at that time contestant believed the
su15ject regulations did not require any such entry.
12. Southern Ohio Coal Company produced 4,437,769 tons of coal during
1979 and 5,054,776 tons of coal during 1980. The Heigs No. 1 Mine produced
918,242 tons of coal during 1979 and 1,133,645 tons of coal during 1980.

1450

13. Respondent will submit a computer printout documenting all violations of the Act incurred and paid by contestant at the Meigs No. 1 Mine.
The parties stipulate as to the admissibility of the printout.
Issues
1. Whether a boom, a component of an off-track shuttle car, constitutes
a "unit of off-track mining equipment" or "off-track mining equipment" subject
to the requirements of 30 C.F.R. § 75.1003-2.
2. If components such as a boom are included within the coverage of
30 C.F.R. § 75.1003-2, whether the standard is so vague as to be unenforceable
or unconstitutional.
3. Whether respondent correctly charged contestant with six separate
violations of 30 C.F.R. § 75.1003-2 for one occurrence.
Applicable Statutory Provisions
1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164,
effective March 9, 1978, 30 U.S.C. § 801 et ~·

2.

30 C.F.R. § 75.1003-2, which provides in.pertinent part as follows:
Requirements for movement of off-track mining
equipment in areas of active workings where energized trolley wires or trolley feeder wires are
present; pre-movement requirements; certified and
qualified persons.

(a) Prior to moving or transporting any unit of offtrack mining equipment in areas of the active workings
where energized trolley wires or trolley feeder wires are
present:
(1) The unit of equipment shall be examined by a
certified person to ensure that coal dust; float coal
dust, loose coal oil, grease, and other combustible
materials have been cleaned up and have not been
permitted to accumulate on such unit of equipment; and,
(2) A qualified person, as specified in§ 75.153 of
this part; shall examine the trolley wires, feeder wires,
and the associated automatic circuit interrupting devices
provided for short circuit protection to ensure that proper
short circuit protection exists.
(b) A record shall be kept of the examinations
required by paragraph (a) of this section, and shall be
made.available, upori request, to an authorized representative of the Secretary.

145.l

(c) Off-track mining equipment shall be moved or
transported in areas of the active workings where energized trolley wires or trolley feeder wires are present
only under the direct supervision of a certified person
who shall be physically present at all times during moving
or transporting operations.
(d) The frames of off-track mining equipment being
moved or transported, in accordance with this section,
shall be covered on the top and on the trolley wire side
with fire-resistant material which has met the applicable
requirements. of Part 18 of Subchapter D of this Chapter
(Bureau of Mines Schedule 2G).
(e) Electrical contact shall be maintained between
the mine track and the frames of off-track mining equipment being moved in-track and trolley entries, except that
rubber-tired equipment need not be grounded to a transporting vehicle if no metal part of such rubber-tired
equipment can come into contact with the transporting
vehicle.
Background of Controversy
On September 16, 1980, MSHA inspector Charles Fink conducted an inspection of Southern Ohio Coal Company's Meigs No. 1 Mine. During this inspection, Mr. Fink observed the boom of an off-track shuttle car being transported
on a lo-boy. Finding 30 C.F.R. § 75.1003-2 to be applicable, the inspector
issued six citations alleging violations of subsections (a)(l), (a)(2), (b),
(c), (d), and (e). Contestant contends that the citations should be vacated
because a boom, a component of an off-track shuttle car, is neither a unit
·of off-track mining equipment nor off-track mining equipment and is not subject to the provisions of 30 C.F.R. § 75.1003-2. Contestant also maintains
that if the standard does apply to booms, then it is unconstitutionally
vague. Further, contestant states that the. inspector improperly issued six
citations for one incident involving the transporting of a boom. Respondent
counters each one of contestant's argtunents, asserting that a boom is regulated by 30 C.F .R. § 75 .1003-2 and that the standard is not vague. Further,
respondent asserts that it is proper to issue separate citations for each
violation of a subsection of a mandatory standard.
The six citations issued in these proceedings, resulting from the movement and transportation of the off-track shuttle car boom, are as follows:
Citation No.

Date

30 C.F~R. Section

Conditions Cited

1010970

9/ 16/80

75.1003-2(a)(l)

No equipment examination by a certified
person.

1010971

9/16/80

75 .1003-2(a)(2)

Failure to examine
trolley circuit and
D.C. circuit breakers
prior to movement.

1010972

9/16/80

75 .1003-2(b)

Failure to keep a
record of the required
equipment examinations.

1010973

9/16/80

75 .1003-2(c)

Failure by a certified
person to supervise the
movement of the equipment.

1010974

9/16/80

75 .1003-2(d)

Failure to cover the
equipment with fireresistant material.

1010975

9/16/80

75 .1003-2(e)

Failure to maintain contact between the mine
track and equipment.

Discussion
A. The Use of the Phrases "Unit of Off-track Mining Equipment" and "Off-track
Mining Equipment" in 30 C.F.R. § 75.1003-2.
Respondent argues that all requirements of 30 C.F.R. § 75.1003-2 are
predicated on the movement of any unit of off-track mining equipment, and
maintains that a boom is such a unit of equipment. In so stating, respondent ignores the fact that of the six subsections of which contestant has
been charged with violating, only (a)(l), (a)(2) and (b) refer to "units"
of off-track mining equipment. Contestant's suggestion that the terms
"units ·of off-track mining equipment" and "off-track mining equipment"
ref er to the same type of equipment is more acceptable in light of the
rules of statutory construction.
One such rule states that "a statute s.hould be construed so that effect
is given to all provisions, so that no part will be inoperative or superfluous,
void or insignificant, and so that one section will not destroy·another unless
the provision is .the result of obvious mis.take or error." C. D. Sands, 2A
Sutherland, Statutory Construction, § 46.06, p. 63 (1973). Accordingly, in
order for section 75.1003~2 to make sense, and since units of off-track mining equipment are not distinguished from off-track mining equipment in the
safety standard, I find that they refer to the same tyP.e of equipment.
Support for this conclusion can be found in the definitions of the words
"unit" and "equipment." The word "unit" as defined in Webster's New World
Dictionarv includes both:
l.b) a magnitude or number regarded as an undivided whole •

• r: 'J
•.

t.) '"'

*

*

*

*

*

*

*

3.b) a single, distinct part or object, especially one
used for a specific purpose [the lens unit of a camera].
The word "equipment" is aptly noted as being: "An extremely elastic term,
the meaning of which depends on context." Blp.ck's Law Dictionary.
Using these definitions, a unit of off-track mining equipment might
refer to either a part of a larger piece of equipment or to only the complete machine. Regardless of whether a boom is a unit of off-track mining
equipment, or just off-track mining equipment as those phrases are used· in
section 75.1003-2, it is apparent that the definitions of "unit" and "equipment" allow the phrases to be used interchangeably. It is therefore necessary to closely examine the regulatory standard to understand the context
in which these words are used.
B. Whether a Boom, a Component of Off-track Mining Equipment is Subject to
the Provisions of 30 C.F.R. § 75.1003-2.
Contestant, in support of its position that a boom, as a component of
off-track mining equipment, is not encompassed by the standard, thoroughly
examines the textual construction and the legislative ·history of 30 C.F.R.
§ 75.1003-2.
Initially, contestant observes that components are not within
the Congressional purpose of section 310(d) of the Act, which authorized
promulgation of section 75.1003-2. Section 310(d) provides in part that:
"Trolley wires and trolley feeder wires shall be guarded adequately (1)
at all points where men are required to work or pass regularly under the
wires."
Contestant concludes that section 75.1003-2 should apply only to equipment which needs to be guarded from contact with trolley wires. Contestant
asserts that "the precautions specified in section 75.1003-2, according to
respondent's interpretation, would be required ·regardless of how small a
component. was moved and how great a vertical clearance between the component
and trolley wire" (Brief, pp. 2-3). Recognizing the Congressional purpose,
contestant concedes that the standard should apply to complete or reasonably
complete pieces of equipment (Brief, p. 6).
Contestant examines the.history of the regulation, both the events leading
to the promulgation of the rule and the hearings held on the rule. and finds
no reference made to components of off-track mining equipment. It also notes
that the MSHA Inspection Manual implies that the standard does not apply to
components. Volume 2, page 456 of the manual, dated March 9, 1978, which comments on section 75.1003-2, states that: "This section refers to the moving
of off-track mining equipment either under its own power or when being transported by other means." Since components rarely are capable of moving under
their own power, contestant contends that the quoted language supports a conclusion that the regulation was not meant to encompass components.

1454

Respondent's arguments apparently rely on the premise that the words
"unit of off-track mining equipment" are not vague and must be given their
literal interpretation. Asserting that the phrase must be examined in the
context of coal mining, respondent concludes that the plain and natural
meaning of the words apprise the contestant of when it must comply with
the standard. It notes that the clear purpose of the standard is to permit safe movement of mining equipment over energized trolley wires. Therefore, the standard seeks to prevent any electricity-conducting equipment
from coming in contact with these wires. Respondent reasons that since
components are made of steel and conduct electricity, they naturally come
within.the scope of the standard. In view of the purpose of the standard,
respondent contends that contestant should have realized that a boom was a
unit of off-track mining equipment, and therefore covered by the standard.
Upon a review of the arguments of both parties and my own analysis of
the standard, its language and its purpose, I conclude that section 75.1003-2
only applies to complete or reasonably complete pieces of off-track mining
equipment. In interpreting this standard, I have given it the liberal construction which is necessary for remedial legislation whose primary purpose
is preserving human life. See Freeman Coal Mining Company v. IBMA, 504 F.2d
741 (7th Cir. 1974). But while an agency's explication of its regulation is
entitled to great weight, "such interpretations forfeit their entitlement to
deference when they plainly conflict with other indicia of the proper interpretation of the statute." UMWA v. Andrus, 581 F .2d 888, 983 (D.C. Cir.
1978) •
•There is nothing in section 75.1003-2 to indicate that the drafters
intended to include component parts of off-track mining equipment within the
coverage of the standard. Neither the word "component," nor examples of component parts, are found in any of the subsections. Respondent contends that
the term "unit of off-track mining equipment" was meant to be expansive "in
order to cover the myriad of possible pieces of equipment that may be transported by Contestant over energized trolley wires" (Brief, p. 9). This
argument is unpersuasive since another section of Part 75 specifically refers
to components, indicating that such parts are subject to the safety standard.
See section 75.1103-2. The word "components" easily solves the problem of
listing "the myriad of possible pieces of equipment." Therefore, it is fair
to assume that the drafters would have included the word "components" within
the provisions under section 75.1103-2 had they intended to include a component part such as a boom.
Subsection (d) of section 75.1103-2 refers to the "frames of off-track
mining equipment." The ordinary meaning of a frame is a structure upon
which a thing is built. One of the examples given in Webster's New World
Dictionary is: "4. any of various machines built on or in a framework."
Therefore, the most natural interpretation of the phrase "frames of offtrack mining equipment" would indicate that it refers only to frames of
c'omplete machinery.
Component parts, such as a boom, do not have frames. They have enclosures or shells. Applicable words are found in 30 C.F.R. § 75.701 in its

reference to "metallic frames, casings, and other enclosures of electric
equipment." (Emphasis added.) Since subsection (d) mentions only frames,
it is evident" that the drafters were considering only large, nearly complete, or complete pieces of machinery.
Subsection (g) provides as follows: ''The provisions of paragraphs (a)
through (f) of this section shall not ap.ply to units of mining equipment
that are transported in mine cars, provided that no part of the equipment
extends above or over the sides of the mine car." The facts here indicate
that the boom was being transported on a lo-boy supply car whose sides were
only 8-1/2 inches high from the rail. Since there were virtually no sides
to the·supply car, anything that would be placed on it would "extend above
* * * the sides of the mine car," and make the exception provided by subsection (g) inapplicable. Therefore, as contestant so aptly states, "the
precautions specified in section 75.1003-2, according to r~spondent's interpretation, would be required regardless of how small a component was moved
and how great of .a vertical clearance between the component and the trolley
wire" (Brief, p.· 2). Such
broad interpretation of the standard goes
beyond any Congressional purpose of providing a safe work environment and
preventing accidents.

a

Respondent argues that subsection (f) sufficiently defines a "unit of
off-track mining equipment" so as to include a boom within its scope. The
standard requires a minimum clearance of 12 inches between the unit and the
trolley wires with additional precautions for equipment which does not permit
at least. a 12-·inch clearance. I fail to see how subsection (g) adequately
defin~s a unit of off...'.track mining equipment, other than to include every
size and type of equipment. According to respondent's interpretation, even
a very small component would be a unit of off-track mining equipment as
long as it is more than 12 inches from the trolley wires when it is being
moved.
Furthermore, if section 75.1003-2 is meant to apply only to components
of off-track mining equipment, then the very same or similar component parts
of on-track mining equipment could be transported where energized trolley
wires are present and not be subject to the safety requirements. This absurd
situation couid not have been anticipated or intended by the drafters.
Respondent's exploration of .the legislative history further convinces
me that section 75.1003-2 was not intended to cover component parts. The
Federal Registers which proposed the initial rule and also reported subsequent hearings and comments, make no mention of components of off-track
mining equipment. */ The drafters obviously thought the words "off-track
mining equipment" were sufficiently clear without further explanation.
Since no mention is made of components, or examples thereof, I conclude
that they are not subject to section 75.1003-2.
~/ See 37 Fed. Reg. 26422 (December 12, 1972); 38 Fed. Reg. 7466 (March 22,
l973~38 Fed. Reg. 16922 (June 27, 1973); 39 Fed. Reg. 29997 (October 31,
1973).

Conclusion and Order
In view of the foregoing, I find that contestant was improperly charged
with six violations under 30 C.F.R. § 75.1003-2 since the boom was neither a
unit of off-track mining equipment or off-track mining equipment. Accordingly,
it is unnecessary to examine.the issues of vagueness and multiple charges
under the safety standard. The record shows that there is no genuine.issue
a·s to any material fact alid that contestant is entitled to summary decision
as a matter of law. Therefore, pursuant to Rule 64, 29 C.F.R. § 2700.64, the
citations are VACATED and these proceedings are DISMISSED.

£.~otf.~
Administrative Law Judge

Distribution:
David M. Cohen, Esq., American Electric Power Service Corporation, P.O.
Box 700, Lancaster, OH 43130 (Certified Mail)
F. Benjamin Riek III, Esq., Office of the Solicitor, U.S. Department
of Labor, 881 Federal Office Building, Cleveland, OH 44199 (Certified
Mail)
Harrison B. Combs, Esq., United Mine Workers of America, 900 15th
Street, N.W., Washington, DC 20005 (Certified Mail)
Standard Distribution

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE; SUITE 400
DENVER, COLORADO 80204

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

v.

PHELPS DODGE CORPORATION,
Respondent.

JUN 4 1981

CIVIL PENALTY PROCEEDING
DOCKET NO. CENT 79-370-M
A/O No. 29-00159-05508
DOCKET NO. CENT 79-371-M
A/O No. 29-00159-05009
DOCKET NO. CENT 79-372-M
A/O No. 29-00159-05010
MINE: Tyrone Mine and Mill

~~~~~~~~~~~~~~~~~~-

DECISION
APPEARANCES:
Marigny A. Lanier, Esq.
Office of the Solicito~
United States Department of Labor
555 Griffin Square, Suite 501
Dallas, Texas 75202
for the petitioner
Stephen W. Pogson, Esq.
Kitchell & Jenckes, P.G.
363 North First Avenue
Phoenix, Arizona 85003
for the respondent
Evans~

Before: Judge Jon D. Boltz
STATEMENT OF THE CASE:
Pursuant to the provisions of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq., the petitioner seeks an order assessing
civil monetary penalties against. the respondent for violations alleged in 3
citations involved in the above captioned cases. An order was issued
consolidating the ra~es for hearing. The citations alleg: a v~olation of
30 C.F.R. § 55.3-3 in case CENT 79-371-M, and separate violations of

};_/ Mandatory. To ensure a safe ope rat ion, the width and height of benches
shall be governed by the type of equipment to be used and the operation· to
be performed.

1458

30 C.F.R. § 55.3-5 2 in cases CENT 79-370-M and CENT 79-372-M.
violations allegedly took place on April 24, 1979.

The

The respondent admits jurisdiction of the Cormnission, denies all other
allegations and alleges that men were not working near or under dangerous
banks at its Tyrone, New Mexico mine.
FINDINGS OF FACT:
1. The alleged violations took place at respondent's open pit,
multiple bench copper mine located at Tyrone, New Mexico.
2. The respondent is a large operator and the penalties proposed will
not affect respondent's ability to continue in business.
3. The respondent has a history of 55 cited violations from July 20,
1978 through April 24, 1979 at its Tyrone, New Mexico mine. Of this
number, there have 28 assessed violations paid.
4. In 1978 there were 723 miners employed at respondent's Tyrone Mine
and 1,064,340 annual man hours were worked by those miners. (Tr. 193).
5.

The violations alleged were promptly abated in good faith.

6. The mining sequence followed at the open pit mine is to di?ill into
the material containing the ore and to set explosive charges in order to
blast the material loose. The material is then scooped up and hauled away
for processing.
7. As the copper ore and other material is removed, a bench slope
plan is followed by the respondent. (Ex. R-6). This plan calls for the
horizontal benches to be approximately 25 feet in width and the bench
levels to be approximately SO feet apart. These catch benches are
separated in stair step fashion by a slopirtg wall.
8. The catch bench is a ledge that runs horizontally in the mine and
it helps to confine or restrain loose material that may fall from higher up
in the pit. (Tr. 16).
.
9. On April 24, 1979, at a location in the mine referred to as the
Gettysburg drop cut, a decline or rim leading from one level down to
another, the No. 13 electric shovel was observed by the MSHA inspector
loading haul trucks with material that had been blasted previously.
2/ Mandatory. Men shall not work near or under dangerous banks.
Overhanging banks shall be taken down immediately and other unsafe ground
conditiofis shall be corrected prom~tly, or the areas shall be barricaded
and posted.

145~t

10. The walls and benches above the area where the material was being
loaded into haul trucks by the No. 13 ~hovel extended up approximately one
hundred to one. hundred fifty feet to the top or crest of the bank.
11. The.maximtnn upper reach of the No. 13 electric shovel wa~
approximately 50 feet.
12. On April 24, 1979, at another location in the mine the No. 3
shovel was being operated to clean up rock material at the bottom of a bank
or pit wall. The bank was approximately one hundred fifty to two hundred
feet high. This operation was also observed by the MSHA inspector.
DISCUSSION:
DOCKET NO. CENT 79-372-M; .Citation No. 162124:
The wall of the mine that slanted away from the work area at the
Gettysburg drop cut was approximately 150 feet high. Approximate.ly 50 feet
from the top of the wall was a horizontal catch bench and 50 feet below the
first bench was anot.her catch bench. According to the bench slope plan,
these benches were to be approximately 25 feet wide, from the t-0e of the
wall out to outer edge of thebench. Photographs ta~en of the Gettysburg
drop cut by the MSHA inspector at the time of the inspection show that the
catch benches had' collected a considerable amount of rocks and earthen
material. Men were working near the to~ of the bank which was
approximately 150 feet high. The MSHA inspector observed one haul truck
up next to the bank being loaded by the No. 13 shovel and another truck
approximately 20 feet away from the high wall. Thus, the employees were
working.near or under the bank and the question presented is whether the
bank or.wall was dangerous.
On April 24, 1979, the No. 13 shovel was at times operating within 20
feet of the toe of the bank and the pit. wall which· rose approximately 150
feet above. The catch benches on the banks a~ove the operator had.almost
completely filled up with rock material. Rocks which might fall from the
top of the wall would not have the catch bench available to stop or at
least slow the fall. The cab of the shovel operator sits approximately 25
to 30 feet above .the ground. If the rocks were falling from the catch
bench, approximately 50 feet up the bank from where the shovel was
operating, the rocks would probably not present a hazard and the bank would
not be dangerous. Since the catch benches contained a large amount of rock
and earth material, a rock which might fall from· the top, 150 £eet up,
would not effectively be restrained, slowed, or stopped by the catch
benches on its way down. This condition would present a hazard to the
operator of the shovel as well as the haul truck drivers and persons
walking on the ground near these vehicles in performance of their duties.
All of these persons were observed at the site by the MSHA inspector. The
operator testified that he observed rock fall from the 100 foot level above
him and that he considered this condition to be hazardous. He also

testified that the. rock ·could come through the cab of the shovel which he
was operating .. The operator had complained to his supervisor about the
d_angerous high .wall and worked near the high wall for approximately· two
hours be.fore he was told by his supervisor to take' the shovel out of that
location. ~owever, no areas were barricaded or posted.
On the date of the inspection, the heavy equipment operator also
observed that there were no catch benches on the high wall above th'e No. 13
shovel. He stated that the catch benches were filled up with material
which. made the benches slope
an angle instead of being flat and
horizontal. In other places, the bench had been "dug back or .had fallen
off to be non-existent." (Tr. 116).

at

It is undisputed by the parties that catch benches are necessary and
perform the function of restraining, stopping or slowing down rocks and
materials which may fall down the face of the bank. Respondent concedes in
its post hearing brief that there was. rock. on the benches. It further
states that this is not very surpirsing since· the purpose of the catch
bench is to catch rock which may fall due to blasting or for some other
reason. However, the question is what if the benches are no longer
available to catch rock because they have been filled by material or are
missing in some places directly above the location where the miners are
working? If there are no effective catch benthes above the miners, then
there would be little to prevent rocks from falling unimpeded
down the face of the bank.
There was testimony that the loose and unconsolidated rock material
observed by the MSHA inspector and by the miners on the bank could move
because of the freeze-thaw characteristics of weather, because of blasting
taking place in nearby areas of the mine, because of rainfall, wind or for
any other reason which might set the rock material in motion. Of
particular signific·ance is the testimony of the truck driver who was
working in connection with shovel No. 13 at the Gettysburg drop cut near
the time of the inspection. He testified that while he was in the cab of
his empty truck waiting for another truck to finish being loaded by No. 13
shovel, part of the bank above him came down and hit the side of his truck.
He looked in the rear view mirror and saw dust and some debris still
falling. His truck was parked within two feet of· the bank. The driver
testified that he had difficulty driving away after his truck was loaded
due to the rock material that had fallen under his truck from the bank.
The catch benches above the No. 13 shovel had accumulated rocks and
earthen material and were no longer effectiv~ in restraining, slowing or
stopping rocks from- falling. This condition made the banks dangerous for
the miners who were working near or under them. There was considerable
risk or peril of injury to the miners if they were struck by rocks or
debris falling -down the side of the high bank. Thus, I find that Citation
No 162124 should be affirmed.

-~ ~ 6.1

DOCKET NO. CENT 79-371-M, Citation No. 162126:
The width of the benches above the Gettysburg drop cut was originally
approximately 2S feet and the height was approximately SO feet. There is
no evidence that these specifications were not proper by engineering
standards. The MSHA inspector concluded that since the benches above had
effectively filled up and could no longer serve to catch falling or sliding
rocks the equipment used would have to be able to clean off potentially
falling rocks from the pit wall or bank above. In this case the bank was
approximately 150 feet high and the shovel had a reach of SO feet.· Thus,
the shovel would be unable to reach high enough to clean off the entire
bank. The inspector also testified that there would have been no
violation of the regulation if the catch benches had been maintained.
The SO foot height of the original benches w~s proper for the
equipment used because the shovel could reach up to SO feet and thus to the
edge of the bench above. Once the benches have sloughed away in 'places and
filled up in others it would be difficult to maintain them. A geologist
who testified for the respondent stated that it would present a danger to a
miner to· go onto benches above and clean them off. Only smaller equipment
could ·be used for that purpose and that equipment would not be able to
reach up SO feet to clean off the bank. (Tr. 372).
The interpretation of the standard advanced by the petitioner would
require the respondent to continually maintain catch benches in locations
where there was no longer any mining operation going on. The standard
requires the height and width of benches to accommodate the type equipment
to be used and in this case no equipment was to be used on those benches.
The height and width of the benches were of proper dimensions when the
mining took place. The problem arose because the benches sloughed away in
some pl~ces and filled up in others after they were no longer in use, thus,
making them ineffecLive in arresting material that could fall down the
bank. It was for this reason that the conclusion was reached in the
previo~s citation that the bank was dangerous.
It was up to the respondent
in that instance to promptly correct such unsafe ground conditions. ·
A violation of 30 C.f.R. § SS.3-3 has not been proven by a
preponderance of the evidence and Citation No. 162126 should be vacated.
DOCKET NO. CENT 79-370-M, Citation No. 16212S:
On April 23, 1979, the No. 13 shovel was being operated to clean up
material at the toe of a bank on the southside of the pit. (Tr. 126). The
cab of the shovel was within approximately 20 feet of the bank and the cab
was approximately 20 to 2S feet above the ground. There was also a service
employee of the respondent on the ground between the shovel and the bank.
The bank under which the shovel opera.tor and the service employee were
working was approximately lSO to 200 feet high. The catch benches were
approximately SO feet apart and had sloughed and filled with rock and rock
material. The shovel operator testified that a rock about half of the size
of a fist had come off of the bank, struck the window of his cab and·
shattered the glass. The operator did finish his loading duties for that
day. However, he refused to go back on the shovel at that location the

next day because of the danger posed by the bank above him. He also
testified that he had observed rock slides in the area where he had been
working previously. (Tr. 128).
The photographs introduced, as well as the testimony of the shovel
operator and other witnesses, show that the catch benches had completely
sloughed away above most of .the area where the No. 3 shovel was working.
This allowed practically no means of arresting falling rocks potentially
dangerous to any miners working below.
The respondent correctly suggests that engineering expertise is
necessary in order .to determine whether or not a bank is unstable.
However, I also conclude that a miner does not have to be an expert in rock
mechanics to determine that his safety is impaired when the window of the
cab of his shovel is struck and shattered by a rock from the bank above
him. By this decision I am not concluding that in every case where a rock
falls from a bank and strikes equipment that the. bank is dangerous.
However, in this case, the operator had previously observed .slides in the
area and the MSHA inspector and other witnesses had observed loose and
unconsolidated material on the bank 150 to 200 feet above the No. 3 shovel.
That material could be s~t in motion for reasons already stated and catch
benches which were partially filled, or had sloughed away altogether, would
not be working to restrain the falling material. This condition made the
bank dangerous for those miners working near or under it. Citation No.
162125 should be affirmed.
CONCLUSIONS OF LAW:
1. The undersigned Judge has jurisdiction over the parties and the
subject matter in these proceedings.
2. The respondent violated 30 C.F.R. § 55.3-5 as alleged in Citation
No. 162124, DOCKET No. CENT 79-372-M; and as alleged in Citation No.
162125, DOCKET NO. CENT 79-370-M.
3. The petitioner failed to prove that the respondent violated 30
C.l".R. § 55.3-5 as alleged in Citation No. 162126, DOCKET NO. CENT
79-371-M.
ORDER
Citation No. 162126 and the penalty proposed therefor are hereby
vacated. Citation No. 162124 is affirmed and the penalty assessed is
$1,000.00. Citation No. 162125 is affirmed and the penalty assessed is
$195.00. The respondent is ordered to pay total civil penalties in the sum
of $1,195.00 within 30 days from the date of this decision.

Distribution:
Marigny A. Lanier, Esq.
Office of the Solicitor
United States Department of Labor
555 Griffin Square, Suite 501
Dallas, Texas 75202
Stephen W. Pogson, Esq.
Evans, Kitchell & Jenckes, P.C.
363 North First Avenue
Phoenix, Arizona ·85003

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

JUN 9 1981

Civil Penalty Proceeding

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

Docket No. LAKE 79-215-M
A.C. No. 11-01176-05002

v.

Barry Plant No. 8 Dredge and Mill
MISSOURI GRAVEL COMPANY,
Respondent
DECISION
Appearances:

Janet M. Graney, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
James A. Burstein, Esq., and Thomas S. Foster, Esq.,
for Respondent.

Before:

Judge William Fauver

This proceeding was brought by the Secretary of Labor und~r section
llO(a) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seq., for assessment of civil penalties for an alleged violation of a
mandatory safety standard. The case was heard at Springfield, Illinois.
Both.parties were represented by counsel, who have submitted their proposed
findings, conclusions, and briefs following receipt of the transcript.
Having considered the contentions of the parties and the record as a
whole, I find that the preponderance of the reliable, probative, and substantial evidence establishes the following:
FINDINGS O~ FACT
1. At all pertinent times, Respondent, Missouri Gravel Company, operated a plan.t known as the Barry Plant No. 8 Dredge and Mill in Pike County,
Illinois, which produced sand and gravel for sales in or substantially
affecting interstate commerce.
2. Material was transported through the plant by a conveyor belt that
was powered by a motor-driven pulley. The belt traveled about 350 feet per
minute. The plant operator, Leslie Perrine, controlled the head pulley by
a main switch panel at the lower level of the plant.

3. The head pulley was about 30 inches in diameter and consisted of a
motor, a feed belt drive and a gear reducer. It was surrounded by a work
platform and was about 30 feet above the plant's surface. A 50-foot walkway
ran parallel to the belt between the tail pulley on the plant surface and
the head pulley and provided the only access to the work platform. A small
stairway led to the walkway at the lower end. A "no ent~y" sign was at the
top of the stairs, on a detachable chain that went across the landing. This
was put there to keep out unauthorized personne·l.
4. A waist-high handrailing extended along the perimeter of the work
platform and the outside of the walkway. There was no rail between the conveyor belt and the walkway or between the work platform and the pinch point,
where the belt revolves around the head pulley. The walkway and work platform
were constructed of metal grating and exposed to the weather.
5. Robert Rohs, the plant superintendent, traveled on the platform about
twice a week for a visual inspection of the head pulley while the conveyor was
running. It was his practice not to move closer than 20 to 24 inches from the
pulley. If he needed to get closer, he would first notify the plant operator
to shut down the conveyor. The plant operator went up on the platform about
twice a week to grease the head pulley and, as needed, to perform repairs and
maintenance. The evidence indicates that the operator went on the platform
only when the conveyor was not running. The above two personnel were the only
ones authorized to detach the chain and go onto the platform. However, in
the absence of the plant superintendent, another employee would be required
to inspect the head pulley.
6. On :1ay 24, 1979, Inspector Richard J. Ogden inspected the plant
including the conveyor belts, the dredge, mobile equipment and the shop and
maintenance areas. He was accompanied by Mr. Rohs and Mr. Perrine.
7. The inspector observed that, at the head pulley, the pinch point
between the belt and head pulley was unguarded.
8. On :tay 24, 1979, Inspector Ogden issued Citation No. 363006 to
]{espondent, reading in part: "The head pulley of the main belt conveyor was
not guarded." The cited condition was abated on June 5, 1979, by installing
a perforated screen as a guard.
9. At the time of the irispec ti on, there was no emergency switch at the
head pulley and no
stop cord on the conveyor. It was the inspector's opinion that, without a railing between the work platform and the pinch point,
an employee could be severely injured by becoming caught in the moving
machinery parts.
10. He considered such an injury was unlikely because work was seldom
performed in the cited area while the belt was operating. He saw no one using
the walkway during the inspection.
11. Inspector Ogden also believed that Respondent could not have predicted the alleged violation. The plant had been inspected by MESA and MSHA

inspectors. Before the instant inspection, Harvey Osborne, a MESA inspector,
apparently told Respondent that a "no entry" sign and chain would be adequate
compliance, but cautioned that, in the future, enforcement policy would probably be changed and the chain and sign would not be allowed. However, after
that there were five or six inspections before the instant one and Respondent
was not told that the chain and sign were inadequate; also no violation was
cited for a missing guard at the head pulley prior to the instant charge.
12. After the instant inspection, Mr. Rohs and Mr. Wolfmeyer, Respondent's general superintendent, notified Mr. Fierke of the citation.
Mr. Fierke called the MSHA office and spoke with Mr. Stan Smith, who said
that there was an internal memo from MSHA that provided that detachable
chains and signs were no longer acceptable. MSHA had not circulated this
memo to the owner-operators.
13. On May 24, 1979, Inspector Ogden issued Citation No. 363005 to
Respondent, reading in part: "The return idlers on the No. 1 belt conveyor
were not guarded." On December 9, 1980, the Secretary moved to dismiss the
petition for assessment of civil penalty as to that citation.
DISCUSSION WITH FURTHER FINDINGS OF FACT
Based on the citation issued on May 24, 1979, the Secretary has charged
Respondent with a violation of 30 C.F.R. § 56.14-1, which provides: "Mandatory. Gears; sprockets; chains; drive, head-, tail, and takeup pulleys; flywheels; couplings; shafts; sawblades; fan inlets; and similar exposed moving
machine parts which may be contacted by persons, and which may cause injury
to persons, shall be guarded."
The Secretary contends (1) that the chain and sign across the stairs,
about 50 feet from the pinch point, was not a guard within the meaning of
the cited standard, and (2) that the events in prior inspections do not
estop the Secretary from charging Respondent with a violation of the cited
standard.
The Secretary proposes a penalty of $26.
The Respondent argues that the detachable chain and sign provided
adequate protection against injury from the moving parts of the head pulley
because the walkway provided the only access to the head pulley and no
employees, except the plant superintendent, were authorized to remove the
chain and travel on the platform while the conveyor belt was running. The
operator was the only other person authorized to travel on the platform and
he traveled it only when the belt was not running. Respondent contends that,
when the superintendent traveled on the platform .to inspect the head pulley,
he would perform only a visual inspection no closer than 20 to 24 inches from
the pinch point and was, therefore, in no danger of injury.
Respondent also argues that the Secretary is estopped from bringing this
action because of Respondent's good-faith reliance on the representations--

1 lf.4 6,.I

!

express an~ implied--of prior inspectors who indicated that use of the chain
and sign was adequate compliance.
I find that the detachable chain and "no entry" sign that limited-access
to Respondent's head pulley at the Barry Plant No. 8.Dredge and Mill were not
an adequate guard within the meaning of the cited standard. Two employees
were authorized to detach the chain and travel on the work platform. Other
employees heeded the warning of the "no entry" sign; however, the two authorized employees were not protected from the dangers of becoming caught in
the head pulley and severely injured. Mr. Rohs testified that he has never
slipped on the surface of the work platform, even when the surface was wet.
However; I find that the possibility of slipping on a wet or icy platform,
or of simply stumbling, was not so remote as to excuse Respondent from providing a guard around the moving machine parts.
I also find that earlier statements made by inspectors as to what constitutes a suitable guard are not binding upon the Commission. However,
Respondent's good-faith reliance on the express and implied representations
of prior inspectors, and MSHA's failure to notify Respondent of a change in
enforcement policy before the instant inspection, show that Respondent was
not negligent.
CONCLUSIONS OF LAW
1. The undersigned Judge has jurisdict;ion over the parties and subject
matter of the above proceeding.
2. Respondent violated 30 C.F.R. § 56.14-1 by failing to provide a
guard around the head pulley at its Barry Plant No. 8 Dredge and Mill, as
alleged in Citation No. 363006. Based upon the statutory criteria for
assessing a civil penalty for a violation of a mandatory standard, Respondent is assessed a penalty of $1 for this violation.
3. Petitioner's motion to dismiss the petition for assessment of civil
penalty as to Ci ta"tion No. 363005 is GRANTED.
ORDER
WHEREFORE IT IS ORDERED that (1) Respondent shall pay the Secretary of
Labor the above-assessed civil penalty, in the amount of $1, within 30 days
from the date of this decision and (2) the petition for assessment of civil
penalty as to Citation No. 363005 is DISMISSED.

11~
]a;,,,..,~
LLIAM FAUVER, JUDGE

Distribution:
Janet M~ Graney, Esq., Trial Attorn~y, Office of the. Solicitor,
U.S. Department of Labor, 230 South Dearborn Street, 8th Floor,
Chicago, IL 60604 (Certified Mail)
James A. Burstein, Esq., Counsel for Respondent, 8500 Sears Tower,
233 South Wacker Drive, Chicago, IL 60606 (Certified Mail)

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

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

a1ol981

Civil Penalty Proceeding
Docket No. LAKE 81-91
A.O. No. ll-02236-03063V

v.

Crown No. 2 Mine

FREEMAN UNITED COAL MINING
COMPANY, a division of
Material Service Corp.,
Respondent
DECISION
Appearances:

Rafael Alvarez, Esq., U.S. Department of Labor, Office
of the Solicitor, Chicago, Illinois, for the Petitioner;
Harry M. Coven Esq., Chicago, Illinois, for the Respondent.

Before:

Judge Koutras
Statement of the c"ase

This proceeding concerns a proposal for assessment of civil penalty
filed by the petitioner against the respondent pursuant to section llO{a)
of the Federal Mine Safety and Health Act of 1977, charging the respondent
with one alleged violation of mandatory safety standard 30 CFR 75.200.
Respondent filed a timely answer contesting the citation and the matter was
scheduled for hearing on May 20, 1981, in Terre Haute, Indiana, along
with other cases involving these same parties. However, prior to the
commencement of the hearing, the parties advised me that they had agned
to a settlement of the dispute, and they were afforded an opportunity to
present their joint settlement proposal on the record for my consideration.
The citation, initial assessment, and proposed settlement amount are as
follows:
Citation No.

Date

Proposed Assessment

Settlement

1005827

11/10/80

$2,000

$1,500

Discussion
The citation in this case was issued after the inspector found that
certain room and entry intersection diagonals and crosscuts were driven

1470

for distances wider than those provided for by the respondent's
approved roof control plan. In support of the proposed settlement,
petitioner stated that the citation in question was issued approximately
one month before respondent's new roof control plan was approved, and
that the roof area in question was considered to be in very good condition
and was fully roof-bolted. Under the new roof control plan, the area
cited as being driven too wide would only have exceedeq the plan requirements by approximately 18 inches, and the conditions cited did not result
in any accidents or injuries (Tr. 4-9).
In view of the foregoing circumstances, and taking into account all
of the statutory .civil penalty criteria found in section llO(i) of the
Act, the parties were in agreement that the proposed settlement is
reasonable and they requested my approval.
Conclusion
After careful review and consideration of the pleadings, arguments,
and information of record in support of the proposed settlement, I
conclude and find that it is reasonable and in the public interest.
Accordingly, pursuant to 29 C.F.R. 2700.30, the settlement is APPROVED.
Order
Respondent IS ORDERED to pay a civil penalty in the amount of $i,500,
in satisfaction of the citation in question within thirty (30) days of
the date of this decision and order, and upon receipt of payment by
the petitioner, this proceeding is DISMISSED.

~Ko'!a~
Administrative Law Judge

Distribution:
Rafael Alvarez, Esq., U.S. Department of Labor, Office of the So i.citor.
230 South Dearborn St., Chicago, IL 60604 (Certified Mail)
Harry M. Coven, Esq., Gould & Ratner, 300 West Washington St., Suite 1500,
Chicago, IL 60606 (Certified Mail)

1471

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

JUN 10 1981

Complaint of Discharge,
Discrimination, or Interference

SECRETARY OF LABOR,"

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),
Docket No. SE 79-25-D
CD 78-95

On behalf of:

Nauvoo Strip Mine

WAYNE TICE,

Complainant

v.
AADIANT COAL COHPA.i."l'Y, INC.,
Respondent
DECISION
Appearances:

Inga Watkins, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Complainant;
~
Joseph w. McCullough, Radiant Coal Company, Inc.,
Birmingham, Alabama, for Respondent.

Before:

Judge Stewart

The above-captioned case is a complaint of discharge, discrimination,
or interference brought pursuant to section 105(c) 1/ of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (hereinafter, the
Act).

1/ Section-10S°(c)(l)--0f~he Act-readS-in pertinent part as follows:
"No person shall discharge or in any manner discriminate against or cause
to be discharged or cause discrimination against or otherwise interfere with
the exercise of the statutory rights of any miner, representative of miners or
applicant for employment in any coal or other mine subject to this Act because
such.miner, representative of miners or applicant for employment has filed or
made a complaint under or related to this Act, including a complaint notifying
the operator or the operator's agent, or the representative of the miners at
the coal or other mine of an alleged danger or safety or health violation in
a coal or other mine * * *. "

•~t·

( ,··

At the hearing, the parties introduced stipulations, admissions,
exhibits, 2/ and the testimony of witness·es. The Complainant called as
witnesses Wayne Tice; Billy Starnes, United Mine Workers of Ameri~a (UMWA)
executive board member for District 20; Terry Hunter, president of .UMWA Local
6855; David Lawson, UMWA safety inspector; and Lawrence Layne, Special Investigator for Coal Mine Safety.and Health, U.S. Department of Labor. Joseph
McCullough, president of Radiant, testified ~n behalf of Respondent.
Wayne Tice was employed by Radiant Coal Company (hereinafter Radiant)
from October 10, 1977, until June 8, 1978, when he was discharged. The reasons given for his discharge were an inciden.t which occurred on June 6, 1978,
when Tice allowed .a drill truck to roll while a person was underneath it and
other alleged safety infractions for which he had been reprimanded.
Tice, a UMWA member, was idled from December 1977, to April 1978, by a
strike. After he returned to work on April 10, 1978, and complained of
mechanical problems he encountered while operating the drill, he was not
allowed to work as many hours as the other employees.
Radiant is not in operation and is no longer active but it has not ~one
bankrupt nor has it been dissolved. The last coal mining at the Nauvoo Strip
.Mine took place in September 1978. The machinery which had been leased was
returned to its owners. Radiant currently has no assets. It owe·s $11,000 to
the Internal Revenue Service in withholding·taxes. Other major obligations
include amounts owed to a fuel distributor a~d a power company. The total
liabilities amount to a minimum of $40,000.
ISSUES
I. Whether Wayne Tice is entitled to relief pursuant to the provisions
of section lOS(c) of the Act.
II. If Wayne Tice has been discriminated against in violation of section 105, to what relief is he entitled?
In order to establish a prima facie case of a violation of section lOS(c),
Tice must establish (1) that he engaged in" protected activities, and (2) that
the adverse action taken against him was motivated in part by the protected
activities. Tice bears the ultimate burdEl!n of persuasion with regard to these
issues. On the other hand, Radiant may affirmatively defend by proving by a
preponderance of the evidence that, although part of its motive was unlawful,
(1) it was also motivated by the miner's unprotected activities and"(2) that
it would have taken adverse action against the miner in any event for the
unprotected activities alone. Pasula v. Consolidation· coal Company, 2 MSHC
2/ The transcript of this hearing contains references to an exhibit, M-8.
This number was included as a designation of one of a group of pr~marked
exhibits which were offered at one time. No exhibit offered actually has the
designation M-8.

1001, 1010 (1980) (hereinafter, Pasula); Robinette v. United Castle Coal
Company, Docket No. VA 79-141-D, 2 MSHC 1213 (1981).
STIPULATIONS AND ADHISSIONS
That the Federal Mine Safety and Health Rev;ew Commission
has jurisdiction over the subject matter of this case
That Wayne Tice, Complainant, worked for Radiant Coal
Company at the Nauvoo Strip Mine between October 10th, 1977
and June 7th, 1978.
That during the working shift between April 14th and
21st, 1978, the drill steel of the 650 CP drill had t•) ~_e
placed back into the rack. The drill steel fell out of the
rack and injured Wayne Tice's foot.
That Wayne Tice did not receive work between May "';t'_
1978 and May 30th, 1978.
That on June 8th, 1978, Wayne Tice was discharged from
Radiant Coal Company.
That the 650 GP drill assigned to Wayne Tice while
employed at the Nauvoo Strip Mine was r7paired on June 13th,
1978. The repairs included, but were not limited to, adjustment to the latches on the steel rack, welding the mast and
replacing the pin on the steel rack lock.
That on Hay 30th of 1978, Radiant Coal Company was aware
that Mr. Tice claimed that the drill jumped into reverse while
being operated by him.
That on June 5th, 3/ Mr. Tice was sent home and asked to
stop working at 3 :45 p.m., and that all other miners working
at the mine that day continued to work the remainder of the
day.
DESCRIPTION AND CONDITION OF DRILL
The CP650 drill, which is truck-mounted, drills a hole 6-7/8 inches in
diameter. Separate engines run· the drill and the truck. When in operation,
the drill stands vertically 28 feet in the air. The steels used for drilling
are mounted on the drill mast and are attached to a drilling head. A rack

3/ Although Complainant's witnesses mistakenly referred to the last day on
which Tice worked as June 5, 1978, the record as a whole establishes that
the last day he worked was June 6, 1978.

1174

alongside the drill carries seven spare steels to be used in drilling. The
steels have an outside diameter of 5 inches and an inside diameter of 3 inches.
They are 25 fee-t long and weigh 4,000 pounds. The spare steels are held in
place in the rack by brackets and secured there by latches operated by means
of rods.
When Tice returned to work after the strike on April 10, 1978, rods were
missing on some latches and some of the latches were frozen. As a result,
once latched, the latches could not be undone. If left undone, the steels
would move around. Steels would come loose when the drill was in a vertical
or horizontal position.
The rotation lever on the drill was also defective. When the lever was
in the reverse position, a counterclockwise rotation unscrewed the steels from
the drill operating head. A pin and part of its linkage were broken. Because
of the broken pin, the drill would vibrate itself into reverse. As a result,
the steel would be unscrewed from the drill head. When the carrier was to be
moved, the mast would be lowered to a horizontal position. The drill motor
was left running to maintain the hydraulic pressure. If the rotation lever
vibrated into reverse, the steel would detach itself and then fall when the
drill mast was again raised to a vertical position.
The rotation lever and a throttle lever had first become defective on
December 1, 1977, just prior to the strike. The throttle lever had been
repaired during the strike. Part of the problem with the rotation lever-the broken linkage--was also repaired during' the strike.
The drill was a used machine which required maintenance on a regular
basis. At various times, the throttle was adjusted, parts of the motor
were taken off and repaired, bolts were tightened and adjusted, and welding was done on the latches. This welding on the latches was done by
Radiant employees. Additional work was done on the drill on June 13, 1978,
after Tice had been discharged. Repairs were made to the latches, the pin
was replaced in the "steel rack lock" and welding was done to fix the latch
on the mast.
During the period from December 4, 1977, until the end of March 1978,
Joseph McCullough, Radiant's president, personally ran the drillon occasion.
He did not have any problem with the steels dropping out. After adjusting
the throttle control, he did not have any problem with it. · During this time,
the carrier was moved several hundred miles without the drill or the drill
steels coming loose. McCullough did not operate the drill from the conclusion of the strike through June 19, 1978.
The Nauvoo Pit was inspected on May 23, 1978. Radiant's daily report for
May 23 mentioned an inspection but did not contain any indication that the
drill was in operation on those days and did not state whether or not the
inspector examined the drill. The drill was useable but was not used in normal
mining operations that day because there was no need to drill. Lawrence Layne,
the MSHA special investigator who investigated Tice's discrimination complaint,

117
I• .

,..
"

·visited the Nauvoo Strip Mine on June 21, 1978.. Mr. Layne had questioned
Mr. Henderson, the MSHA inspector who conducted the inspection of the Nauvoo
Pit in May 1978. Henderson stated that he did not inspect the drill. Edward
McCullough at first believed that the drill had been run for the inspection
but later admitted that he had no personal knowledge tha·t the inspector had
examined the drill, or if he did, whether it was running at the time.
The record establishes that Wayne Tice complained of conditions which he
believed to be a danger to him in the operation of the 650 drill and that he
did not make these claims frivolously. Because of a defective rotation lever,
·the drill would vibrate into reverse when being transported from place to
place. The steel would become disengaged from the drill head .and fall from
the mast. Defecfs in the latches which held the steels to the mast allowed
the steels to come loose. Although Joseph McCullough had no problem operating
the drill during the strike, Tice experienced difficulties in the operation
of the drill due to the defects after the strike.
SAFETY COMPLAINTS
Tice regularly complained of the condition of the drill to Tommy Johnson
from April 10, 1978, through June 6, .1978. He estimated the total number of
complaints to Tommy Johnson to have been 12 to 15 and asserted that he did
so every tiine he encountered a problem with the steels. He specifically
identified one occasion on which he complai~ed. On April 21, 1978, Tice was
slightly injured while attempting to replac~.a steel which had been allowed
to fall from the drill. Tice warned Johnson that someone might be seriously
injured if the condition were not corrected.
Tice also complained of the condition to Terry Hunter on a number of
occasions and on at least one occasion to Billy Starnes. The first occasion
on which Tice complained to Hunter occurred when Hunter went to the Nauvoo
Pit during the third week in April, 1978, to have Radiant Coal Company sign
the new contract~ He observed efforts to replace two steels which had fallen
from the drill. He spoke with both Tice and Tommy Johnson. It was Hunter's
opinion that Johnson knew of Tice's complaint because Johnson was "standing
there" and responded to Johnson's inquiry by saying "We'll try to get it
fixed."
Hunter next spoke with Tice about the condition of the drill a week to a
week and a half later. He again observed Radiant employees placing steels
back into the drill. Chains and chain binders had been used around the steels
in an attempt to keep the steels in place. Hunter again spoke with Tommy
Johnson who assured him that the necessary welding would be done to repair
the drill.
The third occasion on which Tice complained occurred in the last week of
May, 1978. Hunter visited the Nauvoo Pit in response to a complaint made by
Tice over the telephone. Hunter spoke with Tice at the mine and called Billy
Starnes for him. Tice explained his complaint to Starnes and gave Tommy
Johnson the phone. Johnson told Starnes that they would fix the machine

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before using it again. Hunter testified that the condition of the drill was
such that he 'would have refused to operate it; he would.have called for an
inspection by MSHA pursuant to section 103(g) of the Act instead.
Radiant introduced four .exhibits entitled "Operator.'s Daily Report"
completed by Tice with regard to the CP650 drill. These machine operator's
reports were dated April 21, April 26, April 28, and ·May 30. Although space
was provided for a listing of needed mechanical care or attention and Tice
had noted problems with the drill in each report, he made no mention of a
defective rotation lever or defective securing latches. Mr. McCullough testified that he did not see a complaint regarding the rotation lever or securing
latches. Even if no such report were made in writing, the record establishes
that verbal complaints were made by Tice•
PROTECTED ACTIVITY
·It is established by the record that Tice engaged in activity which gave
rise to the protection of section 105(c). In pertinent part, section 105(c)
protects a miner who has "made a complaint under or related to this Act,
including a complaint notifying the operator or the operator's agent, or the
representative of the miners at the coal or other mine of an alleged danger
or safety or health violation in a coal or other mine."
A safety complaint is a protected activity within the meaning of section
105(c) if such complaint is made to the opei&tor, the operator's agent or the
representative of miners at the mine.
terry Hunter and Billy Starnes were representatives of miners within
the meaning of section 105(c). A "representative of miners" is defined in
30 C.F.R. § 40.l(b)(l) as a person or organization which represents two or
more miners at a coal or other mine for the purposes of the Act. · Each was
charged by virtue of his position with responsibility for representing
union members. In his capacity as president of Local 6855, Terry Hunter
served as chairman of the union's safety committee. Billy Starnes was a
member of the district executive board, more commonly referred to as a
field representative.
Section 3(e) of the Act defines an "agent" to be any person charged with
responsibility for the operation of all or.part of a coal or other mine or the
supervision of the miners in a coal or other mine.
Tommy Johnson was Radiant's secretary-treasurer. He had authority to
sign, and ac~ually signed, pay checks for the corporati9n. Tommy Johnson was
also Radiant's "designated representative" for the purpose of conducting examinations and signing records of such examinations.
McCullough's position was that he, McCullough, was the only supervisor
at the Nauvoo Pit. He asserted that there was no foreman at the mine. He
stated that he was "out there frequently (although) not necessarily every
day." McCullough spoke with Johnson every day. · J.ohnson conveyed information

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to McCullough and advised him.
other Radiant employees.

He would relay McCullough's orders to the

Notwithstanding the Respondent's assertion that Johnson was not a foreman, it is found that Tommy Johnson was "charged with * .* * the supervision
of the miners" within the meaning of the Act. Tice received his work orders
from Johnson. He was told by Johnson·when he was to begin and when he was to
cease work. It is also clear that Johnson held himself out to non-employees
as being charged with responsibility. When he was. questioned about Tice's
safety complaints by Terry Hunter and Billy Starnes, Johnson responded to
their questions as if he had the authority to do ~o.
Tommy Johnson was a member of the UMWA during the times pertinent herein.
His membership in the union does not preclude a finding that he was the agent
of Radiant. He was also found by an arbitrator upon a grievance filed by
Wayne Tice not to have been a supervisor within the meanin3 of the 1978
National Rituminous Coal Wage Agreement. The conclusion of the arbitrator as
to Tommy Johnson's status has been thoroughly considered herein. The underlying premise of the arbitrator's opinion was that no individual should be
exempted from the coverage of the contract if it was possible to avoid doing
so. The arbitrator concluded that Johnson was not a supervisor because he
spent much more time in production work than he actually did supervising.
The arbitrator's conclusion that Tommy Johnson was not a supervisor will be
given little or no weight in this decision. In view of the underlying premise
employed by the arbitrator, the contractual'and
statutory categorizations of
,.
an individual as a supervisor turn upon different criteria.
Ultimate control over operations may not have been delegated to .Johnson;
however, in McCullough's absence, Radiant employees looked to Tommy Johnson
for their orders. In conveying orders, he supervised the other miners and,
he exercised a substantial measure of control over daily operations. It
would be unrealistic to categorize Tommy Johnson as other than an agent of
Radiant Coal Company within the meaning of the Act.
Wayne Tice made complaints regarding alleged safety defects to Tommy
Johnson, the operator's agent, and to representatives of miners. In so
doing, he engaged in activities protected by section 105(c) of the Act.
REDUCTION IN HOURS
During the period from April. 10 through June 6, 1978, Tice was permitted
to work fewer hours than other Radiant employees after he had made safety
complaints. The record establishes that this was adverse action motivated
by protected activity.
Tice had been hired on Tommy Johnson's recommendation on October 10,
1977. He was to run the drill and do any work required in the pit. Because
Radiant did not yet have a drill, he ran a bulldozer, pumped water, cleaned
coal, helped load coal, and did anything in the pit that needed to be done
for the first 2 or 3 weeks.of his employment.

1478

Because Radiant Coal Company, Inc., was not a member of the Bituminous
Coal Operators' Association, it signed an appendix to the National Bituminous
Coal Wage Agreement. The contract with the UMWA provided for payment at an
hourly rate. The contract also provides that, in mines producing coal for
6 days a week, each individual shall be given a fair and equal opportunity
to work on each of those 6 days.
Radiant employees were paid on a salary basis. The salary exceeded what
they would have gotten if paid on an hourly basis. Radiant employees were
supposed to work when needed and to do whatever work was necessary. Tice was
paid on a: salary basis when he was hired. After the strike, Tice stated that
he wanted to be paid.by the hour and only wanted to operate the drill. At
that time, Radiant had a quantity of coal stockpiled. The work that Radiant
did amounted to selling stockpiled material. It had finished mining of the
area for which it had a permit. There was, therefore, no need to use the
drill until the permit was obtained for the new area to be mined on April 8,
or April 9, 1978. Tice was called back on April 10 and only he ran the drill
until June 6, 1978.
After Tice complained to Radiant management and the miners' representatives, the nu~ber of hours he was permitted to work were curtailed. Tice
believed that this action was taken because of his safety complaints. He
worked many partial days and so_metimes worked only once per week. Only once
did Tice work for more than.7-1/4 hours. Normally, after working a day, he
would be told that he would be notified when to return to work. He worked
from 7 to 21 hours per week from May 10 thr6ugh June 7. Tice estimated that
the other men generally worked a minimum of 60 hours per week. Because his
home was about 1-1/2 miles from the mine on the road to the mine, he could
observe the other Radiant employees going to and coming from work. Other
employees of Radiant worked as-many as 10 to 12 hours per day and on
Saturdays and some Sundays.
Tice worked to this limited extent from April 10, 1978, to May 8, 1978.
He was laid off from May 8 through May 30 purportedly because a dozer was
broken but Radiant had a second dozer. The dozer was used to make a path
for the drill and to remove rock after the shot. Leo Stubbe, who was classified as a drill helper, worked at least part of these 3 weeks. The drill
was not operated during this period.
Tice first complained about the condition of the drill to Tommy Johnson,
and hence to mine management, on his return to work after the strike on
April 10, 1978. He continued to complain to management throughout the period
in which he was employed by Radiant. Tommy Johnson responded to Tice's complaints negatively. He directed Tice to continue drilling or go home. Tice
continued to complain to Johnson and to union officials. On three separate
occasions, he voiced his concerns to Terry Hunter. On the last occasion, he
also complained to Billy Starnes. Tommy Johnson was aware that Tice complained to the union on these occasions. Johnson was questioned by the union
officials involved regarding the alleged safety problem and told the officials
that the condition would be.corrected.

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Tice was the only individual to run the drill during the period of time
from April 10, 1978, through June 6, 1978. Respondent asserted that Tic_e
opted to only run the drill and Radiant complied with his wishes. The issue
as to whether Tic~ had requested to operate only the drill had arisen as
early as March 27, 1978, a week before Tice returned to -work. Respondent
introduced an unsigned copy of a letter, dated April 3, 1978, purportedly
from Ed Johnson to Terry Hunter. The letter was written for the sole purpose
of informing Mr. Hunter that Radiant had been advised on March 27, 1978, by
"a pit committeeman" that Tice asserted he wanted to run the drill only and
that "he has repeatedly said that he did not want any other." However, in
his statement given to Lawrence Layne, the special investigator of Tice's
discrimination c!aim, Terry Hunter stated that both he and Tice had informed
Tommy Johnson on or about April 4, 1978, that Tice would do any type of work
and that Tice did not make the statement that he wanted to operate only the
drill. Tice stated that he "never refused to do anything that there ever
was for me to do, when they told me to do it." As noted in the daily
reports, Tice occasional)y was called upon to perform tasks other than
drilling.
McCullough did not speak with Tice with regard to this matter. To
support Radiant's contention, he introduced a photocopy of a statement which
was purported to be that of ·Rosemary Stubbe, wife of Leo.Stubbe, in which
she report~d statements made to her by Wayne Tice on March 27, 1978. At
the hearing, Tice denied having made the statement to Mrs. Stubbe.
Mr. ~~Cullough also testified that a number of people, including _Tommy
Johnson, James Connell, a policeman and the mayor also told him that Wayne
Tice had told them that he wanted to run the drill only and that he would
not_ do other work. Tice specifically denied having made such comments. The
nature of the evidence introduced by Respondent is such that Tice's rebuttal
testimony is more persuasive. Although Tice stated a preference to run the
drill rather than do other work when he returned from the strike, he did not
refuse to do other work. Even if that statement had been understood
initially as a declaration that he would do no other work, Tice made it clear
to mine management that such was not his intent. Tice assertion that he
never refused to do any work assigned to him is borne out by frequent references in Respondent's daily reports to his performance of work other than
drilling. Moreover, Tice's unrefuted testimony was that he asked "a couple
of times" to do other classified work and was told that there was nothing
for him to do.
Under these circumstances, the continued negative response to Tice's
complaints and the disparate treatment given him after he made the complaints
show that Tice's protected activity was motivation for the reduction in the
number of hours he was permitted to work during the period from April 10,
1978, through June 6, 1978. The record does not establish that Radiant was
motivated by unprotected activities.

REPRIMANDS
After Tice had made safety complaints about the condition of the drill,
he was issued a number of reprimands for alleged safety infractions. There
was no basis for some of these. reprimands. The record establishes 'that
Tice's protected activity in making the safety complaints was the motivation
for the adverse action taken by Radiant in issuing the unwarranted reprimands.
Tice was issued a reprimand dated April 14, 1978, for failure to comply
with company safety rules. 4/ On April 13, 1978, after a steel worked loose,
Tice stopped drilling and attempted to get the steel back in its rack. He
was wearing safety goggles and a respirator initially as required by the
company safety rules but he removed them ~ecause they prevented him from
seeing properly. He believed that the goggles and respirator had to be worn
only when the drill was in operation. Alan Bradford, a part-time employee
who served as Radiant's safety director, saw Tice and told him to put his
glasses and respirator back on. Bradford asked, and was told, Tice's reason
for having removed the protective equipment. Tice was nevertheless given a
reprimand for failing to wear goggles and a respirator while running the
drill.
Tice was also given a written reprimand for violation of company safety
rules because he used an air hose to clean the dust from his clothing. He
had been using the hose to do so since he be.gan working at Radiant and was
unaware that he violated company safety rules by doing so. Joseph McCullough
testified that Tice had signed and dated a copy of the company's safety rules.
Tice testified that he did not remember doing so. The signed copy of the
rules was not produced. Although it has not been definitely established that
Tice actually signed the rules, he was aware of other provisions in the rules
and should have also known of the prohibition against using the air hose to
clean his clothing.
In the first of two reprimands dated June 5, 1978, J. R. Newton, a person
hired by Radiant to advise on safety matters, alleged on review of the daily
reports that Tice was negligently causing the drill steels to fall because
"the only way to drop these steels is to reverse the rotation of the drill
on pulling the steel out of the bore hole." In the second reprim{lnd, J. W.
McCullough alleged that Tice failed to turn a fuel line valve on the drill
back on. As a result, the services of a mechanic were required to get the
equipment back in operation. Tice testified that he had cut off the fuel
line valve to replace a filter but had been sent home by Tommy Johnson before
he could replace the filter.
4/Tice was also reprimandedin-November of 1977 by Ed Johnson for sleeping
on the job and not performing the work expected of him. Tice explained that
he had been observed with his eyes closed but that he had closed them because
sand was blown into them while he was operating a dozer in a 10-mph wind.

The record establishes that some of these reprimands issued to Tice were
part of a pattern of harrassment against him. Of the four pertinent reprimands issued ·to Tice (not including the letter issued with regard to the
June 6 incident) after his complaints to Radiant, only one appears to have
been of substance. Tice admitted having dusted his clo·thing with an air hose
on April 10, 1978, in violation of company safety rules. On the other hand,
Tice was cited on April 14, 1978, for·not wearing goggles and a respirator at
a time when he was not operating the drill. The company safety rule required
such use only when drilling. Although Tice was afso reprimanded for negligently having caused steels to fall from the drill, it has been established
that the drill had faults that had not been corrected. J. R. Newton had no
reasonable basis for his conclusion that Tice was at fault. Finally, Tice
was also given a reprimand for failing to turn the fuel line back on. In
view of the fact that it is uncontradicted, Tice's explanation of the incident is accepted~ Because the filter change had not been completed when
Johnson directed him to quit for the day, Tice could not have turned the
fuel line valve back on. The lack of a sound basis for the issuance of
three of the four reprimands supports a finding that they were issued to
harass Tice. The assertions of Joseph McCullough to the effect that Radiant
management did not have a "program" to get rid of Tice and that the concurrence of Tice's complaints with the issuance of reprimands was coincidental
are without foundation. It is clear that the unwarranted reprimands were
not motivated by unprotected activity.
DISCHARGE
The record establishes that Tice's discharge on June 8, 1978, after he
had made safety complaints about the condition of the drill, was adverse
action motivated in part by protected activity.
The letter of termination sent to Tice on June 7, 1978, gave as the
cause for the discharge "the continuing violations * * * of the Federal,
State and company safety rules and especially the seriousness of the latest
violation occurring on June 6, 1978." The accident which occurred on June 6,
1978, was due in part to Tice's negligence. As the arbitrator found, the
role that Tice played in causing the accident was serious enough to have
warranted suspension. Obviously, the violation of a Federal, state or company safety rule or regulation is not the type of activity afforded the protection of the Act, however, the record establishes disparate treatment of
Tice for his part in the June 6 incident and that some of the reprimands
issued for the alleged violations were part of a pattern of harassment taken
against Tice in part for the safety complaints that he made.
On the last day on which Tice worked for Radiant, Tice and his helper
Stubbe encountered problems getting the drill carrier started. Once.they
succeeded in doing so, they proceeded to the appropriate location and commenced drilling. Tice's helper informed Tommy Johnson that a problem existed
starting the carrier. While Tice was still drilling and without Tice's
knowledge, Tommy Johnson crawled under the vehicle. Tice was at the rear of
the carrier; Tommy Johnson was in front of the carrier. Tice completed the

1482

drilling, pulled the drill out of the ground and lowered the leveling jacks.
When he did so, the vehicle began to roll and almost ran Johnson over. The
helper had left the vehicle in neutral and the parking brakes were either not
set or not functioning. Tice believed that the carrier had a hand-set emergency parking brake but he had never tried the lever to ~ee if the brakes
worked. He testified: "I was never in the carrier. That wasn't my job."
Stubbe told Tice that the brake would not hold the carrier well enough to
be relied upon, but because he had never attempted to set the brake, Tice
was not sure if it was defective.
Johnson did not reprimand Tice at the time of the near accident and the
day proceeded without further incident until the drill bit wore out. Tice
was sent home by Johnson and told that he would be notified in the normal
fashion when he was again needed to wo.rk. Tice received the letter terminating his employment with Radiant on June 8, 1978.
McCullough testified that he believed the incident which occurred on
June 6 was the result of either an intentional act or one demonstrating a
serious lack of common sense on the part of Tice. He testified that Tice's
claim that his view was obstructed and that he did not observe Tommy Johnson
or Stubbe was not plausible because Stubbe stood immediately to the side of
the right front door of the truck, 10 to 14 feet from where Tice was standing,
and Tommy Johnson was half under the truck. McCullough asserted that Tice
should have seen the helper or Johnson.
The daily report for June 6, 1978, contained a statement to the effect
that Johnson was halfway under the carrier and Stubbe was squatting beside
him when Tice hoisted the jacks, letting the machine roll. McCullough was
not present at the scene of the incident and Tice did not see Stubbe, so it
has not been established whether Stubbe ·was standing or squatting. Nevertheless, Tice should have known the two were there. He should have seen
Stubbe and Johnson approach the carrier. Testimony had been given at the
arbitration hearing on June 19, 1978, to the effect that Stubbe and Tice
started out together to get Johnson who was 200 to 300.feet away and that
Tice turned around and returned to the drill while Stubbe continued on to
get Johnson. Other testimony was given at the arbitration to the effect
that Stubbe went to get Johnson without Tice' s knowledge. In the present
proceeding, the direct testimony of Tice that he did not go with Stubbe when
he left to get Johnson is accepted. Nevertheless, Stubbe did go and get
Johnson, and Tice should have known of their presence. Although there was
negligence on the part of Tice, there is no basis for McCullough's suggestion that the incident was due to an intentional act by Tice.
The accident on June 6 occurred as a result of the concurrent fault of
Tice and Johnson. There was negligence on the part of Johnson as well as
Tice. Before going under the drill, Johnson should have taken steps to notify
Tice· and to determine that the drill would not roll. Johnson conceded at the
meeting held June 9, 1978, that he had committed a safety infraction in failing to do so. On the other hand, Tice should have known that Johnson and
Stubbe were in the vicinity bf the carrier. He certainly should not have

lqwered the carrier without ascertaining whether he could_do so safely; that
is, he shou~d have checked to see where his helper was and ~ade certain that
the vehicle would" not roll when lowered.
De_spite the fact that both men were clearly at fault, action was taken
against Tice alone. There is no indication that Johnson was given even an
oral reprimand. Conceivably, Tice's earlier safety infractions might account
for some difference in the severity of the discipline meted out to Tice and
Johnson. It does not account for the complete absence of adverse action·
against Johnson.
In context, the nature of the disparate treatment of Johnson and Tice
leads to the.conclusion that there were reasons for the discharge other than
those expressed. In view of the hostility of management towards Tice which
was partially motivated by protected activities, it is found that Tice
established a prima facie case that his discharge was motivated in part by
his having engaged in protected activities.
The test announced in Pasula provided the employer an affirmative defense
if it could be established that, "although part of his motive was utilawful,
(1) he was also'motivated by the miners' unprotected activities, and (2) that
he would have taken adverse action against the miner in any event for the
unprotected activities alone." Respondent may have been- motivated in part by
Tice's unprotected activities. Certainly, 'rice was deserving of some form
of discipl~ne·for the role he played in the~une 6th accident. However,
Respondent failed to show that it would have taken adverse action against
Tice because of his actions on June 6th or for any other unprotected activity.
The ostensible reason for Tice'.s discharge was his culpability for the
accident which occurred on June 6th in light of a number of earlier safety
infractions. It has been found, however, that the reprimands for said
earlier infractions were for the most P?rt without substance and were part
of a pattern of harrassment by mine management against Tice. It has also
been found that the record contains no indication that Tommy Johnson was
reprimanded or otherwise disciplined for his concurrent, and equally
serious, negligent disregard of safety.
As noted in the arbitration opinion of June 30, 1978 (Exh. R-9), Tice's
role in the accident may have warranted some disciplinary action. It was
established that Tice acted in negligent disregard of mine saf.ety and endangered the life of Tommy Johnson who was also negligent. Even though cause
for disciplinary action may have existed, Respondent failed to establish that
it would have discharged Tice for his unprotected activities, whether or not
he had engaged in protected activity. The record actually supports a conclusion to the contrary. There is no evidence that Respondent made it a
practice to reprimand any employee other than Tice for safety infractions.
The only instance on the record of a safety infraction by an employee other
than Tice was committed by Tommy Johnson when he proceeded under the carrier
while it was in operation. Although his infraction was serious, no indication exists that he was disciplined. Discounting the earlier reprimands for

the reasons noted above, there is nothing on the record which would lead to
the conclusion t~at Tice would have been treated differently than Johnson was
treated had it not been for the forme.r's participatfon iri protected activity.
That is, there is nothing which would indicate that Respondent woUld have
discha·rged Tice for the safety infraction he committed on June 6, 1978.
Tice successfully established a prima facie case of unlawful discrimination. Respondent failed to counter Complainant's case directly or to establish any affirmative defense. it is found, therefore, that Tice established
by a preponderance of the evidence that the discriminatory action taken
against him was motivated in part by his participation in activity protected
by section 105(c) of· the Act_, entitling him to the relief afforded by that
provision.

RELIEF TO BE AFFORDED
After receiving the letter of discharge dated June 7, 1978, Tice called
Starnes ~ind told him of the letter. Tice was in turn informed t}lat this was
not the proper termination procedure to be followed by Radiant. He was also
informed that the union contract called for a meeting between the employee,
his representative, and a company representative within 24 to 48 hours of the
firing (hereinafter, 24/48 meeting). Tice set up this meeting in a telephone
conversation with either Ed or Tommy Johnson.

,

The 24/48 meeting was held during working hours in Radiant's Gardendale
office on June 9, 1978. Tice, Starnes, HunteP, and Lawson were met by
Mr. McCullough at the office. When they had been seated, approximately seven
other classified Radiant employees from the pit entered the room. Three
members of mine management were present: J. W. McCullough, president; Edward
Johnson, vice president; and Tommy Johnson, secretary-treasurer. When an
objection was raised regarding the presence of the classified emp_loyees, the
explanation was given that the employees were there of their own accord.
Various threats were made in the course of the meeting. At one point,
Tommy Johnson, holding his knife by the blade, shook it in Tice's face.
Tommy Johnson told Tice that "if the union got 'Tice his job back an~ there
was an accident within 500 feet of Tice, Tice would be held responsible and
would answer to Johnson's personal satisfaction."
Tommy Johnson told Hunter that Tice was a safety hazard and was trying
to kill people. Johnson said Hunter would be personally responsible if Tice
was given his job back. While he spoke to Hunter, Johnson also shook his.
knife at him. Johnson also told Starnes and Lawson that they would be held
responsible.
Some of the classified union employees said that they would not work with
Tice whatever the union said because Tice was unsafe. They·believed that Tice
had deliberately let the drill truck roll when Tommy Johnson was underneath it.
At least four or five of the employees had their knives out at the meeting
pretending to be cleaning their fingernails. Tommy Johnson and Ed Johnson,

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another employee listed as an officer of Radiant, were brothers.
the radiant employees were Ed Johnson's sons-in-law.

Three of

When Lawson told Tommy Johnson that he had violated the law first by
crawling under the drill while it remained in operation, Johnson replied that
Tice "should have known [he] was under there." Thereafter, the discussion
became heated. During the argument, Tommy Johnson grabbed Tice by the arm
and said "come on outside. We'll settle this now. I'll show you exactly
what I am talking about." Starnes and.tawson attempted to stop Johnson from
doing so and Tice did not go outside.
It was established that Joseph McCullough did not have a knife out at
the meeting and that his demeanor was friendly. McCullough testified that he
had a feeling that Tice was getting farther away from the other men who worked
with him in the pit, that there was a gradual change in the.men's attitudes
culminating at the meeting on June 9th and that they were not happy working
around him.
Tice took the matter to arbitration on June 19, 1978, 10 days after the
24/48 meeting. The arbitrator ruled that Tice could return to work but did
not grant him back pay due to Tice's role in the June 6th incident. After
the ruling, various threats were directed at Tice by Radiant employees.
James Connell made a statement to the effect that Tice i;vould get beaten up
if he returned to work and that accidents cquld be programmed or set up to
happen. Tice overheard one of the Johnson's,.agreeing with this last statement. Tice believed that Mr. McCullough had something in his pocket that
looked like a gun at the arbitration meeting. McCullough testified that he
has never owned a gun in his life. The record establishes that McCullough
did not have a gun at the arbitration. At the conclusion of the hearing, the
Johnsons "ganged up around the elevator and tried to get Tice and ·the union
representatives to ride the elevator with them."
After the arbitrator ruled that Tice should be permitted to return to
work, Tice told McCullough that he would be at work on the following morning.
However, Tice did not report back for work after the arbitration; nor did
he phone or write to Radiant to inform them that he would not be there. Tice
stated that he did not return to work at Radiant because of the threats made
against him and his family.
Despite the apparent willingness of Mr. McCullough to permit Tice to
return to work, Tice will not be denied recovery herein because of his
failure to do so. Among others, Ed Johnson and Tommy Johnson repeatedly
threatened Tice 1o1ith physical harm if he returned to work. Both Johnsons
were officers of the company. It has been established that Tommy Johnson
was an agent of Respondent within the meaning of the Act. Therefore, his
threatening words and actions are imputed. to Respondent. Tice reasonably
believed that he or his family would suffer physical ·harm if he returned
to work. Under the circumstances, he is properly compensated even though
he did not return to work at the Nauvoo Pit.

14·86

Tice. was unsuccessful in his subsequent efforts to obtain employment
with other local mining operations. Tice stated that he went to every "strip
or underground mine in Walker and Jefferson county." In the middle of July,
he took employment with a construction company.
At the conclusion of the hearing, Complainant submitted the following
calculations of wages and overtime lost by Tice during the period from
April 10, 1978, through June 9, 1978, and to wages lost as a result of his
idlement from (but not including) June 9, 1978, through July 15, 1978.
(a) $953.24: This amount represents "the difference between the hours
actually worked by· Complainant, Wayne Tice, (from April 10, 1978, through
June 9, 1978) and the hours that were actually worked by all men, regular
time, based on 7-1/4 hours being regular time, 11 multiplied by the hourly
contract rate then in effect of $8.91.
(b) $596: That amount would represent "the total hours of overtime
worked by the Union employees at the mine during the period between April 10th
and June 9th. The total hours overtime would be 44.60 hours based on the daily
reports. The total amount of overtime hours is multiplied by the overtime
rate which was according to the Contract ?t the mine. The UMW Contract provided for an overtime rate of $13.37 per hour* * *· [T]he total number of
overtime hours was divided by eight men, including Mr. Tice, based on the
new Contract which provides in Article IV that all overtime available would
be equally distributed amongst all men working at the 1nine. The number of
men working at the mine (was calculated from'" the daily reports). 11
(c) $1,614.94: This amount was achieved by multiplying "the total
number of days between June 9 and July 15 by the hours per day and the amount
of wages * * * provided by the contract ($8.91)."
Counsel for Complainant offered the daily reports 5/ .for the period from
April lo, 1978, through June 6, 1978, in support of the-estimation of damages.
Mr. McCullough was offered the opportunity at the hearing to rebut the Complainant's estimation of damages. He stated that he had no statement to make
regarding damages and that he would not dispute that the figures given by
Complainant reflected "the amount of money he is claiming that.is owed him
in'this discrimination case."
On November 14, 1980, an order was issued setting the date December 19,
1980, for the closing of the record. An opportunity was given therein for
the parties to submit further information and/or clarification of their positions regarding compensatory damages. Neither party chose to submit additional information or clarification.

57--;:ffi.ese daily re.ports-were.. introduced at the hearing with the. acquiescence
of Mr. McCullough. Petitioner retained possession of the reports until
August 10, 1980, presumably to aid in further calculation of damages. The
reports were filed at that time.

Complainant's unchallenged claims are accepted herein as the appropriate
measure of.the damages suffered by Complainant, except to the extent that the
claims are dir·ectly at odds with evidence of record.
Mr. McCullough testified that Radiant Coal Company,. Inc., was not in
active operation from June 7, 1978, through June 19, 1978. This testimony
was not rebutted by Complainant. The last daily report submitted by Complainant waa dated June 6, 1978.
The inactivity of Radiant on June 19, 1978, was the result of the arbitration held that day. Because the shut down of operations on that day was
directly related to the discriminatory action taken against Tice, he is
properly compensated for loss of that day's wages.
The damages claimed by Complainant are accordingly reduced to account for
the 8 working days in the time period between June 7 and June 18 during which
no work took place at the Nauvoo Pit. Complainant's caclulation of lost
wages during the period from April 10, 1978, through June 9, 1978, is reduced
by 3 days' wages ($193.79). The calculation for the period from June 9, 1978,
through July 15, 1978, is reduced by 5 days' wages ($324.82).
It is found that Wayne Tice suffered damages in the amount of $759 in
lost wage·s (regular time) from April 10, 1978, through June 9, 1978; $596
in lost wages (overtime) for this same time period; and $1,290 in lost wages
(regular time) from June 9, 1978, through JuJy 15, 1978.
Complainant also requested that his employment record be expunged of
any unfavorable references to alleged safety·violations for which he was not
at fault. This request is granted with regard to the three reprimands discussed above which were improperly issued to Tice.
There is no evidence that Radiant Coal Company has continued to harass,
threaten or engage in other punitive action against Tice, his family or any
other miner.
The Act and the. Commission's Rules of Procedure contain statutory criteria that must be considered and require specific steps to be taken in connection with penalty assessments. Under the circumstances of this case, an
assessment of a civil penalty would not be appropriate at this time because
the procedural requirements have not yet been met. At the end of the
discrimination case, MSHA requested leave to present evidence concerning the
statutory criteria that must be considered in a penalty case. This request
was denied due to unavailability of time as well as the failure to file a
proper petition for assessment of civil penalty meeting the procedural
requirements of the Act and the Commission's Procedural Rules.
ORDER
It is ORDERED that Respondent, Radiant Coal Company, Inc., pay the sum
of $2,645 plus interest in the amount of 8 percent per· annum, calculated

fr'om the date of his discharge, to Wayne·.Tic,e within 30 days of the date
of this decision.
It is further ORDERED ~hat Respondent expunge from Wayne Tice's employment records reference to the reprimands issued (a) on April 10, 1978, for
failure to wear goggles and a respirator, (b) on June 5, 1978, for.failure
to turn a fuel line back on, and (c) on June 5, 1978~ for causing steels
to fall from the drill.

Forrest E. Stewart
Administrative Law Judge
Distribution:
Inga Watkins, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Joseph w. McCullough, President, Radiant Coai. Company, Inc., 15 Glenview
Circle, Birmingham, AL 35578 (Certified Mail)
United Mine Workers of America, 900 Fifteenth Street, NW., Washington,
DC 20005 (Certified Mail)

.

•qq

..... ' '-

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE
DENVER, COLORADO 80204

)
)
)
)
)
)
)
)
)
)
)

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

UNION CARBIDE CORPORATION,

JUN 1 o 1981
CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 80-401-M
MSHA CASE NO. 42-00473-05006 H
MINE:

Wilson Silverbell

Respondent.
~~~~~~~~~~~~~~~~~~~~-)
DECISION
APPEARANCES:

James H. Barkley, Esq. and Phyllis K. Caldwell, Esq.
Office of the Solicitor, United States Department of Labor
1585 Federal Building, 1961 Stout Street
Denver, Colorado 80294,
for the Petitioner
John W. Whittlesey, Esq.
Metals Division, Union Carbide Corporation
270 Park Avenue
New York, New York 10017,
for the Respondent
Before:

Judge Jon D. Boltz

Pursuant to provisions of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. §. 801 et~· (hereinafter "the Act")~ the petitioner seeks an order
assessing a civil monetary penalty against respondent for the violation of
30 C.F.R. § 57 ..6-177 as alleged in Order of Withdrawal No. 336984-1, as modified.
The case was heard on April 23, 1981, in Grand Junction, Colorado.
At the conclusion of all of the evidence, the parties agreed to waive the
filing of post hearing briefs and agreed to have a decision rendered from the
bench after closing arguments. The bench decision follows:

14!.lO

BENCH DECISION
The petitioner alleges a violation of 30 C.F.R. § 57.6-177.!/ In regard
to the violation alleged, the petitioner more specifically states in Order of
Withdrawal No. 336984, which was modified as 336984-1, that three misfired
holes were observed on November 6, 1979, at 2:30 p.m., in the No. 292 heading,
which is a location designated in the respondent's mine. The order also
alleges that this condition was readily apparent and also that two employees
were roof bolting within approximately 8 feet of the face. The respondent
denies ·the allegation.
The issues in· the case are whether or not there was a violation of the
cited regulation and, if so, what penalty should be assessed.
I make the following findings:
1.

I have jurisdiction over the parties and subject matter of
these proceedings.

2.

The respondent is a large operator and the proposed penalty,
if assessed, would not affect the operator's ability to
continue in business.

3.

There is no significant history of past violations.

4.

The operator demonstrated good faith in attempting to achieve
rapid compliance after notification of the alleged violation.

It is undisputed that there were three misfires and that they were not
reported to any supervisor until their existance was brought to the attention
of the respondent by the MSHA inspector. The shot took place at the face at
approximately .4:30 p.m. on November 5, 1979. After the shot, the swingshift
came to work and the misfires were not discovered during that 8-hour shift.
The misfires were also not discovered on the subsequent shift on November 6,
,1979, until approximately 2:30 p.m. It is also undisputed that the MSHA
inspector observed a fuse at the face of the number 292 heading. The fuse
as described by the inspector was white and approximately 18 inches in length.

]:_/

57.6-177 Mandatory. Misfires shall be reported to the proper supervisor.
The blast area shall be dangered-off until misfired holes are disposed of.
Where explosives other than black powder have been used, misfired holes
shall be disposed of as soon as possible by one of the follo~ing methods:
(a) Washing the stemming and charge from the borehole with water;
(b) Reattempting to fire the holes if leg wires are exposed; or
(c) Inserting new primers after the stemming has been washed out.

A miner who worked with a mucking machine at the face of the ore body
after the shot had taken.place and before the MSHA inspector made his inspection
testified that he checked the area of the blast but observed no misfires.
Addition~lly, there were other persons who passed by the area, but did not
observe any of the misfires •. The fuse described by the inspector was easily
observed by him even though he was there only for the purpose of checking
radiation levels in the mine. The other two misfires were not easily seen ·
since· they were near the bottom and were covered up with rock. There is no
~vidence that the ·fuse dbserv'ed by 'the inspector was not in place from the
time the shot took place at approximately 4:30 p.m. on November 5, 1979,
until"approximately 2:30 p.m~ on November 6, 1979, when it was observed by
the inspector,.
·In my view, the cited r~gulation, which states that misfires shall be
reported to the proper supervisor, is violated when the misfire, which in
this case was readily observable, is left unattended for at least the length
of time that it was iri this case. It wasn't until the MSHA inspector brought
the condition to the attention of the respondent that remedial action was
taken as required by the regulation.
The order of withdrawal is affirmed and I conclude that a penalty should
be assessed in the amount of $2,000.00.

ORDER
The foregoing bench decision is hereby affirmed and the respondent is
ordered to pay a civil penalty of $2,000.00 within 30 days of· the date of
this decision.

~t/'-6< ££'
v..fA:~:r-:-;-c<
;,~.
/ .J n D. Boltz . />}'
· 1.-/Administrative Law--fudge
Distribution:
James H. Barkley, Esq. and Phyllis K. Caldwell, Esq.
Office of the Solicitor, United States Department of Labor
1585 Federal Building, 1961 Stout.Street
Denve.r, ·.Colorado 80294
John W. 'Whittlesey, Esq.
Metals Division, Union Carbide ·corporation
270 Park Avenue
New York, New York 10017

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

a1-i·lll·

Contest of Citation

VIRGINIA POCAHONTAS COMPANY,
Contestant

Docket No. VA 79-136-R

v.
Citation No. 696068
August 17, 1979

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

Vi-rginia Pocahontas No. 2' Mine
Civil Penalty Proceeding

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

Docket No. VA 80-112
Assessment Control
No. 44-01009-03035

v.

Virginia Pocahontas No. 2 Mine
VIRGINIA POCAHONTAS COMPANY,
Respondent
DECISION
(

Appearances:

Marshall S. Pe·ace, Esq., Lexington, Kentucky, for
Virginia Pocahontas Company;
John H. O'Donnell, Esq., Office of the Solicitor,
U.S. Department of Labor, for the Secretary of Labor
and MSHA;
Joe. Clark, T\Tashington, D.C., for United Mine Workers
of America._!/

Before:

Administrative Law Judge Steffey

Pursuant to an order 'dated February 29, 1980, as supplemented and
amended on March 11, 1980, July 8, 1980, and September 9, 1980, a hearing
was held in the above-entitled proceeding on December 2, 1989, in Abingdon,
Virginia, under section 105 (d) of the Federal ~fine Safety and Health Act
of 1977, 30 U.S.C. § 815(d).
At the conclusion of the hearing, the parties indicated that they
wished to.file briefs. It was agreed that initial briefs would be filed
by February 2, 1981, and that answering briefs, if any, would be filed by
February 16, 1981. Counsel for the Secretary of Labor and the Mine Safety
and Health Administration filed his brief on January 29, 1981, UMWA's legal
assistant filed her brief on February 4, lg31, and counsel for Virginia
Pocahontas Company filed his brief on February 9, 1981. No party elected
to file a reply brief.

1:/

Although Mr~ Clark represented UMWA at the hearing, Ms. Joyce A. Hanula
wrote and filed UMWA's brief in this proceeding.

'

2

Issues
The issue raised by Virginia Pocahontas Company's Notic·e of Contest
in Docket No. VA 79-136-R is whether the provisions of section 103(f) of
the Act require that a representative of the miners, who accompanies an
inspector on a shift other than hi~ regularly scheduled sh~ft, be provided
with work on that shift after the· period of his participation in the inspection has ended.
The issues raised by the Petition for Assessment of Civil Penalty
filed in Docket No. VA 80-112 are whether Virginia Pocahontas Company violated section 103(f) of the Act and, if so, what civil penalty should be
assessed, based on the six criteria set forth in section llO(i) of the Act.
Findings of Fact
My decision in this proceeding will be based on the findings of fact
set forth below. All of the briefs contain either a statement of the facts
or proposed findings of fact. I believe that my findings include all the
essential facts which are discussed in the parties' briefs.
1.
Virginia Pocahontas Company is an affiliate of Island Creek Coal
Company. It was stipulated that Virginia Pocahontas is a large company and
that payment of civil penalties would not affect its ability to continue in
business (Tr •. 6-7).

\

-

2.
It was further stipulated that Virginia Pocahontas demonstrated
a good-faith effort to achieve rapid compliance after the cftation here
involved was issued (Tr. 7).
3.
The No. 2 Mine involved in th.is proceeding was closed on August 9,
1979, and had not been reopened at the time the hearing was held on December 2,
1980 (Tr. 7; 18). The mine was closed because it had become uneconomic to
continue producing coal at that location (Tr. 168).
4.
The miners at the No. 2 Mine were represented by UMWA's Local 1568
whose president in 1979 was Joe Clark. On Harch 9, 1978, or about the time
that the 1977 Act became effective, Local 1568 had a meeting for the purpose
of designating the persons who would walk around with MSHA's inspectors for
the purpose of fulfilling the rights given to the miners under section 103(f)
of the Act. The members of Local 1568 decided that the safety committeemen
who are elected for 2-year terms should also be designated as their representatives under section 103(f) for the purpose of accompanying inspectors
making mine inspections (Tr. 10; 14; 22; 38).
5.
~oe Clark, in addition to being president of Local 1568, also
acted as a safety committeeman, and was employed as an electrician at the
No. 2 Mine (Tr. 11; 61). The union can elect as many as five committeemen,
but Local" 1568 concluded that three committeemen were sufficient for discharging the union's functions at the No. 2 Mine, especially since, even at
the largest mines, only three committeemen are generally elected (Tr. 29).

3

The other two connnitteemen in April 1979 at the No. 2 Mine were Randy Skeens
and Clarence Auville (Tr. 12-13; 61).
6.
The position of safety connnitteeman requires the miner holding
that position to be willing to spend time investigating and checking into
complaints made by other miners (Tr. 14; 38). The majority of miners do not
want to be safety committeemen and it was, in fact, difficult to find three
miners at the No. 2 Mine who would accept the responsibilities of being
safety committeemen (Tr. 10-11; 46; 96). All three of the safety committeemen (Clark, Skeens, and Auville) at the No. 2 Mine worked on the midnight-to8 a.m~ shift (Tr. 13).
7.
The fact that all three safety committeemen were employed on the
midnight shift resulted from the fact that most miners who were interested
in serving as safety committeemen were young. Host miners prefer to work
on the day shift. The result of that preference, according to Joe Clark, is,
that the oldest and most experienced miners are concentrated among the dayshif t employees. The youngest men, therefore, are generally assigned to the
midnight shift and their willingness to accept the position of safety committeeman resulted in their being selected as the miners' representatives to
fulfill their right under section 103(f) to walk around with MSHA inspectors
(Tr. 13; 47-48).
8.
MSHA inspectors examine mines on all working shifts, but the majority of inspections occur on tl).e day shift (Tr. 32-34; 111). Since the membership of Local 1568 had decided·that safety committeemen should perform the
walk-around duty of the miners' representative under s·ection 103 (f), and
since all three of the safety committeemen worked on the midnight-to-8 a.m.
shift, it was necessary for the safety committeemen to report for work on
the day shift in order to carry out their responsibilities of walking around
with inspectors. The reporting of a midnight shift employee as the miners'
representative on the day shift created problems for both the miners' representatives and management. The problems created from the standpoint of the
miners' representative are discussed in the next nine findings of fact.
9.
The facts which brought about the legal issue raised by Virginia
Pocahontas Company's Notice of Contest resulted when Clarence Auville, a
miners' representative who normally worked on the midnight shift, reported
for work at 7:00 a.m. on Monday, April 23, 1979, for the purpose of accompanying an MSHA inspector during a regular inspection (Tr. 65; 67). Auville
asked for work before the inspector began his examination of the mine, but
that request was refused (Tr. 68). Auville sat from 7 a.m. to 9 a.m. waiting
for the inspector to start his examination of the mine (Tr. 69). Auville
then accompanied the inspector from about 9 a.m. to 12:30 p.m. and earned
3-1/2 hours of pay, but the assistant mine foreman, Roger Hale, refused to
give Auville any _work to earn the remaining 4-1/2 hours required for completing an' 8-hour shift (Tr. 69). Auville testified that ne~ther Hale nor
Ward, the mine superintendent, explained to him that he would not be paid
at all except for the actual time he accompanied the inspector (Tr. 85).

4

10.
Auville was told by the inspector on Monday, April 23, that the
inspector would not be making an inspectipn on Tuesday, April 24 (Tr. 86-87) .•
Therefore, Auville reported for work at midnight on Honday, April 23, to
work his regular shift which began at 12:01 a.m. on Tuesday, April 24
(Tr. 70). Auville thereafter reported for work on the day shift on both
Wednesday and Thursday, April 25 and April 26, 1979. He walked around
with the inspector for 4-1/2 hours on each of those days and was given no
work to complete an 8-hour shift on either day (Tr. 71-73). Auville had
to report for work on Thursday, April·26, at midnight in order to obtain
any pay for his fifth day for the week of April 23 through April 27 because
the inspector worked for 16 consecutive hours and made two consecutive inspections covering two 8-hour shifts, namely the 7 a.m.-to-3 p.m. shift and
the 4 p.m.-to-midnight shifts on April 26, 1979. A miners' representative
other than Auville accompanied
the inspector during his inspection conducted
I
on the 4-to-12 shift on Thursday (Tr. 87; 111).
11.
The inspector's failure to work on April 24 and the inspector's
working of two consecutive shifts on April 26 caused Auville's work pattern
for the week of April 23 through April 27, 1979, to be as follows:
DAYS WORKED
SHIFT WORKED

April 23
Monday

12: 01 a. Iil. to
8:00 a.m.
7:00 a.m. to
3:00 p.m.

April 24
Tuesday

April 25
Wednesday

April 26
Thursday

Regular
8 hours

Regular
8 hours
103(f)
3-1/2 hrs.

April 27
Friday

103(f)
4-1/2 hrs.

103 (f)
4-1/2 hrs.

4:00 p.m. to
12:00 midnight
The tabulation above shows· that Auville had to go home about 1 or 2 p.m. on
Monday, April 23, and return to work by midnight of the same day, or 10 hours
later, in order to earn 8 hours of pay for Tuesday, April 24. Auville had
to do the same thing on Thursday, April 26, that is, leave the mine at
1 or 2 p.m. and return at midnight, in order to earn 8 hours of pay for Friday
because of the inspector's decision to work two consecutive shifts on Thursday
(Tr. 86-87; 111).
12.
Auville testified that he did not actually realize that management
would pay him only for the time spent with the inspector on April 23, April 25,
and April 26 until he received his pay check for that period and found that he
had not been paid for 11-1/2 hours which was the difference between the time
he had accompanied the inspector on those 3 days and the time he would have
earned had he worked three 8-hour shifts (Tr. 85-86). After Auville realized
that he would not receive full pay for 8 hours of work when he accompanied
an inspector, he refused thereafter to accept the assignment of accompanying
inspectors (Tr. 90).

5

13. Upon receiving the check paying him' for less than 8 hours of work
on°3 days, Auville went to an MSHA office and explained what had happened.
USHA considered his complaint to be a ._reql}est for an inspection under
section 103(g) of the Act. The result was that an inspector named Jessie D.
Harrison inv.estigated the matter and on August 17, 1979, wrote Citation. No.
696068 which alleged that Virginia Pocahontas Company had violated section
i03(f) of the Act by faiiing to pay Clarence Auville for the 11-1/2 hours
that he did not spend in accompanying an inspector on the 3 different days
described in Finding No. 11 above (Tr. 76; 94; Exhs. 1, 2, and 3).
14.
When a miners' respresentative who normally works on the midnight
shift gets paid for accompanying an inspeator for only 4 or 5 hours on the
day shift, the miners' representative either has to be given supplemental
working opportunities to earn the remaining 3 or 4 hours of pay on the day
shift, or he must report at the mine at the commencement of the midnight
shift and work long enough to earn the difference between.the amount he gets
paid for actually accompanying the inspector and the amount he would have
·earned if he had not reported on the day shift' for the purpose of accompanying an inspector.
15.
If management declines to provide supplemental work on the day
shift for the miners' representative to earn a ~ull 8 hours of pay, the
miners' representative is placed in a quandary. Since the miners' representative h~s to report for work at 7 a.m. for the day shift, he cannot
come in late and work the las-1: 4 hours of the preceding shift without incur-,
ring an overlap of 1 hour between the time the midnight shift ends at 8 a.m.
and the time the day shift begins at 7 a.m. (Tr. 12). Of course, the miners'
representative can avoid the 1-hour overlap by reporting to the mine for work
at the beginning of the midnight shift'. He is generally finished with his
walk-around duties on the day shift at 1 or 2 p.m. because the inspectors
normally work approximately 4 hours after starting an inspection about 9 a.m.
(Tr. 69-72). About 2 p.m., therefore, the miners' representative has a
choice of either (1) remaining at the mine for 10 hours (from 2 p.m. to midnig~t) or (2) driving back to his home, sleeping for a few hours, and driving
back to the mine at midnight to finish out the amount of time he needs for
earning the 8 hours of pay which he was not given an opportunity to earn
during the day shift. Regardless of which method he elects to utilize for
reporting to the midnight shift to -earn the remaining 4 hours of pay, he will
find himself obligated to report for work at 7 a.m. as the mi1lers' representative on the next day shift which starts only 3 hours after he has just
finished earning 8 hours of pay at 4 a.m. for the time he couldn't work on
the preceding day shift.
16.
~alvin Ward, who was superintendent of the No. 2 Mine in April 1979,
testified that a miners' representative who normally.works on the midnight
shift, but who is asked to report for work on the day shift to walk around
with an inspector and knows that he will be allowed· to earn pay only for the
time he actually spends with an inspector, can earn the time he knows he will
lose on the day shift by reporting to work at 4 a.m. on his regular midnight
shift and working for 4 hours on the midnight shift to compensate for the fact

- . ,,t

.i.. - '.'

I

6

that he cannot earn a full 8 hours of pay on the day shift when he walks
around with an inspector (Tr. 123; 161). The superintendent believed that
coming in at 4 a.m. on the midnight shift would be a desirable way for the
miners' representative to earn his full 8 hours each day because he could
work the last part of the midnight shift and the first part of the day
shift(Tr. 162). The difficulty with Ward's suggestion is that Exhibit A in
this proceeding shows that the miners~ representative is paid for from
2 to 4-1/2 hours for walking around with an inspector. In order for a miners'
representative to implement Ward's suggestion, ha would have to know in
advance the number of hours which a prospective inspection on the day~hif t
will take. Even the inspector could hardly give an exact estimate of the
amount of time he will use to make a given inspection. Moreover, the superintendent's suggestion does not take into account the overlap of 1 hour of
the midnight shift and the day shift caused by the fact that the midnight
shift ends at 8 a.m. and the day shift begins at 7 a.m. (Finding No. 15, supra).
17.
The two miners' representatives, Clarence Auville and Joe Clark,
who experienced a loss of pay as a result of walking around with an inspector
because of management's refusal to assign them with work for the balance of
the day shift not .used in walking around with an inspector, stated that they
believed that it would be hazardous for them to make up the lost time on their
regular midnight shifts on a weekly basis because they would necessarily
become fatigued by failure to get a proper amount of sleep with the result
that they could become inattentive at a given time and cause an injury to
themselves or to .other r:iiners,.. (Tr. 14; 16; 50-51; 7 5; 99). Finding Nos. 11,
15, and 16 above show that Auville and Clark correctly evaluated the fatigue
factor. In addition to the fatigue factor, there are economic considerations.
When a miner reports for work to earn 8 hours of pay on a single shift, he
makes one round trip from his home to the mine. When a miner has to report
to work twice to earn 8 hours of pay, he has to burn .twice as much gas and
spend twice as much time in his car commuting to and froM work as he would
ordinarily incur if he were able to earn 8 hours of pay on a single shift.
18.
The mine superintendent testified that management is exposed to
problems when an employee who normally works on the midnight shift reports
for work on the day shift to walk around with an inspector. The superintendent explained that maintenance work is done on the midnight shift and that
it is important that equipment be repaired, that rock dust be applied, etc.,
while the equipment is idle so that the mine will be in proper condition
for active mining to go forward on the day shift. The superintendent said
that it is difficult to find employees who are willing to work on the midnight shift. Therefore, when a miners' representative is taken from the
midnight-shift to accompany an inspector, it is more difficult to find a
replacement for him than it would be to find a replacement for a miners'
representative whQ is taken from the day shift to accompany an inspector
(Tr. 125-126; .130-131). Auville performed general inside work and vulcanized belts, amo'ng other things. Belt vulcanizing is a job requiring two
people. When one member of the vulcanizing team is unavailable, the other
member cannot vulcanize belts by himself (Tr. 79). The superintendent stated
that that when work is given to a midnight-shift miners'. representative on
the day-shift to make up a full 8 hours of pay, it is difficult to find work

...L

' } t·
.~" ·',~

7

for him to do which will not become the subject of an objection by a dayshift employee who would rather do the work assigned to the midnight-shift
employee than do the work the day-shift employee normally performs(Tr. 129;
160; 171).
19.
The superintendent said that another problem created by the union's
assignment of a midnight-shift employee to walk around on the day shift is
that excessive time is lost in traveling in and out of the mine. The superintendent stated that the miners' representative reporting on the day shift
at 7 a.m. must first travel to a given job in the mine so that he will have
work to·do until the inspector is ready to commence his inspection. When
the inspector is ready to go underground, the miners' representative has to
travel back out of the mine to be ready to accompany the inspector underground at about 8:30 or 9 a.m. The miners' representative then has to travel
out of the mine with the inspector when the inspector has finished making his
examination. After the inspector has completed writing citations or other
work on the surface, the miners' representative again has to travel back underground to the place where he has been assigned work to complete the 8 hours
of pay which he wants to earn (Tr. 129-130).
20.
Joe Clark and Clarence Auville both doubted the validity of the
superintendent's claims. Clark pointed out that the same number of trips·
in and out of the mine are required for a miners' representative to do his
regular work and walk around with the inspector regardless of whether the
miners' representative is tak~n from the day shift or the midnight shift
(Tr. 177). Clark also disputed the superintendent's claim that management
would find it any harder to replace a person who is assigned to accompany an
inspector from a day shift than it is to find a replacement for a midnightshif t employee who accompanies an inspector on the day shift. Clark says
his disagreement with the superintendent comes from the fact that one of
management's greatest complaints about absenteeism is that when a miner,
such as a shuttle-car operator, fails to report for work on a production
shift, his absence requires the assignment of a "stranger" to take his place.
The production crew is unused to the way the replacement shuttle car operator
performs his work and that is somewhat disruptive to the smooth operation
of the entire crew. Clark contended that when a midnight-shift employee
reports for work on the day shift, the regular day-shift crew is not disrupted
by having to be without one of its regular members while that person becomes
a miners' representative to walk around with an inspector on a given day
(Tr. 179-180). Auville claimed that his vulcanizing work was done on a
sporadic basis so that no problems were created if vulcanizing was not done
for several shifts. Moreover, Auville claimed that much of the vulcanizing
work was done by employees of a firm which had contracted to do vulcanizing
work for Virginia Pocahontas Company (Tr. 88-89).
21.
Management claims that the union did not keep it informed as to the
identity of the person who had been designated to accompany inspectors each
day (Tr. 127; 132; 157; 165; 172). The result.was that management sometimes
found a haulage vehicle abandoned by its regular operator while that operator
fulfilled his right to walk.around with an inspector (Tr. 155; 165). The
union claims that it began to advise management in advance as to the identity

' ~" oq
,.} '

..4.

8

of the person who had been assigned to be the miners' representative for
the purpose of accompanying inspectors (Tr. 15-16). The union's witness,
Joe Clark, claims that he thought he had an agreement with management under
which the three safety committeemen, who normally worked on the midnight
shift, would report to work on the day shift for a week at a time for the
purpose of walking around with the inspectors. Clark said he thought
management understood that the three safety committeemen, (Clark, Skeens,
and AuvilleJ would ~otate on a week~y basis so that each of them would work
for 1 week on the day shift. According to Clark, the union agreed to
provide mine management on Friday with the name of the miners' representative who would accompany the inspector during the coming week (Tr. 31; 52).
22.
Ward, the mine superintendent, claims that the union did not keep
him regularly informed as to the identity of the miners' representative and
that considerable confusion resulted from the union's failure to keep him
regularly informed (Tr. 132). Ward introduced as Exhibit A a one-page list
of data concerning regular inspections made at the No. 2 :Hine for t:he perir.d
extending from April 3, 1979, through May 3, 1979. That list shows that
regular inspections may not have occurred every day and that a miners' representative was not always available to accompany the inspector. Moreover,
Exhibit A shows that during a single month, five different miners were used
as miners' representatives to accompany inspectors who were making regular
inspections (Tr. 133). Only one of the five different miners' representatives
was a duly elected safety committeeman and he was Clarence Auville who was
the miners' representative on•April 23, 25, and 26, 1979, as previously described in Finding Nos. 9, 10; and 11, supra.
23.
The other four miners' representatives during the period from
April 3 to May 3 were Mary Griffith, Lynn Agent, Michael Lester, and Roger
Elswick. Three of the aforementioned miners' representatives (Griffith,
_Agent, and Lester) normally worked on the day shift and one, Roger Elswick,
normally worked on the night shift, or from 4 p.m. to midnight (Tr. 136;
144; 146; 175). Clark explained the union's failure to use the thre~ aforementioned safety committeemen (Clark, Skeens, and Auville) during the period
from April 3· to May 3 by stating that he and Skeens were unavailable at that
time and that the other four people (Griffith, Agent, Lester, and Elswick)
were appointed as members of the safety committee on a temporary basis so
that they could substitute for the three safety committeemen who would
normally have been expected to walk around with inspectors.during that period
(Tr. 25-27; 37; 55-57; 175-176). Clark explained that he has authority, as
the union's president, to appoint substitute miners to fill the positions of
members of the safety committee. If the temporary appointments l_ast for more
than 90 days, the union is required to hold a special meeting .for the purpose
of electing new members of the safety committee (Tr. 11; 29-30).
24.
Clark also stated that miners' representatives are expected to be
knowledgeable miners with ability to do such things as check air velocity
and make methane readings so that they will know whether inspectors are
correctly inspecting for such conditions. He stated that some miners who
asked to be given the opportunity to walk around with inspectors could not

9

be allowed to continue acting as ·the miners' representative b.ecause they
were not experienced enough to take an active part in mine examinations
(Tr. 188-189).
25.
There is no requirement in either the Act or the Bituminous Coal
Wage Agreement that the miners' representatives for purposes of accompanying inspectors under section 103 (f) of the Act must be members of the mine
safety committee. Section 103(f) and the Wage Agreement do not prohibit a
member of the safety committee from being a miners' representative for the.
purpose of walking around with inspectors (Tr. 60).
Consideration of Parties' Arguments
Discussion of Specific Issue Raised by Notice of Contest
All the issues raised in this case depend upon an interpretation of the
requirements of Section 103(f) of the Act which provides as follows:
(f) Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by his
miners shal~ be given an opportunity to accoclpany the Secretary or
his authorized representative during the physical inspection of any
coal or other mine made pursuant to the provisions of subsection (a),
for the purpose of aiding such inspection and to participate in the
pre- or post-inspection·~onferences held at the mine. Where there
is no authorized miner representative, the Secretary or his authorized
representative shall consult with a reasonable number of miners concerning matters of health and safety in such mine. Such representative of miners who is also an employee of the operator shall suffer
no loss of pay during the period of his participation in the inspection made under this subsection. To the extent that the Secretary
or authorized representative of the Secretary determines that more
than one representative from each party would further aid the inspection, he can permit each party to have an equal number of such
additional representatiyes. However, only one such representative of
miners who is an employee of the. operator shall be entitled to suffer
no loss of pay during the period of such participation under the provisions of this subsection. Compliance with this subsect{on shall
not be a jurisdictional prerequisite to the enforcement of any provision of this Act.
The issue raised by contestant's Notice of Contest is whether it is
obligated under section 103(f) to compensate a miners' representative for
8 hours of pay on the day shift when such representative accompanies an inspector on the day shift instead of on the midnight shift to which such representative is normally assigned. Contestant ~rgues in its brief (pp. 5-6)
that it did not violate section 103(f) when it failed to provide Clarence
Auville, a miner assigned to the midnight shift, with a total of 11-1/2 hours
of supplemental work on three different day shifts to make up for the fact
that Auville only spent from 3-1/2 to 4-1/2 hours each day in accompanying
an inspector on the day shift.

10

Contestant· argues that the foregoing contention is clearly supported
by the lang· 1ge of section 103 (f) which provides that "Such representative
of miners wt., is also an employee of the operator shall suffer no loss of
pay during the period ~ his partipation in the inspection m·ade under this
subsection" r[mphasis supplied by contestant.).
Contestant argues that
section 103(i) only requires that the miners' representative suffer no loss
of pay for the actual time he spends accompanying the inspector.
Contestant
correctly states that Auville was paid for the time he actually spent with
the inspector_and claims that i\uville, i,.f he had chosen to do so, could have
worked on his regular midnight shift to make VP the dif fcrence in pay between an 8-hour shift and the amount of pay h~ earned while accompanying
the inspector.
Contestant's brief (p. 6) stresses, in support of the foregoing argument,
that it is important to recognize what section 103(£) does not provide.
It is
contended that the section (1) does not provide that the miners' representative
be an elected member of the "Union safety committee, (2) does not provide that
the miners' representative must receive special training to b-;;:-qualified to
accompany an inspector, (3) does not provide that mine management alter work
schedules to accommodate a particular miners' representative who is chosen
by the miners, and (4) does not provide that m.anagement provide work to a
miners' representative on a~y shift other than his or her regularly scheduled
shift.
U:MWA's brief (p. 4) and the Secretary's brief (p. 15) emphasize different
words in the same portion of ·'section 103(f) cited by contestant to reach a
conclusion exactly opposite from the position taken by contestant. Specifically, they read the pertinent language as follows:
"Such representative of
miners who is also an employee of the operator shall suffer no loss ~ ~
during the period of his participation in the inspection made under this
subsection" [Emphasis supplied by UHWA and Secretary.].
UHWA argues that it
is apparent from the language of section 103(f) that the right to compensation
is coextensive with the right to accompany the inspector.
The Secretary points
out that Congress could have written that a miners' representative would be
paid for the time he or she accompanied an inspector, but instead Congress
chose a much broader provision than that and stated that the miners' r~pre
sentative would suffer no loss ~ ~·
As a matter of fact, section 103(f) is silent even as to contestant's
concession that management is obligated to furnish work to the miner "on any
shift other than his regularly scheduled shift" (Contestant's brief, p. 6).
If the pertinent language from section 103 (f) is interpreted by placing
emphasis on the words "during the period of his participation in the inspection made under this subsection", then that language is just as restrictive
against paying the miners' representative who accompanies an inspector on the
representative's Fegular shift as it is against paying the miners' representative who accompanies an inspector on a shift other than the representative's
regular shift. It is only common sense that Congress would not have provided that the miners' representative "shall suffer no loss of pay during the
period of his participation" if it had expected that the miner would not be
allowed to work for the remainder of a shift so as to be paid for the balance
of a given 8-hour shift not spent in walking around with an inspector.

11
Contestant's willingness to concede that it is obligated under section
103(f) to provide work for a miners' representative who accompanies an inspector on his or her regular shift, despite the fact that there is no express
provision to that effect in section 103(f), indicates that section 103(f)
should be interpreted to require contestant to provide the miners' representative with work when he or she accompanies an inspector on a shift other than
his or her regular shift, unless there are compelling reasons showing that
providing such work is an unreasonable requirement. Therefore, contrary to
the arguments in contestant's brief (pp. 4-5) to the effect that much of the
testimony in this case was irrelevant, it becomes necessary to examine the
safety ramifications resulting from contestant '.s refusal to provide the
miners' representative with work on the day shift when such representative
norm~lly works on the midnight shift.
The Miners' Representative and Membership in Union Safety Committee
While it is true, as contestant argues (brief, p. 6), that the miners'
representative who accompanies an inspector is not required by the provisions
of section 103(f) to be a member of the union safety committee, the evidence
in this proceeding shows that the miners at contestant's mine decided that the
members of the union's safety committee should be the miners' representatives
for accompanying inspectors (Finding Nos. 4 and 5, supra). While i t is also
true, as contestant argues (brief, p. 6), that mine management is not.required by the provisions of section 103(f) to alter work schedules to accommodate use of a particular miµers' representative who is chosen by the miriers,
that was the necessary result €t contestant's No. 2 Mine when it turned out
that the members of the union safety committee were all miners regularly
assigned to work the midnight shift at contestant's No. 2 Nine (Finding No. 6,
supra). The fact that the union's safety committee members were all midnightshift employees made it necessary for the three. safety committee persons·, for
a week at a time on a rotation basis, to report for work on the day shift in
order to accompany inspectors (Finding No. 7, supra).
Adverse Effects on Miners' Representatives of Contestant's Refusal To
Provide Work on Day Shift
As indicated above, while section 103(f) does not specificaliy require
management to alter work schedules so that midnight-shift employees may earn
payment for 8 hours of work on the day shift, when such midnight-shift employees accompany inspecto:r;s on the day shift, management's refusal to alter
work schedules so that those midnight-shift employees could earn compensation
for 8 hours on the day shift subjected them to many adverse conditions and
circumstances (Finding No. 8, supra).
Since contest.ant's No. 2 mine releases methane, it was a mine which was
subject.to daily inspections, but the .miners' representative could not be
certain that a given inspector would necessarily make an inspection each day.
Therefore, the miners' representative frequently had to transfer back to his
regular midnight shift and work from midnight to 8 a.m. after having accompanied an inspector on ~he day shift. That occurrence subjected the midnightshift employee to a 10-hour interval between leaving the mine on the day
shift and having to report back to the mine for the beginning of the next
midnight shift (Finding Nos. 9, 10 and 11, supra).

12

The lack of sleep and the extra commuting time and expense associated
with ·switching back and forth between day and midnight shifts during a
given week is inherent in a midnight-shift employee's willingness to act
as the miners' representative ·for purposes of accompanying inspectors under
section 103(f) and the miners' representative in this proceeding did not
object to having to switch between midnight and day shifts when he knew
that the inspector would not be at the mine on a given day shift (Finding
No. 11, supra).
The miners' representatives in this proceeding did take the position,
however, that it would be unsafe for them to be required to work on the
midnight shift and the d~y shift during each 24-hour period in order for
them to make up on the midnight shift for the balance of time they did not
spend accompanying inspectors on the day shift. The evidence showed that
contestant's suggestion, that the miners' representative could work from
4 a.m. on the midnight shift to 8 a.m. so as to make up for failure to earn
a full 8 hours of pay from accompanying inspectors on the day shift, was
impracticable and unworkable for at least two reasons. There is an overlap
of 1 hour between the time the midnight shift ends at 8 a.m. and the time
the day shift begins at 7 a.m. Therefore, any miner who tried to work the
end of the midnight shift and the beginning of the day shift would automatically lose an hour from one or the other of the shifts. If one assumes
that the overlap could be worked out by some sort of agreement with management, one is then confronted with the fact that the midnight-shift employee
would· have to know in advance how much time a given inspection on the subsequent day shift would take 1n order to work the proper number of hours on
the midnight shift to balance.exactly with the number of hours the midnightshift employee would actually spend in accompanying the inspector on.the day
shift (Finding Nos. 14, 15 and 16, supra).
The preceding paragraph explains why a midnight-shift employee reporting
to work on the day shift to accompany an inspector cannot work on the midnight
shift immediately preceding the day shift in order to make up the balance of
time that his period of accompanying an inspector fails to equal a full 8-hour
shift. There is one other way, of course, that the midnight-shift employee
could make up for management's refusal to assign him or her work to do on
the day shift before and after the inspection. That other alternative would
be that the midnight-shift employee would report to work at 12:01 a.m. on the
day after he or she has accompanied an inspector ·on the day shift. He or she
would then know that on Monday, for example, he or. she had spent 4 hours
accompanying the inspector. By coming in at 12:01 a.m. on Tuesday, he or
she could work an additional 4 hours in order to receive pay for 8 hours of
work. That procedure would work for 4 days (Tuesday through Friday), but
since no work is normally done on Saturday, the midnight shift employee
would have to come in on Sunday night_ and go to work at 12:01 a.m. on Monday
in order to earn the balance of the 8-hour day shift he or she was not permitted to earn on the preceding Friday. The greatest disadvantage from coming
in at midnight each night to make up for work not awarded on the day shift
is that the miners' representative would become completely exhausted by the
end of the week because he would have to come to work twice each day to earn
one day of pay and he would each day have only about 3 hours between the
completion of the balance of an 8-hour shift on the midnight shift before
he would be obligated to report for wbrk at 7 a~m. on the day shift in order
to be ready to accompany ail inspector on the day shift •

. :, Ott

.....

13
When the .above-described adverse effects of working both the midnight
and day shifts on a regular basis are-.considered, along with the adverse
economic effects of having to report to work twice each day to ..earn pay for
a single 8-hour shift (Finding No. 17, supra), it is obvious that contestant
:failed to provide the mi~er·s' representative with a viable alternative for
suffering no loss of pay ~hen c.ontestant advised the miners' repres.entative
that he could make up the balance of an 8-hour shift by working on the midnight shift long enough to earn the balance in pay which the miners' representative was not permitted to earn on the day shift.
The Miners' Representative and Special Training
Although contestant's brief (p. 6) argues that section 103(f) does not
provide that the miners' representative must re·ceive special training,
I -beli·eve that contestant is in error in making that allegation.
Section
103(f) states that a miners' representative is ~o be given an opportunity to
·accompany an inspector "for the purpose of aiding such inspection and to
participate in pre- or post-inspection conferences held at the mine."
A miners' representative who has no knowledge of proper health and safety
practices would not be an "aid" to an inspector and would not be able to
"participate in pre- or post-inspection conferences". The evidence in this
proceeding sho~s that the union made an effort to select knowledgeable persons
to act as miners' representatives, that the union wanted the miners' representatives to take an active role in the inspections, and t~at the union
refused to permit some miners.· to continue acting as miners' representatives
if their lack of experience rendered them ineffective in that role (Finding
No. 24, supra).
The unavailability of some of the union safety committee persons made
it necessary for the union to appoint miners as temporary members of the
safety connnittee •. Such temporary appointments may have resulted in use of
some miners' representatives who lacked ~he training and experience which
the :union preferred, but was unable to require in every instance (Finding nos.
22 and 23, supra).
Adverse Effects to·Management Attributable to Use of Midnight-Shift
Employees as Miners' Representatives on Day Shift
Since it was contestant's position ~hat the equities of providing work
for midnight-shift employees acting as miners' representatives on the day
shift has nothing to do with interpreting section 103(f), contestant's brief
aoes not discuss the fact that contestant's evidence showed its dislike for
having to provide work on the day shift on a regular pasis. Contestant's
superintendent testified that he did not mind providing work for a midnightshift e.mployee on. the day shift when a midn:i,ght-shi~t employee acted as a
miners' represe~tative on the day shift on ap infrequent basis, but he said
that he could not tolerate that practice on a consistent basis (Tr. 128; 139;
158).
The superintendent described several problems created for management by
the use of a midnight-shift employee as a miners' representative on the day
shift. The superintendent said that it was difficult to find employees to
work on the midnight shift and that when a midnight-shift employee reported
for work on the day shift, the maintenance work did not get done while the

.i. . ; U'{ '
•.

I

14
mine was idle hecause of the difficulty of finding an employee to replace
the midnight-shift employee who was absent because of his reporting as
miners' representative on the day.shift (Finding No. 18, supra). The
superintendent also objected to the number of trips T...,·hich the miners' representative had to make in and out of the mine to do work until the inspector was ready to commence his inspection and to retuu1 to work after the
inspector had ·finished his inspection (Finding No. 19, supra).
The union's witnesses, however, cast doubt on the validity of management's claims by contending that there was no difference in the number of
trips in and out of the mine which had to be-made by the miners' representative to do normal mining work and accompany the inspector regardless of
whether he was performing the assignment of a miners' representative on his
regular shift or on a shift other than his regular shift. The union also
claimed that management was in a better position to use a midr; .·!-it-shift
employee on the day shift as miners' representative than it was to use a
member of a production crew because of management's dislike for having to
replace a regular crew member with a "stranger" who did not normally work
with a given production crew (Finding No. 20, supra).
Failure To Provide Work on the Day Shift for a Midnight-Shift Emplovee Who
Reports for Work on the Day Shift as a Miners' Representative for
Accompanying Inspectors under Section 103(f) Is a Violation of Section 103(f)
My review above of the ptovisions of section 103(f) leads me to conclude
that contestant is obligated to provide any employee who accompanies an
inspector on any shift with work on that shift so that the miners' representative may earn a full 8 hours of pay. As I have already noted, .section ·103(f)
does not specifically require management to provide work for the balance of
any shift if the miners' representative on any shift does not spend 8 hours
accompanying an inspector. Contestant concedes that the provision in section
103 (f) providing that the miners' representative "* * ~·: shall suffer no loss
of pay during the period of his participation in the inspection made under
this subsection" should be interpreted to mean that the miners' representative
must be given work to make up an 8-hour shift if the miners' representative
normally works on the same shift on which the miners' representative accompanies the inspector. I conclude that contestant is required by that same
provision in section 1Q3(f) to compensate with 8 hours of pay any miners'
representative who accompanies an inspector on a shift other than the shift
to which he or she is normally assigned, regardless of whether the miners'
representative accompanies the inspector on a shift other than his or her
regular shift.
·:...

Management might be able to insist that a day-shift employee act as the
miners' representative on the day shift for carrying out the purposes of
section 103(f) if the union did not provide, as it has in this case, a
reasonable b·asis for selecting a miners' representative from the midnight
shift for the purpose of accompanying inspectors who are conducting inspections on the day shift. In this case, the union has given cogent reasons
for being unable to provide satisfactory miners' representatives from any

lflOf~

15

shift other than the midnight shift. I have already summarized those reasons
above and they need not be repeated here (Finding Nos. 4, 5, 6, and 7, supra).
I have also shown from the evidence that it is unreasonable for management
to expect the midnight-shift employee who acts as miners' representative on
the day shift to make up the balance of an 8-hour shift not earned on the
day shift while accompanying an inspector by having that miners' representative report to his regular midnight shift (Finding Nos. 14, 15, 16, and 17,
supra).
Pages 15 to 22 of the brief filed by counsel for the Secretary and MSHA
contains an excellent discussion of the legislative history and of the Commission's decision in The Helen Mining Co., 1 FMSHRC 1796 (1979). MSHA's
brief emphasizes the fact that management should not be permitted to participate directly or indirectly in the selection by the union of the miners'
representative for carrying out the provisions of section 103(f). MSHA's
brief notes that contestant's refusal to provide Auville, the miners' representative in this case, with work on the day shift had a chilling effect
on the willingness of miners to accept the responsibility of accompanying
inspectors. In fact, Auville testified that he refused to act as miners'
representative at all after management refused to pay him for a full 8-hour
shift on the 3 days which he spent in accompanying inspectors on the day
shift (Finding No. 12, supra).
In the Helen Mining case, supra, the Commission held that management
is obligated to assign a miner$ 1 representative to accompany each inspector,
or group of inspectors, who come on the same day to conduct regular inspections in different parts of the same mine. The Commission's decision was
affirmed by the Ninth Circuit Court of Appeals on May 18, 1981, in Magma
Copper Co. v. Secretary of Labor,
F.2d
(No. 79-7687). On page 2157
of the advance copy of the decision, the court stated:
The legislative history and the statute itself could not be
clearer, however, as to the purposes of the legislation in general
and of the walkaround pay provision in particular. As Senator Javits
explained, the walkaround pay provision seeks to assure that miners
will exercise their right to participate in inspections. The right
of participation, in turn, attempts to increase miners' ·awareness
of safety problems as well as to provide inspectors with a guide
familiar·with working conditions in the mine. * * * The importance
of miner participation in safety is repeatedly emphasized throughout
the legislative history of the Act--"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." See S.Rep. No. 95-181,
supra, at 35, reprinted in Legislative History at 623.
The walkaround pay provisions and the participation right are
both aimed at the protection of the health and safety of miners-the single overriding purpose of the legislation. * * *
It would be self-defeating for section 103(f) to be interpreted in the
manner sought by contestant. If contestant were permitted to refuse work
on the day shift to every midnight-shift employee who reports to the dayshift as miners' representative, that miners' representative would have to

1 r, O"i

16
earn a full- 8 hours of pay by reporting to the midnight shift to earn t·he
remainder of his pay. As has. been shown above, the need to report to two
shifts each day to earn 8 hours of pay is unfair, uneconomic, exhausting,
and would inevitably result in an increase of hazards at the mine because of
the liklihood of mistakes being made by an exhausted employee who is required
to work on two shifts each day to earn pay for one shift.
In its decision 'in Magma Copper, the Commission, at page 1950, warned
against reliance on the "literal language of section 103(f)" when applying
it~ provisions to the rights granted to the miners by that section. Also
in Consolidation Coal Co., 3 FMSHRC 617 (1981), the Commission stated
(at p. 618).

* * * We are not prepared to restrict the rights afforded by that
section [103(f)] absent a clear indication in. the statutory language
or legislative history of an intent to do so, or absent an appropriate
limitation imposed by Secretarial regulation.
The courts have uniformly held that the Act is a remedial statute which
should be liberally construed (Freeman Coal Mining Co. v. Interior Board of
Mine Operations Appeals, 504 F.2d 741 (7th Cir. 1974); Ray Marshall v. Wade
Kilgore, 478 F.Supp 4 (E.D. Tenn. 1979)).
For the reasons hereinbefore given, I find that contestant violated
section 103(f) by refusing to.,give a miners' representative work on the day
shift as alleged in Citation No. 696068 dated August 17, 1979. The order
accompanying this decision will affirm Citation No. 696068.
Civil Penalty Issues
Since I have found in the preceding portion of this decision that con-testant violated section 103(f) of the Act, it is necessary that I assess a
civil penalty pursuant to the six assessment criteria given in section llO(i)
of the Act, as sought by the Petition for Assessment of Civil Penalty filed
in Docket No. VA 80-112. As to the criteria of the size of respondent's
business and whether·the payment of civil penalties will cause Virginia
Pocahontas Company to discontinue in business, it was stipulated that Virginia
Pocahontas is a large company and that payment of penal~ies will not cause
it to discontinue in business (Finding No. 1, supra). As to a third criterion of whether Virginia Pocahontas.demonstrated a good-faith effort to
achieve compliance, it was stipulated that the company had made a good-faith
effort to achieve compliance by paying the miners' representative for the
11-1/2 hours of pay he lost by accompanying an inspector after Citation No.
696068 was written (Finding No •. 2, supra). It has been my practice neither
to increase nor decrease a penalty otherwise assessable under the other five
criteria when it has been shown that the company achieves compliance in a
normal manner. The penalty is increased under that criterion if the company
fails to make a good-faith effort to achieve compliance, and the penalty is
decreased if the company shows an extraordinary effort to achieve compliance
by taking such action, for example, as stopping production to correct a
violation alleged in a citation, as opposed to cprrecting a violation alleged

in an order of withdrawal which requires production to be stopped in any
event. .Since there was normal good~faith compliance in this instance, the
penalty will not be affected by application of the criterion of good-faith
complianc~.

Exhibit No. 4 in •this proceeding is a computer printout showing
Virginia Pocahontas Company's history of previous violations. It has been
my practice to increase a penalty under that criterion if the history of
previous violations shows a violation of the section of the Act or regulations which is before me in a given case. Exhibit 4 shows that respondent
has paid a civil penalty for one prior ~iolation of section 103(f) of the
Act. Therefore, any penalty assessed in this proceeding should be increased
by $25 under the criterion of the company's history of previous violations.
The remaining criteria to be considered under section llO(i) of the Act
are negligence and gravity. Only the brief filed by counsel for MSHA discusses the civil penalty issues raised by the Petition for Assessment of
Civil Penalty filed in Docket No. VA 80-112, MSHA's brief (p. 23) argues
that the facts in this case support a finding of gross negligence. It is
said that a finding of gross negligence is warranted because the company's
violation was intentional and that its intentional
violation did not create
,
a really meritorious issue of first impression which should be subject to
only a nominal penalty as I held in my decision issued in Jewell Ridge Coal
Corp., 2 FMSHRC 2578 (1980).
The record shows that there is considerable merit to the arguments made
by MSHA's counsel. The superintendent of the No. 2 Mine at first willingly
gave work on the day shift to midnight-shift employees who reported as miners'
representatives on the day shift to accompany inspectors who were making
examinations on the day shift (Tr. 158). The superintendent justified his
change in that policy by stating that the midnight-shift employees had decided
to make a job for themselves on the day shift and that he was getting complaints from the day-shift senior employees about having midnight-shift
employees working regularly on the day shift (Tr._159-160). Although the
superintendent claims that he made it clear to the union that he was going
to change his policy before he actually changed the policy (Tr. 139), the
union's president insisted in rebuttal testimony that management had specifically agreed to allow the three safety committeemen on the midnight shift to
be the miners' representatives on the day shift on a regular basis and that
no advance ~arning of a change in policy was ever given (Tr. 175).
The superintendent himself agreed that he did not tell Auville of the
change,in policy until Auville reported for work on the day shift on April 23
and was told by the superintendent that he would not be given work on the
day shift (Tr. 161}. The mine superintendent showed considerable pride in
having stopped the midnight-shift employees from reporting as miners' representative on the day shift when he was gsked the following questions at
transcript page 163:

·'·(l(•
.....
'
'

18

Q
Now, after you declined to let Mr. Auville make up his
time, did everybody after that get paid?
In other words, after it happened to Mr. Auville, did
you work out some kind of an arrangement whereby this matter of
their not getting paid was taken care of?
A
I can't recall a~fbody after Mr. Auville doing it. And
if somebody felt, you know, that he would want to do it occasionally,
I didn't complain about it.
So, apparently you got the p-ractice of switching over on
Q
a regular basis stopped after April 26th [the last day Auville
worked on the day shift and was not paid for it]?
A

Yes, sir, I sure did.

It should be borne in mind that the union's president regularly worked
on the midnight shift. Therefore, the ~nion's president left the mine each
morning at 8 a.m. Since the working hours for the day shift began at 7 a.m.,
there is every reason to believe that the superintendent was at the mine
also by 8 a.m. each day. There is no apparent reason why the superintendent
could not have worked out an agreement with the union's president to the
effect that he was goi~g to raise an issue of interpretation of section 103(f)
under which he would refuse to pay a midnight-shift employee who reported as
the miners' representative on ,,the day shift.
If an advance agreement had been worked out, the midnight-shift employee
could have been warned in advance of the change in policy and he could have
worked as miners' representative on the day shift for 1 day and could, under
protest, have worked on the next midnight shift to make up any time he was
not permitted to earn on the day shift. If management had followed the aforementioned procedure, it could have raised the issue of first impression before
me in this proceeding and still could have prevented the raising of the issue
from having any severe effects on the miners' willingness to act as miners'
representatives under section 103(f) while the legal issue was being adjudicated.
The failure of the superintendent to explain to Auville in advance, that
there would be a change in providing work ori the day shift for the midnightshift employee who was reporting to work on the day shift as miners' representative, unnecessarily caused Auville to work for 3 days without getting
paid when Auville's working only 1 day would have been sufficient for the
purpose of raising an issue of first impression. The evidence, therefore,
supports a. conclusion that Virginia Pocahontas Company was unnecessarily
harsh in its abrupt change of policy insofar as its treatment of Auville
was concerned. In.such circumstances, I agree with MSHA's counsel that there
was a high degree of negligence associated with Virginia Pocahontas' violation
of section·l03(f).
MSHA's brief (p. 24) contends that the violation of section 103(f) was
serious because Auville refused to act as the miners' representative after
failing to get paid for accompanying the inspector on three different inspections. MSHA also points out that other miners were discouraged from being
miners' representatives for the purpose of accompanying inspectors.

19
The record supports MSHA's arguments. When Auville was asked how the
miners got paid for w&lking around with inspectors after management refused
to pay him, he stated (at Tr. 90):
A

I don't know how that went.

Q

Did you do any more walking around?

A

No, not after they refused to pay me.

Q

You didn't do any more?

A

No.

As to the union's ability to obtain persons to walk around with inspectors after management's refusal to pay Auville, the union's president testified as follows (Tr. 177-178):

Q
Well, how did you arrange this after April 26, then, so that
nobody failed to get his full eight-hour pay?
A
I would have to think about that a minute. Since it's been
brought up, it might have changed a little bit.
You couldn't get anybody. People would say, ·"If I'm not
going to get paid, I'm not going to do it."
So, I would hffire to look around and find somebody. And
most of the time, I couldn't, you know, you wouldn'.t find somebody
who was qualified to do it. We just had to do the best we could.

Q

So, what you did was find somebody on the same shift--

A

Tried to, yes, sir.

Q

--so you didn't have this transfer problem?

A

Yes.

Q
And you're not aware of any instance where the person who
did the walking around either did come in early and work the previous
shift or came back in to finish up on another shift?
A
No, sir. At this point, I would say it didn't happen at
VP-2 [that is, Virginia Pocahontas Company's No. 2 Mine].
Inasmuch as Virginia Pocahontas Company's management made no effort to
avoid a serious impact on the miners' willingness to participate in inspections under section 103(f) while raising an issue of first impression under
that section, I find that the violation was serious.
MSHA's brief (p. 24) recommends that a penalty of $500 be assessed for
the instant violation of section 103(f) in view of the fact that the company
violated the section three different times at the expense of the miners'

1r,11

20
representative ·even though one violation would have been sufficient to raise
the issue brought in this proceeding. I find that MSHA's recommended penalty
of $500 is supported by the record and should be imposed. As I indicated
above, an amount of $25 should be added to any penalty ·otherwise assess.able
under the criterion of history of previous violations because respondent
has violated section 103(f) on one prior occasion.
WHEREFORE, it is ordered:
(A) The Notice 0£ Contest filed in Docket No. VA 79-136-R is denied
and Citation No. 696068 dated August 17, 1979, is affirmed.
(B) Within 30 days from the date of this decision, Virginia Pocahontas
Company shall pay a civil penalty of $525.00 for the violation of section
103(f) alleged in Citation No. 696068 dated August 17, 1979.

~ C. SI 1= /JJJ,71"'
Richard C. Steffey~
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:

.,,

Marshall S. Peace, Esq.,dAttorney for Virginia Pocahontas Company,
2355 Harrodsburg Road, P.O. Box 11430, Lexington, KY 40575
(Certified Mail)
John H. O'Donnell, Trial Attorney, Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, \'A
22203 (Certified Mail)
Joyce A. Hanula, Legal Assistant, United Mine h·orkers of America,
900 - 15th Street, NW, Washington, DC 20005 (Certified l!ail)

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

JUN 1 ~ 1981
Complaint of Discrimination

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF OTIS G. LAWSON~
Complainant

Docket No. VA 81-44-D
Deep Mine No. 7

v.

.

,.

PARAMONT MINING CORP.,
Respondent
DECISION AND ORDER
The Secretary moves to withdraw the captioned discrimination complaint on the ground that the complaining miner has entered into a
settlement agreement with respondent. This agreement includes a release
of the discrimination claim and a consent to ,dismissal of the captioned
.
complaint •.
Based on an independent evaluation and de ~ review of the
circumstances, I conclude the settlement ag'reement is in accord with
the purposes and policy of the Act.
Accordingly, it is ORDERED that the same be, and hereby is, APPROVED.
It is FURTHER ORDERED that respondent pay Mr. Lawson the amount of the
that subject to payment
settlement agreed upon, $3,500, forthwith a
the captioned matter be DISMISSED.

Judge
Distribution:
Covette Rooney, Esq., U.S. Department of Labor, Office of the Solicitor,
3535 Market St., Philadelphia, PA 19104 (Certified Mail)
Michael T. Heenan, Esq., Smith, Heenan, Althen, Zanolli, 1110 Vermont
Ave., NW, Washington, DC 20005 (Certified Mail)

f I
_i., • '

l ~'.

(

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER.COLORADO 80204

JUN 111981
)

SECRETARY OF LABOR, MINE SAFETY AND
)
HEALTH ADMINISTRATION (MSHA), on behalf) COMPLAINT OF DISCHARGE,
of ROBERT E. STAFFORD,
) DISCRIMINATION OR INTERFERENCE
Complainant,
)
) DOCKET NO. WEST 80-289-DM
v.
)
) MINE: Sherwood Project
WESTERN NUCLEAR, INC.,
)
Respondent.
)
)
~~~~~~~~~~~~~~~~~~~~

DECISION AND ORDER
Appearances:
Mildred L. Wheeler, Esq.
Office of the Solicitor
United States Department of Labor
11071 Federal Building, Box 36017
450 Golden Gate Avenue
San Francisco, California 94102
For the Petitioner
Kent W. Winterholler, Esq.
Parson, Behle & Latimer
Attorneys at Law
79 South State Street
P .0. Box 11898
Salt Lake City, Utah 84147
For The Respondent
Before: Judge Jon D. Boltz
STATEMENT OF THE THE CASE
On April 9, 1980, the Secretary of Labor, Mi.ne Safety and Health
Administration [hereinafter "the Secretary"], brought this action on behalf
of Robert E. Stafford [hereinafter "Stafford"] pursuant to section
105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S~C.
§ 801 et seq. (1978) [hereinafter cited as "the Act" or "the 1977 Act"].
In hiscomplaint, the Secretary. alleges that Respondent, Western Nuclear,
Inc. [hereinaft-er Western Nuclear], unlawfully discriminated against
Stafford by discharging him from his employment at Western Nuclear's
Sherwood Project on September 19, 1979, in violation of the Act. The
Secretary alleges that Stafford was engaged in activities relating to

health and safety protected by section lOS(c) of the A~t at the time of his
discharge. 1I The Secretary's complaint seeks relief on behalf of
Stafford iil the form of a finding of discrimination, an order directing
Western Nuclear to reinstate Stafford to his former position with back pay
plus interest from the time of his discharge, an order directing Western
Nuclear to clear the employment record of Stafford of any unfavorable
references relating to his discharge, and that an appropriate civil penalty
be assessed against Western Nuclear for its alleged unlawful interference
with Stafford's exercise of rights protected by section lOS(c) of the Act.
Western Nuclear, on May 5, 1980, filed an answer to the complaint
containing a gen~ral denial of all allegations and a prayer for relief
seeking recovery of costs, expenses, and attorneys fees. Pursuant to
notice, the matter came on for hearing on October 8, 1980, in Spokane,
Washington. Submission of post hearing briefs was compieted on January 7,
1981.
FINDINGS OF FACT
1. Western Nuclear is operator of an open pit uranimn mine and mill
processing plant in Wellpinit, Washington, known as the Sherwood Project.
2. Robert E. Stafford was employed by Western Nuclear at its Sherwood
Project from July 31, 1978, to September 19, 1979, the date of his
discharge.
3. Stafford was assigned to the General Mill Maintenance Department
as a general laborer where he performed various jobs, such as sandblasting,
carpentry, painting and industrial coatings. For this work, he received
$6.81 per hour.

1/ Section lOS(c)(l) of the 1977 Act, 30 U.S.C. § 815 (c)(l), reads in
pertinent part as follows:
"No person shall discharge or in any other manner discriminate against
or otherwise interfere with the exercise of the statutory rights of any
miner • • • because s.uch miner • . • has filed or made a complaint under or
relating to· this Act, including a complaint notifying the operator or the
_operator's agent, or the representative of the miners ••• of an alleged
danger or safety or health violation •.• , or because such miner ••• is the
subject of medical evaluations and potential transfer under a standard
published pursuant to section 101 or because such min.er •.. has instituted
or. caused to be instituted any proceeding under .or related to this Act or
has testified or is about to testify in any such proceeding, or because
of the exercis~ by such miner .•. on behalf of himself or others of any
statutory right afforded by this Act."

. t.)
1 ()r·11·

4. Stafford had a well-known reputation at the Sherwood Project for
an interest in state unemployment compensation and in the circumstances
under· which ·one could qualify for such assistance.
5.

Stafford also had a reputation for dis liking the task of
sandblasting~
Co-workers at the Sherwood Project generally shared that
opinion.
6. On September 17, 1979, Stafford was part of a work crew assigned
the task ·of sandblasting a mill yellowcake precipitation tank in order for
repairs to be made to its inside surface.
7. 'The work crew consisted of Stafford, Audrey Grant, Richard Miller,
Allan Rebillard and Maurice Clark. Clark was lead man for the group. He
was responsible for all procedural activities of the crew, although his
presence at the job site was only periodic and transitory. In Clark's
absence, Rebillard, as senior man, was considered by the crew to be in
charge and they followed his orders. Due to his seniority and experience,
Rebillard was instructed to insure safety.
8. The mill yellowcake precipitation tank is a metal vessel with a
height of approximately 22 feet and a diameter of approximately 28 feet.
The uppermost s~ction of the tank is cylindrical in form. At the
eight-foot mark it tapers off into a cone, dowri a 45 degree slope, to a
small drain port at the apex. The inverted cone has a vertical height of
14 feet.
In the center of the tank is a vertical shaft which rotates a network
of suspended long and short rakes. The staggered rakes agitate the
yellowc~ke solut{on by passing within 1/8 inches of the internaf surface
of the cone. The four rakes, two long and two short, are maintained in
position by a series of rake arm supports. The suppo.rts,. made of 3 1/2
inch pipe, extend at right angles from the shaft out to the internal
surfa·ce of the cone, where they are attached to. the rake blades.
9. The procedures for sandblasting the inside of the tank were
developed by Clark, as lead man, and Edward Jeffries, Mill Repair Foreman
task was to be performed by crew
and supervisor of the work crew.
members from a mobile, cage-like apparatus, known as a spider. The spider,
supported by a cable, could be positioned at varying intervals around the
tank' S circumference and then Operated along the tank IS Vertical axis, The
crew members would thereby have access to all intern-al surfaces from the
relative security provided by the spider. Procedures.would be taken to
insure worker safety from radiation hazards. Safety lines would be worn
and tended.

The

10. On the morning of September l7, 1979, preparatory work for
sandblasting the yellowcake precipitation tank was completed. Equipment
was issued and assembled. The interior of the tank was washed down.
11. That same morning, Stafford held a conversation with Sherwood
Project co-workers Craig Smith and George Hill. Segments of that
conversation dealt with Stafford's opinion that sandblasting the yellowcake

precipitation tank·was unsafe, that St.afford was considering quitting and
that getting. unemployment compensation was a concern.
·12·. Later that day, a bantam crane was used tb position the spider
apparatus inside the tank. The spider, however,· was missing certain wheels·
usea' to balance the assembly. As a result~. it, operated in a clumsy
fashion. Lead man Clark ordered that the spid'er be used. in its present
condition. Sandblasting operations commenced, with crew members taking
shift·s sandblasting from the _spider. Wheels for the spider were
subsequently located, but their installation did not perfect the stability
of the mechanism. At some point in the day, an electrical short occurred
in the spider assembly and it had to be taken from the· tank and removed
from service •. The sandblasting. operation was temporarily halted as a
result.
13. In light of the spider malfunction, the crew looked for an
alternate method to accomplish its task. Those members present, Stafford,
Grant, Miller ·and Rebillard, considered a solution proposed by Rebillard.
The suggested alternative was to use the spider as an inert b9sket to gain
access to the tank, leave the spider, climb down onto the rake assemblies
and sandblast off of· them. Safety lines would be worn and tended. The
crew me~bers agreed to the proposal.
14. Rebillard then informed Clark of the. crew member's concern for
their safety while working from the spider and of t~e plan to gain access
to the tank. At least some sandblasting was accomplished that day by the
crew utilizing this method.
15. That afternoon, Stafford again spoke with Smith, who had examined
the precipitation tank while in the area on another job. Safety, or lack
thereof, was the. subject of the conversation.

16. On September 18, 1979, the crew looked for a means of gaining
access to those areas of the tank that had not, as yet, been sandblasted.
Those members of the crew. present, Stafford, Grant, Miller and Rebillard,
talked the situation over and, at Rebillard'. s suggestion, a:greed that crew
members· would ride the rake assemblies to get into a position to sandblast.
17. Crew members procee~ed with the revised plan to complete their
assigned tasl.t. Stafford, Grant and Mi.ller took shifts of approximately 30
minutes duration, sandblasting from the rake assemblies. Each junior crew
member was in the yellowcake precipitation tank three or four times per
day. Rebillard positioned the crew member ,where sandblasting was required
by activating the·rake drive mechanism, transporting the individual to the
desired location. Stafford was so transported.

1

t
..4. d

l ~I '

18. Prior to crew members entering the tank, Rebillard had locked out.
the motor control switch for the rake drive, preventing its activation. He
had also tagged the switch, stating that maintenance work was in progress.
Rebillard would remove the lock just prior to activating the drive
mechanism and, once the crew member was in position, would stop the rake
drive and immediately replace the lock. This procedure deviated from
Western Nuclear's lock and tag procedure then in effect, which required
that the lock and tag should only be removed when the work was· completed
and the equipment was clear of personnel. The procedure employed by
Rebillard likewise deviated from the el~ctricity standard for metal and
non-metallic open pit mines contained ·in 30 c.~.R. § 55.12-16. 2 /
19. That same day, Stafford held a conversatron with co-workers Smith
and Hill. Quitting for a safety concern and unemployment compensation were
subjects of discussion.
20. At approximately 8:00 a.m. on September 19, 1979, Bobby Ridgeway
then Radiation Safety Officer with Western Nuclear's Sherwood Project,
encountered Stafford near the yellowcake precipitation tank while on a walk
around inspection. During that encounter, Stafford coimounicated to
Ridgeway his apprehension of falling off of the rake assemblies.
21. Later that morning, Stafford held several conversations with Smith
and/or Hill. Quitting, being fired, refusing. to work, sandblasting,
yellowcake hazards, riding the rake assemblies and unemployment
compensation were topics of dis.cuss ion in varying degrees.
22. Oh September 19, 1979, the crew as a whole began the day in the
general maintenance shop. Stafford, Grant, Miller and Rebillard were
present. Stafford asked Miller if he would take his shifts sandblasting.
Miller said that he would, but Rebillard said that to do· so would be
illegal as crew members should each be in the protective hood assembly for
only twenty minutes at a time. At this time, Clark walked in, asked what
was going on and was told of Stafford's request. Clark instructed the crew
to get things ready for work on the tank, which they did. Rebillard. asked
Stafford to go down into the tank first. Stafford refused, stating that he
felt it was unsafe. Rebillard informed Stafford that he could either go in
the tank first or go see Jeffries. ~tafford chose to go see Jeffries.
23. At approximately 8:45 a.m., on September 19, 1979, Stafford went
to Jeffries' office and told him that he wasn't going into the tank.
Jeffries asked Claude C.ox, Mine Safety Supervisor, and Ridgeway, as
radiation supervisor, to check the yellowcake precipitation tank for air
quality and the equipment being used for safety.

2/ Mandatory. Electrically powered equipment shall be deenergized before
mechanical work is done on such equipment. Power switches shall be locked
out or other me?sures taken which shall prevent the equipment from being
energized without the knowledge of the individuals working on it. Suitable
warning notices shall be posted at the power switch and signed by the
individuals who are to do the work. Such locks or preventive devices shall
be removed only by the persons who installed them or by authorized
personnel.

24. After being asked by Jeffries, Cox and Ridgeway physically
examined the yellowcake precipitation tank. Cox. observed the area and
examined the· equipment for safety. He asked Stafford, Miller and
Rebillard, in the presence of Jeffries, what was unsafe. The only_ reply he
received was from Stafford, who stated that he didn't want to get on and
ride the rakes. Stafford was interrupted by Jeffries, who forcefully
stated, "You were told not to ride the rakes, we don't want you to ride
those rakes." Cox, at this point, was unaware that people had been ridi~g
the rake assemblies. Ridgeway reported to Jeffries at the scene that the
crew members were sufficiently protected from radiation hazards.
25. Jeffries then wrote out a discharge slip for Stafford based upon
his refusal to perform his assigned duties.
ISSUES
By discharging him from his·employment at the Sherwood Project for
failure to perform his assigned duties, did Western Nuclear unlawfully
discriminate against Rob~rt E. Stafford in violation of section lOS(c}(l)
of the Federal Mine Safety and Health Act of 1977?
DISCUSSION
In its decision of Secretary of Labor on. behalf of David Pusula. v.
Consolidation Coal Company, 2 FMSHRC 2786 (October 14, 1980), the Federal
Mine Safety and Health Review Commission recognized the right of a miner to
refuse to perform work and set forth the test to be used to determine
whether or not the discharge of a miner for such refusal was
discriminatory. The Commission held as follows:
"We hold that the complainant has established ·a prima
facie case of a violation of section lOS(c)(l) if a preponderance of ·the evidence proves (1) that he engaged in a
protected activity, and (2) that the adverse action was
motivated in any part by the protected activity. On these
issues, the complainant must bear the ultimate burden of
persuasion. The employer may affirmatively defend, however,
by proving by a preponderance of all the evidence that,
although part of his motive was unlawful, (1) he was also
motivated by the miner's unprotected activities, and (2) that
he would have taken adverse action against the miner in any
event for the unprotected activities alone. On these issues,
the employer must bear the ultimate burden of persuasion. It
is not sufficient for the empioyer to show that the miner
deserved to have been fired for engaging in the unprotected
activity; if the unprotected conduct did no.t originally concern
the employer enough to have resulted in the same adverse action,
we will not consider it. The employer must show that he did in

151fl

fact consider the employee deserving of discipline for engaging
in the unprotected activity alone and that he would have disciplined him in any event." Id. at 2799-2800. (Emphasis in original.)
A.

Protected Activity

The Review Commission further refined the right of a miner to refuse
to perform work in its decision of Secretary of Labor, Mine Safety and
Health Administration (MSHA), ex rel. Thomas Robinette v. United Castle
Coal Company, 3 FMSHRC 803-(April~ 1981). Robinette resolved the
question of whether good faith and reasonableness are components of
protectetl activity.· The Commission adopted a rule that required a miner to
have a good faith, reasonable belief in a hazardous condition .for the work
refusal to be considered protected activity. _!i. at 812..
"Good faith belief simply means [an) honest belief that a hazard
exists." Id. at 810. The Commission determined that "[g]ood faith also
implies a;-accompanying rule requiring validation of reasonable belief."
Id. at 811. Validation could be achieved by 11 • • • a simple requirement that
the miner's honest perception ·be a reasonabie one under the circumstances."
Id. at 812. (Emphasis in original-:-)
With regard to these issues, the evidence establishes that Stafford
had a preoccupation with state unemployment GOmpensation and· in the
circumstances under which one could qualify for such assistance. He also
was known ·to have a distinct dislike for the task of sandblasting. Craig
Smith testified in minute detai 1 as to various convet'sat ions he had with
Stafford in the three days preceding Stafford's discharge. In the majority
of these conversations, issues of safety, termination of employment and
unemployment compensation were subjects of discussion. Smith had no deep
regard for Stafford and was of the opinion that Stafford was trying to draw
a paycheck for no work. On cross examination by counsel for the Secretary,
it ·was revealed that Smith Is recollection of other events from his past
association with Stafford .could not be recalled in similar exacting detail.
On the other hand, Stafford either denied or could not remember.
conversations with Smith having taken place. After examining the testimony
and demeanor of the witnesses, I find that conversations between Stafford
and Smith did occur and that issues of safety, termination of employment
and unemployment compensa.tion were subjects of discussion. However, the
testimony as to what was specifically said by whom aqd when it. occurred is
not entirely credible. I further find that it has been established by a
preponderance of the evtdence that Stafford held an honest belief that a
hazard existed in riding the rake assemblies and that such belief was a
reasonable one, involving substantial risk of injury through physical
mutilation. There was clearly a violation of a mandatory safety standard
and management was informed by Stafford of this situation, as is more fully
set forth below. Under these circumstance~, Stafford's refusal to perform
work was a valid exercise of a statutory right afforded him by the 1977 Act
arid, as such, is entitled to ·protection.
As to other issues of protected activity raised in this case, section
lOS(c)(l) of the Act sets forth certain enumerated types of employee
activity protected by a prohibition against discrimination or interference,
including:

•>(•
J' .. •t"..>i::.,,

" •.• 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, .. , or because of• the exercise by
such miner ••• on behalf of himself or others of any statutory
right afforded by this Act."
The evid~nce establishes that early on September 19, 1979, that Bobby
Ridgeway, then Radiation Safety Officer with Western Nuclear's Sherwood. ·
Project, encountered Stafford near the yellowcake precipitation tank while
on a walk around inspection. Ridgeway testified that at their meeting he
greeted Stafford ~aying, "Good morning, Bob," and that Stafford responded
with, "Well, I guess I am going to be fired." Ridgeway testified that he
was concerned and wanted to know why. Stafford stated that he refused to
go in the tank.· When asked why, Stafford mentioned both his and hl.s
mother's concern about his exposure to high radiation. Ridgeway then
proceeded to explain the relative safety of the assignment to Stafford. On
cross examination by counsel for the Secretary, it was brought out that in
an interview with Robert Chelini, the MSHA inspector investigating
Stafford's discharge, that Ridgeway had stated that Stafford had told him
that he was afraid he would fall [off of the rakes]. Ridgeway identified
his voice on a tape recording of that interview. He testified that he
could not remember Stafford telling him about his fear of falling, but that
he could have told him. I find· that Stafford did connnunicate his
apprehension to Ridgeway and, under the broad laniuage of section
105(c)(l), that the communication amounted to a colorable complaint of an
alleged danger or safety violation.
The evidence further establishes that on September 19, 1979, after
first refusing to enter the yellowcake precipitation tank, that Stafford
went to see Edward Jeffries, the Mill Repair Foreman. Stafford told him
that he wasn't going into the tank. Jeffries testified that he asked
Stafford why and was told that Stafford had talked with his mother and that
she had advised him against entering the tank because of the high
radiation. Stafford testified that he complained to Jeffries about how he
didn't believe that he should be riding the rakes in the manner the crew
was employing because he thought that it was dangerous. Jeffries denied
that Stafford mentioned this apprehension. According to Jeffries, the
first indication that he received that employees were riding the rake
assemblies came from· Mr. Chelini, the MSHA special investigator. I find
that Stafford did mention these concerns tt> Jeffries, providing the grounds
for those concerns. These communications constituted a safety·complaint
and, thus, were protected activity under the Act.
To satisfy himself, Jeffries asked Claude Cox, Mine Safety Supervisor,
and Rid.geway, as radiation supervisor, to check the yellowcake precipitation tank fo.r air quality and the equipment being used for safety. Cox and
Ridgeway examined the tank and Ridgeway reported to Jeffries at the scene
that the crew members were adequately protected from radiation hazards.
Cox testified, that while on the scene and in.the pre.sence of Jeffries, he
asked Stafford, Miller and Rebillard what""was "unsafe. The only reply he
received was from Stafford, who stated that he didn't want· to get on and
ride the rakes. Stafford was interrupted by Jeffries who forcefully
stated, "You were told not to ride the rakes; we don't want you to ride

' t . ' ) .,- .
......
,.~

those rakes." Cox testified that at this point he was unaware that people.
had in fact been riding the rake assemblies. I find that Stafford's
remarks were s·afety complaints and entitled to protection under the Act.
B.

Motivation of Discharge

It is abundantly clear from the record that Stafford was discharged
from his employment at Western Nuclear'& Sherwood Project for his refusal
to perform his assigned duties. That refusal has previously been
determined to have been a valid exercise of -Stafford's statutory rights
and, hence, protected activity. Although Stafford t'.s complaints may have
played some part in his discharge, his refusal to work was ostensibly the
cause. i find it has been established by a preponderance of the evidence
th~t Stafford's discharge was motivated by this protected activity.

Althouih the record indicates that Stafford may have been less than ~
desirable employee, Western Nuclear-has failed to show that it did in fact
consider him deserving of discipline for engaging in any unprotected
activity alone and that it would have disciplined him. in any event.
CONCLUSIONS OF LAW
1. Respondent Western Nuclear is a mine subject to the provisions of
the 1977 Act.
2. At all times relevant to this Decision, Complainant Robert E.
Stafford was a miner as defined in the Act and entitled to the protection
afforded by the Act.
3. The presiding Administrative Law Judge has jurisdiction over the
parties and the subject matter in these proceedings.
4. On September 19, 1979, Complainant Stafford engaged in the
following activities, which are protected by section 105(c)(l) of the Act:
complaints to Radiation Safety Officer Bobby Ridgeway concerning radiation
and falling hazards; complaints to Mill Repair Foreman Edward Jeffries
concerning radiation and falling hazards; complaints to Mine Safety
Supervisor Claude Cox concerning falling hazards; and refusal to perform
assigned duties which necessitated his transportation on electrically
operated mechanical equipment in a manner inconsistent with the intended
use of that equipment.
5. On September 19, 1979, Respondent Western Nuclear discharged
Complainant Stafford from his employment, motivated in part by the
protected activity described above.
6. Respondent Western Nuclear failed to establish that it did in fact
consider Complainant Stafford deserving of discipline for engaging in any
unprotected activity alone and that it would have disciplined him in any
event.

1 ')r:·2 r:.fJ

7. Respondent Western Nuclear's discharge .of Complainant Stafford on
September 19, 1979, violated section lOS(c)(l) of the Federal Mine Safety
and Health Act.of 1977.
ORDER
Accordingly, it is ORDERED: that Respondent Western Nuclear, Inc.
offer to re.instate Complainant Robert E. Stafford to his former position,
at his former rate of pay, with any adjustments in position or rate of pay
to which he would have been entitled had he not been discharged; that
Respondent pay to Complainant Stafford back pay in the form of gross pay
less amounts withheld pursuant to state and Federal law, to be calculated
from the· date of his discharge to the date this Decision becomes final,
less actual interim earnings, plus interest at the rate of 9 percent per
annum; that Respondent shall expunge from Complainant Stafford's employment
record any adverse references relating to his discharge and transmit to him
a copy of his employment record reflecting the deletion of any adverse
references relating to his discharge; and that Respondent shall pay a
civil penalty in the amount of $100.00 for its violation of the Federal
Mine Safety and Health Act of 1977.

Judge
Distribution:
Mildred L. Wheeler, Esq., Office of the Solicitor, United States
Department of Labor, 11071 Federal Building, Box 36017, 450 Golden Gate
Avenue, San Francisco, California 94102
Kent W. Winterholler, Esq., Parso~, Behle & Latimer, Attorneys at Law,
79 South State Street, P.O. Box 11898, Salt Lake City, Utah 84147

1r>2a

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th. FLOOR
5203 LEESBURG PIKE
FALLS CHURCl1, VIRGINIA 22041

JUN 12 •
... Civil Penalty Proceeding

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

Docket No. LAKE 79-9-M
A/O No. 33-01395-05002F

v.

Harrison Pit and Plant
AMERICAN MATERIALS CORPORATION,
Respondent
DECISION
Appearances:

Linda L. Leasure, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
Petitioner;
John w. Edwards, Esq.·, and David William T. Carroll,
Esq., Smith & Schnacke, Columbus, Ohio, for Respondent.

Before:

Judge Cook

I.

Procedural Background

On June 26, 1979, the Mine Safety and Health Administration (Petitioner)
filed a petition for assessment of civil penalty in the above-captioned proceeding pursuant to section llO(a) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (Supp. III 1979) (1977 Mine Act). The petition alleges tw~ violations of provisions of the Code of Federal Regulations.
On July 5, 1979, an answer was filed by American Materials Corporation
(Respondent). Thereafter, the parties engaged in extensive discovery.
On May 21, 1980, a notice of hearing was issued scheduling the case for
hearing on the merits on August 5, 1980, in Cincinnati, Ohio• The hearing
convened as scheduled with representatives of both parties present and
participating. At the Respondent's request, the undersigned Administrative
Law Judge, accompanied by representatives of both parties, viewed the site
of the accident which resulted in the issuance of the subject citations. At
the close of the Petitioner's case-in-chief, the Respondent made motions to
dismiss the proceeding. The motions were taken under advisement to be ruled
upon at the time of the writing of the decision. Additionally, following the
presentation of the evidence, a schedule was set for the filing of posthearing
briefs and proposed findings of fact and conclusions of law. However, difficulties experienced by counsel necessitated a revision thereof.

~ 'J '
1 ''""'*

On October27, 1980, the Respondent filed a motion to dismiss. On
November 10, 1980, the Petitioner filed a m·emorandmn in opposition thereto.
The Respondent filed a posthearing memorandum on December 11, 1980, and
the Petitioner filed proposed·~indings of fact and concl~sions of law on
December 12, 1980. On January 12, 1981, the Petitioner filed a letter
retracting, for the present, references to certain cases cited in its posthearing brief. The Respondent filed a reply memorandum, a supplemental
memorandmn regarding recent decisions, and a second supplemental memorandum
regarding recent decisions on January 21, 1981, March 2, 1981, and March 16,
1981.
II.

Violations Charged
Citation No.

Date

30 C.F.R. Standard

358304
360204

4/26/78
4/26/78

56.12-71
56.20-11

III.

Witnesses and Exhibits
A.

Witnesses

The Petitioner called Federal mine inspectors Verl C. Thomas and
William D. Atwood as witnesses. Both the Pet:itioner and the Respondent
called Mr. Charles Ballinger, the Respondent'·s superintendent of operations, as a witness.
B.

Exhibits

1.

The Petitioner introduced the following exhibits in evidence:
M-1 is a ground plan of the Respondent's Harrison Pit and Plant.
M-2 is a geperal ground plan of the Respondent's Harrison No. 712

Plant.
H-3 is a computer printout showing the history of pre\7ious violations for which the Respondent had paid assessments at its Harrison Pit and
Plant, at its Fai.rfield Pit and Plant No. 711, at its North Hamilton facility
No·. 710, and at its Kirby Road Pit and Plant.
Plant.
2.

M-4 is an aerial photograph of the Respondent's Harrison Pit and
The Respondent introduced the following exhibits in evidence:
0-1 is a photograph.
0-2 is a photograph.

IV.

Issues

Two basic issues are involved in this civil penalty proceeding: (1) did
a violation of the subject mandatory safety standards occur, and (2) what
amount should be assessed as a penalty if a violation is found to have
occurred? In determining the amoun~ ~f civil penalty that should be assessed
for a violation, the law requires that six factors be considered: (1) history
of previous violations; (2) appropriateness of bhe penalty to the size of the
operator's business; (3) whether the operator was negligent; (4) effect of the
penalty on the operator's ability to continue in business; (5) gravity of the
violation; and (6) the operator's good faith in attempting rapid abatement of
the violation.
V.

Opinion and Findings of Fact
A.

Stipulations

1. No inspections were made and no citations were issued at the Harrison
Pit and Plant prior to the accident of April 25,· 1978 (Tr. 8).
2. There is no dispute as to coverage and jurisdiction. The facility
constitutes a "mine" within the meaning of the 1977 Mine Act (Tr. 11).
3. The size of the mine during the years 1977 and 1978 was 19,518 manhours per year (Tr. 26-29).
B.

Respondent's Motions to Dismiss at the Close of Petitioner's
Case-in-Chief

The Respondent made oral motions to dismiss the proceeding at the close
of the Petitioner's case-in-chief. The motions to dismiss encompass both
citations. The undersigned Administrative Law Judge took the motions under
advisement, and informed the parties that rulings would be made on the motions
at the time of the writing of the decision based upon the record as it existed
when the motions were made (Tr. 134-142).
The Respondent advanced various arguments in support of its motions to
dismiss, and has reasserted those argmnents in its posthearing filings. The
specific legal issues raised are addressed in subsequent portions of this
decision. The evidence contained in the record when the motions were made
has been considered fully.
It is found later in this decision that the evidence presented by the
Petitioner failed to prove that the circwnstances of the accident in this
case presented a situation where "equipment must be moved or operated near
energized high-voltage powerlines *
* and the clearance is less than
10 feet * * *·" (Emphasis added.) Therefore, a violation of 30 C.F.R.
§ 56.12-71 has not been proved.

*

However, it is found later in this decision that the evidence presented
by the Petitioner established a prima facie case as to a violation of 30 C.F.R.

1526

§ 56.20-11 in that a warning sign should have been posted as to a safety
hazard which would not be immediately obvious to an employee, namely, the
safety hazard created by the high-voltage powerline.

Accordingly, the Respondent's motion to dismiss at .the close of the Petitioner's case-in~chief will be granted as to an allegation of a violation of
30 C.F.R. § 56.12-71 and will be denied as to an alleged violation of 30 C.F.R.
§ 56.20-11.
C.

Occurrence of Fatal Accident

On April 25, 1978, an individual identified as Mr. Meyer sustained a
fatal injury at the Respondent's Harrison Pit and Plant. The two citations
which are the subject matter of this proceeding were issued during the Petitioner's April 26, 1978, fatal accident investigation.
Mr. Meyer was not an employee of the Respondent at the time of the accident, and nothing indicates that he was ever the Respondent's employee.
Rather, he was either an employee of RBS Trucking Company or an owner-operator
working for ·RBS Trucking Company. RBS Trucking Company was one of the Respondent's customers hauling sand and/or gravel from the Harrison Pit and Plant
(Tr. 54, 66, 101, 126).
.
It appears that before April 25, 1978, the Respondent's geographical
market expanded when trucks hauling coal ·fro~ Kentucky to the Harrison, Ohio,
area began coming to the Harrison Pit and Plant to obtain loads of sand for
the return trip to Kentucky (Tr. 122-123). Some of thes.e truck drivers cleaned
coal residue from their truck beds while on the Respondent's property. This
cleaning operation was accomplished by raising the truck bed. This had begun
a short time before April 25, 1978 (Tr. 122-124).
It appears that the Respondent was clearly displeased with the fact tmrt
some of the truck drivers were cleaning coal residue from their truck beds
while on the property, and that the Respondent was particularly upset by the
fact that some of these truck drivers were cleaning their truck beds in the
stockpile areas. Mr. Charles Ballinger, the Respondent's superintendent of
operations, . had instructed Mr. Norman Ross, the foreman, to stop the truck
drivers from doing this, to get them to clean their truck beds off of the
-property, because coal residue was contaminating the materials that the ·
Respondent was offering for sale. It appears that Mr. Ross implemented this
directive by verbally informing those truckdrtvers caught in the act to make
sure that they cleaned their truck beds before coming onto the property. . It
appears that no arrangements had been made to so instruct the truck drivers
when they first entered the property (Tr. 52-53, 122-125).
RBS Trucking Company delivered coal to the power companies in the
Harrison, Ohio, area, and thereafter picked up sand and/or gravel at the
Harrison Pit and Plant for the return trip to Kentucky (Tr. 125-126). On
April 25, 1978, Mr. Meyer 'drove onto the property, presumably to pick up a
load of sand and/or gravel for transport into Kentucky. He turned west down

1527

a gravel-surfaced roadway leading to one of the stockpile areas (Tr. 37-38,
unnumbered stockpile on M-4). Shortly before reaching the workshop, he pulled
his tractor.,.trailer dump truck completely off the gravel-surfaced roadway in
order to dump the coal residue from the truck bed. He pulled off to the left
· of the gravel-surfaced roadway and parked the truck in an area characterized
by unstable ground conditions. The ground was wet and muddy and there was
standing water present (Tr. 35-38, 59, 86).
Parked rn this position, the truck was parallel to, but not directly
under, the overhead high-voltage powerlines. The truck was positioned such
that the righthand, or passenger's., side of the truck was approximately
5 feet from the gravel-surfaced roadway, and that the lefthand, or driver's,
side was the side nearest the powerline (Tr. 37-38, 58-59, 73, 118-119).
Mr. Meyer, apparently while still inside the tractor cab, raised the
30-foot long truck bed, or "sandbox," to its maximum vertical extension of
28-1/2 feet. Then, it appears that he got out of the cab in order to operate the tailgate release lever (Tr. 58, 61, 65, -80-83, 85, 88, 103, 115).
This lever was located on the front of the trailer .at the service connection of the tractor-trailer rig (Tr. 115). An individual could operate the
lever either while standing on the ground or while standing ·on the tractor
frame (Tr. 115-116). It appears that Mr. Meyer climbed onto the tractor
frame in order. to release the lever. He was electrocuted at approximately
1:45 p.m. when a gust of wind blew the high~voltage powerline into the
raised bed of the truck. This required the ~ust of wind to blow the powerline a lateral distance of approximately 1 foot. The voltage passing
through the powerline was rated at 4,160 volts 1 }:_/ and the powerline was
approximately 28-1/2 feet above the ground (Tr. 34-37, 61-62, 80-86, 117118).

The subject citations were issued during the course of the Petitioner's
April 26, 1978, fatal accident investigation. Citation No. 358304 was issued
by Federal mine inspector William D. Atwood. The allegations contained in the
citation, as incorp.orated into the petition for assessment of civil penalty,
charge a violation of mandatory safety standard 30 C.F.R. § 56.12-71 in that
"[t]he dump truck was being operated within 10 feet of the energized 4,160 volt
powerline." The cited mandatory safety standard provides that "[w]hen equipment must be moved or operated near energized high-voltage powerlines (other
than trolley lines) and the clearance ~~ less than 10 feet, the lines shall
be deenergized or other precautionary measures shall be taken."
1/ One of the definitions contained in 30 C.F.R. § 56.2 provides that the
term "high potential" means "more than 650 volts." According to Paul W.
Thrush (ed.), A Dictionary of Mining, Mineral and Related Terms (Washington,
D.C. :· U.S. Department of the Interior Bureau of Mines) (1968) at page 543,
the term "high voltage" means: "a. A high electrical pressure or electromotive force. Grove. b. That which is greater than 650 volts. Also called
high potential. ASA MZ.1-1963."

C'itation No. 360204. was issued by Federal mine inspector Steve Viles.
The allegations .contained in the citation, as incorporated into tlie petition
for assessment of° civil penalty, charge
violation of mandatory safety standard 30 C.F.R. § 56.20-11 in that "[h]azardous· area [was] not adequately
posted at the main ·haulage road along the 4,160 [volt] P.Owerline." The cited
mandatory safety standard proviies that "[a]reas where health or safety
hazards exist that are not immediately obvious to employees shall be barri~aded, or warning signs shall be posted at all approaches.
Warning ·signs
.shall be readily 1 visible, legible, display the nature of.the hazard, and any
protective action required."·

a

D.

Whether the Respondent is Properly Charged with Violations of
Mandatory Safety Standards

The first principal question presented is whether the Respondent is properly charged with violations of mandatory safety standards which caused or
contributed to the death of an individual who was either a customer or an
employee of a customer, or an independent owner-operator hired by a customer.
The resolution of this question turns upon (1) whether the decedent was a
"miner" within the meaning of section 3(g) of the 1977 Mine Act; and (2)
whether the Respondent is charged with having committed violations of the
mandatory safety standards or, alternatively, whether;the Petitioner seeks
to hold the Respondent responsible for violations committed by either the
customer, or the custome.r's employee, or the independent owner-operator hired
by the customer.
The 1977 Mine Act is remedial legislation intended to secure a safe and
healthful work environment for "miners," as that term is defined in section
3(g) of the 1977 Mine Act. See section 2 of the 1977 Mine Act •. The 1977 Mine
Act imposes duties on mine ope-rators with respect to those individuals falling
within the statutory definition of a "miner." See Republic Steel Corporation,
1 FMSHRC 5, 11, 1 BNA MSHC 2002, 1979 CCH OSHD par. 23,455 (1979). Therefore,
the threshold inquiry is whether the decedent was a "miner," as defined by
section 3(g) of the 1977 Mine Act.
Section 3(g) of the 1977 Mine Act defines the term "miner" as "any
individual working in a 'coal or other mine." One's status as a "miner" is
not contingent upon an employment relationship.with the owner or operator
of a mine. El Paso Rock Quarries, Inc., 3 FMSHRC 35, 37 n. 11, 2 BNA MSHC
1132, 1981 CCH OSHD par. 25,154 (1981). The .duty imposed on the mine operator to comply with the 1977 Mine Act and the mandatory.safety and health
standards is one that extends to all miners, irrespective of whether or not
the miners affected by a given violative condition are employees of the mine
operator. See Republic Steel Corporation, 1 FMSHRC 5, 11, 1 BNA MSHC 2002,
1979 CCH OSHD par. 23,455 (1979).
The evidence presented establishes that Mr. Meyer was either an employee
of RBS Trucking Company or an owner-operator 1 wor~ing for RBS Trucking Company;
and that RBS Trucking Company was one of the Respondent's customers, transporting sand and/or g~avel from the Harrison Pit and Plant to Kentucky. The

lfi29

evidence also shows that Mr. Meyer visited the Harrison Pit and Plant on
April 25, 1978, to obtain a load of sand and/or gravel. I hold that
Mr. Meyer's April 25, 1978, activities at the Respondent's Harrison Pit and
Plant constituted "working in a coal or other mine" and, accordingly, that
Mr. Meyer fell within the definition of "miner" set fort-h in section 3(g) ·
of the 1977 Mine Act. Therefore, he was entitled to the protections afforded
by the 1977 Mine Act.
The second question presented is whether the Fetitioner seeks to hold the
Respondent responsible for violations committed by Mr. Meyer; or, alternatively, whether the Respondent is charged with having committed the violations
cited in the subject citations.
The Respondent is, of course, properly charged if the citations allege
that the Respondent committed the violations of the cited mandatory safety
standards. It is self-evident that the Respondent is liable for its own
violations.
A review of the allegations contained in the citations clearly show~
that the Respondent.is charged with having committed the violations of mandatory safety standards 30 C.F.R. § 56.12-71 and 30 C.F.R. § 56.20-11. The
Petitioner is riot attempting .to hold the Respondent liable for violations
committed by either RBS Trucking Company or Mr. Meyer.,. Accordingly, I conclude that the Respondent is properly charged in thi-s 'proceeding.
These determinations dispose of some of the issues raised in Respondent's motion to dismiss filed on October 27, 1980. Others will be disposed
of later in this decision.
E.

Citation No. 358304, April 26, 1978, 30 C.F.R~ § 56.12-71

As noted above, this citation alleges a violation of mandatory safety
standard 30 C.F.R. § 56.12-71 in that "[t]he dump truck was operated within
10 feet of the energized 4,160 volt powerline." The cited mandatory safety
standard requires that "[w]hen equipment must be moved or operated near energized high-voltage powerlines (other than trolley lines) and the clearance is
less than 10 feet, the lines shall be deenergized or other precautionary measures shall be taken."
The evidence shows that Mr. Meyer pulled his tractor-trailer dump truck
off of the gravel-surfaced roadway and parked parallel to, and not under, the
powerline. He raised the truck bed to a height of 28-1/2 feet, its maximum
extension, and a. gust of wind blew the powerline into contact with the
raised truck bed, electrocuting Mr. Meyer. This required the gust of wind
to blow the powerline a lateral distance of approximately 1 foot. The evidence in the record and the inferences drawn therefrom shows that Mr. Meyer
raised the truck bed in order to clean coal residue from it prior to
acquiring a load of sand and/or gravel.
The controversy as to whether a violation of the regulation occurred
centers around the regulation's use of the term "must." The Respondent's

1530

position, as set forth in its motion to dismiss at the close of the Petitioner's case-in-chief, in its December 11, 1980, posthearing memorandum,
and in its January 21, 1981, reply memorandum, asserts that no violation
occurred because there was no requirement that the truck be moved or
operated near the powerlines. According to the Respondent's posthearing
memorandum:
To the contrary, the truck was parked on ground that was wet,
muddy and very unstable. The area was not suitable for
pulling a truck into. There were no truck tracks in the offroad area other than the tracks made by the decedent's truck.
The r'oad did not pass under the powerlines. In order· to get
under the powerlines, the truck had to drive off the haul
road onto the unstable area which was clearly unintended for
and unsuitable for driving. No reasonable person would have
driven a truck or anticipated someone else would drive a truck
onto the area where the accident occurred.
(Respondent's Posthearing Memorandum, pp. 11-12; citations to record omitted.)
The Petitioner counters that the Respondent's policy prohibiting the
cleaning of trailer beds in the pit areas, and its attempts to implement and
enforce such policy, in effect required the drivers to perform the cleaning
activities on or beside the haulage roads leading to the pits and in close·
proximity to high-voltage powerlines. According to the Petitioner, the fact
that the Respondent did not want the truck ~.eds cleaned on its property is
not controlling because, given the circumstances, it was foreseeable that the
dumping would occur on the property (Tr. 137-142, Petitioner's Posthearing
Submissions, P• 8).
The regulation's use of the verb phrase "must be moved or operated"
demons.trates that the regulation applies when the mine operator requires
the movement or operation of equipment within 10 feet of high-voltage powerlines, or when the operator arranges the layout of its plant in such a way
that equipment must be moved or operated within 10 feet of high-voltage
powerlines in carrying out operations at the plant.
As stated previously, the evidence presented by the Petitioner failed to
prove that the instant case presented a situation where equipment must be
moved or operated within 10 feet of high-voltage powerlines.
The location of the wires in this case with respect to the subject part
of the plant, including the roads, was such that it cannot be said that the
mine operator created a situation where a truck such as the one involved in
this case must be operated within 10 feet of the high-voltage lines.
The wires in question were not over the road in the area of the accident.. The wires were well off the road. The facts show that they had to be
at least about 13 feet from the road. Further, the wires were 8-1/2 feet
above the standard required by the National· Electric Safety Code (Tr. 99100).

1531

The mine operator had made it known to the truck drivers that it did not
want them to dump any coai from their trucks on the property of the plant.
The problem.of such type of dumping of coal had begun to develop just before
the day of the subject accident•
Evidence was found in the area after the accident indicating that other
truck drivers had cleaned ~oal residue. from their truck beds in the area where
the accident occurred. Mr. Ballinger testified that he observed two piles of
coal residue in the area immediately following the accident, the one which
Mr. Meyer had dumped and one which had been dumped by another driver prior
to the accident (Tr. 38-39, 53-54). The latter pile was approximately 5 to
10 feet behind, i .. e., to the east of the truck and 3 or 4 feet to the north
(Tr. 38-39). He-testified that he did not observe piles of coal at any other
point along the roadway, either to the west or to the east of the shop (Tr.
39). Federal mine inspector Verl C. Thomas, who examined the area during the
April 26, 1978, fatal accident investigation, observed three piles of coal
residue located approximately 5 to 8 feet, possibly 10 feet, behind the truck
and 4 to 6 feet farther to the north (Tr. 59-60). He observed two additional
coal residue piles located approximately 15 to.20 feet behind the truck, and
somewhat closer to the gravel-surfaced roadway than the first three piles (Tr.
59-60).
However, there is no proof that any part of the management of the
Respondent had any knowledge that the coal piles existed in the areas behind
the subject truck off of the road area (Tr. 120-122), although the management
had prior knowledge of dumping in the stockp"i.les. In addition, 'the truck
driver took his truck off the road into a wet, muddy and very unstable area.
It was an unsuitable area to park a truck (Tr. 37-38). In addition, the
driver had gone the wrong way on a road that had been marked "one-way" the
opposite direction (Tr. 49-50, 59, 73).
In addition, the inspector who issued. the citation had, in a statement
. he issued concerning the alleged violation of 30 C.F.R. § 56.12-71, checked
a box which sta'ted that the condition or practice cited could not have been
known or predicted, or occurred due to circumstances beyond the operator's
control (Tr. 71). This observation by the issuing inspector bolsters the
conclusion that the Respondent did not create a situation where equipment
must be moved or operated within 10 feet of high-voltage power.lines.
In view of all of these factors, it .is found that the Petitioner has
failed to prove that the facts of this case presented a situation where
equipment must be moved or operated within 10 feet of high-voltage
powerlines.
It should be added that the additional evidence presented by the Responafter the Petitioner had concluded its case would not change the result
herein.

d~nt

In view of the foregoing, I conclude that a violation of mandatory
safety standard 30 C.F.R. § 56.12-71 has not been established.

1 '"'. 3 '>r...
~

F.

C.itation No. 360204, April 26, 1978, 30 C.F.R. § 56.20-11

As noted above, this citation alleges a violation of mandatory safety
standard 30 C.~.R. § 56.20-11 in that a "[h]azardous area [was] not adequately
posted at the main haulage road along the 4 ,160 [volt] powerline." The cited
mandatory safety standard provides that "[a]reas where liealth or safety hazards
exist that are not immediately obvious to employees shall be barricaded, or
warning signs shall be posted at all approaches. Warning signs shall be
readily visible, legible, display the nature of the. hazard, and any protective action required." The evidence presented shows that the area had not
been barricaded and that no warning signs had been posted (Tr. 69-70, 72, 88).

The Respondent does not contest the fact that the area where the fatal
accident occurred was not barricaded and that no warning signs had been posted.
Inst~ad, the Respondent maintains that no violation occurred, by interpreting
the phrase "not immediately obvious to. employees" as (1) limiting the regulation's protection to its own employees; and (2) requiring that the hazard not
be immediately obvious to its own employees. (See Respondent's motion to
dismiss at the close of the Petitioner's case-in-chief, Tr. 134-137; Respondent's Posthearing Motion to Dismiss; Respondent's Posthearing Memorandum.) !:_/
The Petitioner maintains that the protection affor~ed by mandatory safety
standard 30 C.F.R. § 56.20-11 extends to all who fall within the definition
of "miner" set.forth in section 3(g) of the 1977 Mine Act. Additionally, the
Petitioner maintains that the hazard may not have been immediately obvious to
Mr. Meyer.
I conclude that mandatory safety standard 30 C.F.R. § 56.20-11 imposes a
duty upon the mine operator with respect to all who fall within the definition
of the term "miner." The regulation's protection is not limited to the mine
operator's employees.
Mandatory safety standard 30 C.F.R~ § 56.20-11 was initially promulgated
by the Secretary of the Interior pursuant to section 6 of the F.ederal Metal and
Nonmetallic Mine Safety Act of 1966, 30 u.s.c. § 725 (1976) (1966 Metal Act).
See 30 C.F.R. § 56.1. The 1966 Metal Act was remedial legislation enacted
"to reduce the high ~ccident·rate and improve health and safety conditions in
mining and milling operations carried on in the metal and nonmetallic mineral
industries." s. Rep. No. 1296, 89th Cong., 2nd Sess., reprinted in [1966]
U.S. CODE CONG. & AD. NEWS, 2846. The Federal Mine Safety and Health Amendments Act of 1977, Pub. L. No. 95-164, 91 STAT. §§ 1290-1322 (Amendments Act),
amongst other things, repealed the 1966 Metal Act, see § 306(a) of the Amendments Act, and ~nlarged the definition of "mine" set forth in section 3(h) of
the Federal Coal Mine Health and Safety Act of 1969, 30 u.s.c. § 801 et~·
(1970) (1969 'coal Act), to include those mines previously covered by the
1966 Metal Act. S. Rep. No. 95-181, 95th Cong., 1st. Sess. (1977), reprinted

'!:_/

The Respondent's position that the regulation protects only its own
employees is based upon the definition of "employee" set forth in 30 C.F.R.
§ 56.2, which defines the term as "a person who works for wages or salary
in the service of an employer."

in LEGIS.t\TIVE HISTORY OF THE FEDERAL MINE SAFETY AND HEALTH ACT OF 1977 at
647 (1978 • The mandatory standards relating to mines, issued by the Secretary of the Interior under the 1966 Metal Act and in effect when ·the Amendments Act w • enacted, remained in effect as mandatory health or safety
standards aL licable to metal and nonmetallic mines under the 1977 Mine Act,
and continue to remain in effect until such time as the ·secretary of Labor
issues new c-~ revised mandatory standards. Section 30l(b)(l) of the Amendments Act. fhe mandatory standards in effect on the effective date of the
Amendments Act "continue[d] in effect according to;their terms until modified, terminated, superseded, set aside, revoked or· repealed by the Secretary of Labor, the Federal Mine Safety and Health.Review Commission or other
authorized officials, by any court of competent jurisdiction, or by operation
of law." Section 30l(c) (2) of the Amendments Act.
It has been held previously in this decision that Mr. Meyer fell within
the definition of the term "miner" as set forth in section 3(g) of the 1977
Mine Act. Thus, the question presented is whether 30 C.F.R. § 56.20-11, as
applied under the 1977 Mine Act, accords protection to miners who are not the
mine operator's employees. The problem is essentially one of interpreting
the regulation in accordance with the 1977 Mine Act's remedial purpose.
As a general proposition, the rules of statutory construction can be
employed in the interpretation of administrative regulations. See C. D. Sands,
lA Sutherland on Statutory Construction, § 31.06; p. 362 (1972)-.-According to
2 Am.Jur.2d, Administrative La1 , § 307 (1962·), "rules made in the exercise of
a power delegated by statute should be construed together with the statute to
make, if possible, an effectual piece of legislation in harmony with common
sense and sound reason." Remedial. legislation directed toward sec·uring safe
and healthful work places must be interpreted in light of the express Congressional purpose of providing a safe and healthful wo.rk environment, and the
regulations. promulgated pursuant to such legislation must be construed to
effectuate Congress' goal of accident prevention. Brennen v. Occupational
Saf~ty and Health Review Commission, 491 F .2d 1340 (2d Cir. 1974).
"Should
a conflict develop between a statutory interpretation that would promote
safety and an interpretation that would serve another purpose at a possible
compromise of safety, the first should be preferred." District 6, UMWA v.
Department of Interior Board of Mine Operations Appeals, 562 F.2d 1260 (D.C.
Cir. 1972).
The 1966 Metal Act never used .the term "miner" in any of its provisions.
Instead, the 1966 Metal Act used the terms "employees of the mine,"
"employees," "mine workers," and "workers in such mines," wh~re the term
"miner" would ordinarily be expected to appear. See sections 7(a), 8(a) (3),
8(b)(3), lO(c), and 15 of the 1966 Metal Act. But the regulation, when interpreted in conjunction with the 1977 Mine Act's remedial purpose, is clearly
intended to provide those working in the mine with warning of or protection
against health or· safety hazards which are not immediately obvious. I therefore conclude that Congress, in adopting 30 C.F.R. § 56.20-11 as a mandatory
standard under the 1977 Mine Act, intended that it afford protection to all
miners, and that it imposes a duty on the mine op.erator with respect to all

1534

miners working in its mine. A construction limiting its protection to
employees of the mine operator would serve an objective at odds with mine
safety, and is ·therefore not to be preferred.
The remaining question is whether the hazard was immediately obvious.
The evidence clearly shows that the powerlines·were readily observable (Tr.
72, 10~). The evidence further shows that the powerline that achieved
contact with the truck bed was approximately 28-1/2 feet above the ground,
and that the truck bed, at its maximtun extension, reached a height of
approximately 28-1/2 feet.
The fact that the powerlines themselves were readily observable under
normal conditions is not dispositive of the question presented. The powerlines were sufficiently high above the ground that the hazard posed by
raising a truck bed or operating other equipment in the area was not immediately obvious. The truck operator had raised the bed of the trailer from
inside the truck cab. It was raining; the winds were gusting; and the
operator of the truck, upon getting out of the. truck, was engaged in operating the tailgate. There is no way to know whether operators of trucks in
the area would know about the high voltage of the wires in question. In
view of all o.f these factors, I conclude that this was an area where a
safety hazard existed which was not immediately obvious to a miner such as
the subject truck driver and that neither barricades nor warning signs were
posted at all the approaches.
Accordingly, I conclude that a violat-ion of mandatory safety standard
30 C.F.R. § 56.·20-11 has been established by a preponderance of the evidence.
G.

Negligence of the Operator

It appears that the problem of dumping coal residue on the property
arose only a short time prior to April 25, 1978. The Respondent undertook
steps to prevent truck drivers from engaging in such activity, but as of
April 25, 1978, had not found an effective means of dealing with the problem. In fact, at some undisclosed point in time after the accident, the
R~spondent provided a waste area in the pits where the dumping of truck
beds could be accomplished (Tr. 131).
However, the fact remains that warning signs should have be(~ posted
concerning the hazard of the high-voltage powerlines. In view of all of the
surrounding circumstances, including the fact that the Respondent attempted
to undertake corrective action by attempting .to ,prevent the dumping of coal
residue on the property prior to April 25, 1978, I find that the Respondent
demonstrated ordinary negligence in connection with the violation.
H.

Gravity of the Violation

The violation contributed to the fatal
found that the violation was serious.

1535

ac~ident.

Accordingly, it is

I. ·Good Faith in Attempting Rapid-Abatement
The haulageway was immediately barricaded and posted in order to abate
the violation (Tr. 72). Accordingly, I conclude that the Respondent demonstrated good faith in attempting rapid abatement of the ~iolation.
J.

Size of the Operator's Business

The Respondent is a wholly owned subsidiary of American Aggregates
Corporation (Tr. 9; Respondent's Posthearing Memorandum, P• 2). The record
contains no evidence as to whether American Aggregates Corporation owns or
controls mining operations other than the Respondent, or, if so, the size
of those mining operations.
No evidence was presented as to the aggregate size of all mining operations owned or controlled by the Respondent. The only evidence contained in
the record relates to the size of the Respondent's Harrison Pit and Plant.
The parties stipulated that the size of t-he Harrison Pit and Plant in 1977
and 1978-was ,rated at 19,518 man-hours per year (Tr. 26-29). The evidence
presented reveals that the Harrison Pit and Plant sold approximately 350,000
to 400,000 tons of material in 1978 (Tr. 52).
K.

History of Previous Violations

The parties stipulated that no inspect:i,.ons had been conducted at, or
citations issued at, the Harrison Pit and Plant prior to the April 25, 1978,
ac.cident (Tr. 8). The record contains no other evidence as relates to the
history of previous violations.
Accordingly, it is found that the Respondent has no history of previous
violations cognizable in this proceeding.
L.

Effect of a Civil Penalty on the Operator's Ability to Continue
in Business

No evidence was presented establishing that the assessment of a civil
penalty in this case will adversely affect the Respondent's ability to remain
in business. In Hall Coal Company, 1 IBMA 175, 79_ I.D. 668, 1971-1973 CCR
OSH. par. 15,380 (1972), the Commission's predecessor, the Interior Board of
Mine Operations Appeals, held that evidence relating to whether a penalty will
affect the ability of the operator to remain in business is within the operator's control, and therefore, there is a presumption that the ope.rator will
not be so affected. I find, therefore, that a civil penalty otherwise properly assessed in this proceeding will not impair the Respondent's ability to
continue in business.
VI.

Conclusions of Law

1. The Administrative Law Judge has jurisdiction over the subject matter
of, and the parties to, this proceeding.

2. American Materials Corporation and its Harrison Pit ~nd Plant have
been subject to the provisions of the 1977 Mine Act at all times relevant to
this proceeding_.
3. Federal mine inspectors William D. Atwood and S~eve Viles were duly
authorized representatives ef the Secretary of Labor at all times relevant to
this proceeding.

4. The Petitioner has failed to prove the alleged violation with respect
to Citation No. 358304, April 26, 1978, 30 C.F.R. § 56.12-71.
5. The violation charged with respect to Citation No. 360204, April 26,
1978, 30 C.F.R. § 56.• 20-11 is found to have occurred as alleged.

6. All of the conclusions of law set forth in Part V, supra, are
reaffirmed and incorporated herein.
VII.

Proposed Findings of Fact and Conclusions of Law
i

The parties filed the posthearing submissions identified in Part I,
supra. Such submissions, insofar as they can be considered to have contained
proposed findings of fact and conclusions of law have been considered fully,
and except to the extent that such findings and conclusions have been expressly
or impliedly a·ffirmed in this decision, th~y are rejected on the grounds that
they are, in whole or in part, contrary to the facts and law or because they
are immateriai to the decision in this case.
VIII.

Penalty Assessed

Upon consideration of· the entire recbrd in this case and the foregoing
findings of fact and conclusions of law, I find that the assessment of a penalty is warranted as follows:
Citation No.

Date

360204

4/'2.6/78

30 C.F.R. Standard

Penalty

56.20-11

$300

ORDER
IT IS ORDERED that the Respondent's motion to dismiss at the close of
the Petitioner's case-in-chief as relates to an alleged violation of 30 C.F.R.
§ 56.12-71 be, and hereby is, GRANTED.
IT IS FURTHER ORDERED that the Respondent's motion to dismiss at the
close of th~ Petitioner's case-in-chief as relates to an alleged violation of
30 C.F.R. § 56.20-11 be, and hereby is, DENIED.
.
IT IS FURTHER ORDERED THAT the Respondent's October 27, 1980, motion to
dismiss be, and hereby is, DENIED.

1
.l. ~.....•

3 . .1·

IT IS FURTHER ORDERED that the Respondent pay a civil penalty in the
amount of $300 within the next 30 days.

~.-a.__~.
Cook

L----- '.Administq:i.tive Law Ju.dge
Distribution:
Linda L. Leasure, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015· Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Patrick Zohn, Esq., Office of the Solicitor, U.S. DeDartment of Labor,
881 Federal Office Building, 1240 East Ninth Street, Cleveland, OH
44199 (Certified Mail)
John W. Edwards, Esq., and David Wm. T. Carroll, Esq., Smith &.Schnacke,
Suite 700, 100 East Broad Street, Columbus, OH 43215 (Certified Mail)
Administrator for Metal and Nonmetal Mine Safety and Health, U.S.
Department of Labor
Administrator for Coal Mine Safety and Health, U.S. Department of Labor
Standard Distribution

1538

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

.QUN l S 1981
SECRETARY OF LABOR,
on behalf of
GARY M. BENNETT,

Complaint of Discharge,
Discrimination, or Interference
Complainant

Docket No. CENT 81-35-DM

v.
Baton Rouge Alumina Plant
KAISER ALUMINUM AND CHEMICAL
CORPORATION,
Respondent
DECISION
Appearances:

Marigny A. Lanier, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for Complainant;
Stephen H. ·Booth, Esq., Labor Counsel, Kaiser Aluminum
and Chemical Corporation, Oakland, California, for
Respondent.

Before:

Chief Administrative Law Judge Broderick

STATEMENT OF THE CASE
The Secretary of Labor asserts that Complainant Bennett was
suspended for thirty days without pay because he refused to work under
unsafe conditions. Respondent contends .that Bennett was disciplined
for insubordination. Respondent also contends that the complaint is
barred by time limitations.
A hearing was held, pursuant to notice, on February 26, 1981 in
New Orleans, Louisiana. Gary Bennett, Ferdinand Johnson, Ronnie Procell,
Riley Jester, all employees of Respondent, and Otis Pilgrim and Melvin
Robertson, employees of the Mine Safety and Health Administration (MSHA),
testified on.behalf of Complainant. Theodore Peno, ~Flavius Galloway,
Willie Brown, Alvin Saizan and Roland Bertram, employees of Respondent,
testified on Respondent's behalf.
·
Post-hearing briefs have been filed by both parties. Based on the
evidence presented at the hearing and the contentions of the par~ies, I
make the following decision.
FINDINGS OF FACT
1.
Respondent operates an alumina plant in Baton Rouge, Louisiana,
milling bauxite ore into alumina powder.

2.
The plant includes sand traps lo~ated in what is called the
tank farm. The sand traps are large, conically-shaped vessels that filter
and cook a caustic liquid known as "liquor" which helps remove impurities
from the bauxite ore.

1539

3.
The "liquor" is heated to between.200 arid 300 degrees Fahrenheit.
Even a small amount on a person's skin can cause a severe burn~
~.

•

Complainant was employed as a pipefitter and as such he participated
in the sandtrap "turnaround" which occurred every six months. This process
involves the draining and cleaning of the vessel.
5.
Complainant's duties during the turnaround included opening the
manway door, removing valves for repairs and setting "blinds," which are
metal discs the same diameter as the pipes and which prevent any flow of
liquid into the vessel.
6.
All valves are closed and tagged during a turnaround and the pump
to the feedline entering the sandtrap is turned off and.locked out.
7.
There are two "down~omer lines" which lead from the main feedline
to the sandtrap. Each of these lines contains double valves which are
shut during turnaround and can only be opened_ by hammering them with at
least an eight pound maul. Blinds are inserted in the downcomer lines as
added protection for the carpenters and laborers who enter the sandtrap
to remove built-up scale on the vessel.
8.
After the scale is removed from the inner walls, Complainant's
tasks were to "pop" scale from a side valve and reinstall the valves at the
bottom of the vessel. Popping a valve consists of heating and thereby
removing the scale around the valve with a torch.
9.
There is a sharp conflict in the testimony on the question of
whether Complainant did, or was required to, insert any pa~t of his body
into the vessel while popping the valve. I generally accept Complainant's
testimony, supported by the testimony of Ferdinand Johnson and Riley Jester,
on this issue, and find that Complainant did insert his arms and shoulders
inside the vessel while popping the side valve.
10. On October 11, 1979 sandtrap #3 was undergoing the turnaround.
By lunchtime Complainant had finished popping the side valve. He still
had to reinstall the other valves and close the vessel; the carpenters
and laborers had left the vessel.
11. During the lunch hour Complainant was told by some co-workers
that the blinds had been removed. Complainant and Ferdinand Johnson,
who worked with him, complained to their foreman, Willie Brown, that this
created a safety hazard.
12. In fact, only the two blinds on the downcomer lines had been
removed after the carpenters and laborers left the vessel. This was in
accord with past practice in the turnaround.
13. Complainant refused to return to work after lunch until a
"safety man" came to evaluate the situation.

'14. Foreman Brown notified Theodore Peno, Maintenance Supe~intendent
who came to sandtrap #3 with Maintenance Coordinator Flavius Galloway.
Peno and Galloway spent nearly 40 minutes checking the vessei and the
blinds and valves and determined that in their judgment, all safety
measures had been observed.
15. The matter was discussed with Complainant and Johnson. Peno
explained that he and Galloway had checked the entire s'ystem and he
offered to remain at ·the site. Johnson agreed to return to work but
complainant ref used a direct order to return.
16. On the foilowing day, October 12, 1979, Respondent suspended
complainant for 30 days without pay.
17. On February 4, 1980 Complainant filed a complaint with MSHA
and on October 13, 1980, the Secretary of Labor filed this action with
the Commission.
ISSUES
§

1.
Is the complaint barred by the time limitations contained in
105(c) of the Act?

2.
Did Respondent violate § 105(c) when it suspended Complainant
for 30 days without pay for refusing to perform his assigned duties on
October 11, 1979?
Discussion .
Complainant's original complaint was filed with MSHA nearly three
months after the end of the suspension period, and the Secretary's
complaint on his behalf was filed with the Commission more than eight
months after that. The statute provides that a miner "may" file a
complaint with MSHA within 60 days of the event complained of. § 105(c)(2).
The Secretary "shall" notify the miner of his determination within
90 days of the date it was received, § 105(c)(3), and, if he finds a
violation, "he shall immediately file a comp~aint with the Commission."
§ 105 (c) (2).
I conclude that none of the filing deadlines are jurisdictional in
nature. Rather, they are analogous to statutes of limitation, which may
be waived for equitable reasons. It has already been held that the
filing deadlines in discrimination cases arising under the 1969 Coal Act
are not jurisdictional. Christian v. South Hopkins Coal.Co., 1 FMSHRC
126, 134-36 (1979). The same result was obtained under .§ 111 of the
present Mine Act, which directs mine operators to compensate miners
while withdrawn from a mine pursuant to government order. Local 5429,
United Mine Workers v. Consolidation Coal Co., 1 FMSHRC 1300 (1979).
The proper test is whether tolling the filing period is consonant
with the purposes of the statute. American Pipe and Construction Co. v.
Utah, 414 U.S. 538, 557-58 (1974). Congress spoke plainly on the subject

\

when it declared that the 60 day filing period "should not be construed
strictly where the filing of a complaint is delayed under justifiable
circumstances." S. Rep. No. 95-181, 95th Cong., 1st Sess. at 36,
reprinted in, (1977) U.S. CODE CONG. & AD. NEWS at 3436. The deadlines
imposed on the Secretary also "are not intended to be jurisdictional.
The failure to meet any of them should not result in the dismissal of
the discrimination proceedings." Id.
Applying these standards, I find that the delay in filing the
original complaint was justifiable. Before the ~eriod expired, Complainant
asked Respondent'~ industrial relations representative which public
agencies deal with safety complaints, but receiv~d no response. Complainant
also brought his complaint to the attention of an MSHA inspector less
than two months after the suspension ended. The inspector mistakenly
gave Complainant the wrong name and the wrong phone number for properly
notifying MSHA. The delay of approximately one month was thus justifiable.
The Secretary's delay in processing the complaint cannot defeat the
action, in light of the legislative history quoted above. Moreov3r, it
is commonly held that the government is not affected by the doctrine of
laches when enforcing a public right. Intermountain Electric Co., 1980
CCR OSHD Para. 24202 (10th Cir. 1980); Occidental Life Insurance Co. v.
EEOC, 432 U.S. 355 (1977); Nabors v. NLRB, 323 F.2d 686, 688 (5th Cir.
1963). Respondent's plea of limitations is rejected.
Turning to the merits, the first issue is whether Complainant was
engaged in activity protected under§ lOS(c). Secretary of Labor
ex rel Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (1980). I find
that Complainant in good faith believed that it was dangerous to continue
working after the blinds were removed. Therefore, his complaint concerning
their removal was protected under§ lOS(c). Complainant's foreman
explained that the blinds were removed because there were no workers
inside the vessel. This did not satisfy Complainant so Brown called
Peno who agreed to investigate the complaint. Brown told this to
Complainant but Complainant remained dissatisfied and would not return
to work. Complainant then left to find the safety supervisor, which he
was unable to do. The safety supervisor, as it happened, was with an
MSHA inspector, who was inspecting other areas of the plant.
Complainant's refusal to work at this point was protected by§ lOS(c).
It had not been clearly explained to him that only the two blinds on the
downcomer lines had been removed. The parties agree that removal of all
blinds before the turnaround is finished would be an unsafe practice.
Complainant's honest belief in this condition was therefore a reasonable
one under the circumstances. Secretgry of Labor ex rel. Robinette
v. United Castle Coal Co., 3 FMSHRC 803, 812 (1981).
After Peno was notified of the complaint, he and Galloway, who both
parties trust as the expert on tank farm operations, spent nearly 40
minutes checking every aspect of the sandtrap turnaround. Peno, accompanied
by Galloway, then explained their findings to Complainant and told him

1 dr:-4 ,_,'J

that his job involved no safety hazard. Complainant still refused to
return to work.. Peno then offered to remain at the site and watch for
trouble but Complainant persisted in his demand for a safety man. Peno
then resolved to seek disciplinary action against Complainant.
I cannot conclude that Complainant's refusal to work was protected
at this point. It may be that a miner is "not required to accept the
foreman 1 s evaluation of danger~' Phillips v. IBMA, 500 F.2d 772, 780
(D.C. Cir. 1974), but neither may a miner insist unreasonably on a right
to refuse to work. Robinette, supra. Peno diligently investigated the
complaint and, after finding it baseless, thoroughly explained his
position to Complainant. Complainant still honestly believed the
condition to be hazardous but this belief was not a reasonable one. It
is important to note that Complainant had completed the task of popping
the valve which required inserting his body in the vessel. At the time
he refused to continue work, there was no requirement that he get inside
the vessel again to finish the turnaround. Peno and Galloway made it
plain to him that the procedure used with the blinds was the same procedure
he had worked under on prior turnarounds. Complainant's complaint was
protected; his continued refusal to work after Respondent's investigation
and explanation, I find to be unreasonable, and therefore not protected. !/
Complainant's defiance of Brown played some role in the disciplinary
action. However, ·Respondent has established that unprotected activity Complainant's refusal to work after Peno's explanation to him - was an·
important factor in the decision to suspend. In fact, until Complainant's
defiance of Peno, Peno had been making every effort to accommodate him.
I therefore find that Complainant would have been suspended for this
alone.
CONCLUSIONS OF LAW
1.
I have jurisdiction over the subject matter and the parties to
this proceeding.
2.
Complainant's complaint is not barred by the time'limitations
provisions of the Act.
3.
Respondent did not violate § 105(c) when it suspended Complainant
for 30 days without pay.

!/

The actual safety of the condition has some bearing on whether
Complainant's belief in an unsafe condition was a reasonable one, though
it is not controlling. A few days after the incident, Respondent requested
an MSHA inspector to tour the sandtrap area to see if there was merit to
the complaint. The inspector, who testified· at the hearing, was of the
opinion that the removal pf the blinds did not pose a safety hazard.

154:1

ORDER
Therefore IT IS ORDERED that the proceeding is DISMISSED.

j

~~ A41~~ vfe__

\

James A. Broderick
Chief Administrative Law Judge

Distribution:
Marigny A. Lanier, Esq. Office of the Solicitor, U.S. Department
of Labor, 555 Griffin Square, Suite 501, Dallas, TX 75202
(Certified Mail)
Stephen H. Booth, Esq., Labor Counsel, Kaiser Alumipum and Chemical
Corp., 300 Lakeshore Drive - 947KB, Oakland, California 94643
(Certified Mail)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE L\W JUDGES
2· SKYLINE, 10th FL.OOR
5203 LEESBURG PIKE
FALLS CHURCH, .VIRGINIA 22041

JUl15.

Complaint of Discharge,
Discrimination, or Interference

ARCH HOOVER,
Complainant

Docket No. WEVA 80-580-D

v.

North Branch Mine

ISLAND CREEK COAL COMPANY,
Respondent
DECISION
Appearances:

Charles Jr. Moats, Montrose, West Virginia, for Complainant;
Wayne Bussell, Esq., Lexington, Kentucky, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued Fepruary 23, 1981, a hearing in
the above-entitled proceeding was held on Apri~ 7, 1981, in Elkins, West
Virginia, under section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 815(c)(3).
After the parties had completed their presentations of evidence, I
rendered the bench decision which is reproduced below (Tr. 150-162):
This proceeding involves a Complaint of Discharge, Discrimination, or Interference filed on July 30, 1980, pursuant to section
105(c)(3) of the Federal Mine Safety and Health Act of 1977 by
Arch Hoover against Island Creek Coal Company. The Complaint alleges
that Island C.reek discriminated ag·ainst complainant by refusing to
allow him to hold or obtain a mechanic's job at respondent's North
Branch Mine.
The Complaint was filed under.section 105(c)(3) of the Act
because the Mine Safety and Health Administration declined to file a
complaint on Mr. Hoover's behalf under section 105(c)(2) of the Act
after finding, on the basis of MSHA's own investigation of the Complaint, that no violation of section 105(c)(l) of the Act had occurred.
I shall make some findings of fact which will be set forth in
enumerated paragraphs.
1.
Mr. Arch Hoover began working at Island Creek's North
Branch Mine on January 17, 1968. During most of that time he has
been a helper to the operator of a continuous-mining machine or
has.done other work operating equipment, but he has frequently
done mechanical work. On December 8, 1978, mechanic's job No. 105
was open and Mr. Hoover applied for that job, but the job was not
filled on the ground that no qualified bidder had applied for it.

2

That particular job required that the person who held it be a
certified electrician. Mr. Hoover admittedly is not a certified
electrician.
Mr. Hoover filed a grievance about not being awarded the
mechanic's job, but the grievance seems to have been withdrawn
with the understanding that Mr •..- Hoover would be sent to the
next class offered after that "occurrence for the purpose of enabling Mr. Hoover to become trained so as t~ be qualified to hold
a certified electrician's card issued by the West Virginia Department of Mines.
2.
Before Mr. Hoover could be sent to a school to become
a certified electrician, he learned that he could attend the
classes only if someone, in a position to know the facts, signed
statement to the effect that Mr. Hoover had had 3 years of electrical experience. Mr. Robert Severe, a UMWA committeeman, signed
a statement to the effect that Mr. Hoover had had the required
36 months of experience, but when the statement was given to
Mr. James Hamlin, superintendent of the U01;-th Branch Mine, he
stated that he could not agree that Mr. Hoover had accumulated
36 months of experience under the direct supervision of a certified
electrician. Mr. Hamlin's refusal to confirm that Mr. Hoover
possessed the requisite experience resulted in Mr. Hoover's not
being sent to the class~p to become a certified electrician.

a

3.
Three witnesses testified on behalf of Mr. Hoover to
the effect that at various times Mr. Hoover had acted as the sole
mechanic on their section when the regular mechanic was unavailable.
Those witnesses stated that Mr. Hoover performed both mechanical
and electrical work as well or better than other full-time mechanics
who hold certified electrician cards. The evidence shows, however,
that when Mr. Hoover performed the work of a mechanic, a section
foreman with a certified electrician's card was on duty on the
section.
4.
Mr. Hamlin explained when he testified in this case that
the class to which Mr. Hoover wanted to be admitted was a special 90hour class established with the approval of the West Virginia Department of Mines for the sole purpose of enabling some mechanics who
had been working for Isl~nd Creek for a number of years in that
position to become certified under the law in a way that would permit
them to be considered as lawful, certified, electricians when, in
fact, they would probably not have been able to pass the regular
examination given to those who became certified electricians under
the law as it is now administered.
Mr. Hamlin further stated that he checked with those company
personnel who were in a supervisory position over electrical work
and all of those individuals stated that they did not think Mr. Hoover
had done the kind of electrical work which would be required for him

3

to have been considered to have accumulated 36 months of experience
under the direct supervision of a certified electrician.
5.
Mr. Hamlin and Hr. Riggleman, who is a maintenance electrical supervisor, additionally explained that the 90-hour class,
which Mr. Hoover was not allowed to att~nd, was established for
people who had held a regular mechanic's job prior to the passage
of a new law pertaining to certifiecation of electricians, but who
could not have b~come certified under the new law except for attendance at the special 90-hour course. Therefore, even if Mr. Hoover,
a·t the time the 90-hour course was offered, had actually had 36 months
of experience, he would not have been qualified for that special
course set up for the benefit of those particular people who had been
working as mechanics prior to the passage of the West Virginia law
requiring people to become certified electricians if they were also
given the title of mechanic.
6.
There was introduced in evidence in this proceeding as
Exhibit A a portion of the West Virginia statute which defines what
a certified electrician is and that section, which is 22-l-l(d)(2),
provides that a person either has to pass the examination given by
the Department of Mines, or have 3 years of experience and complete
a coal mine electrical training program approved by the Department
of Mines. The program approved by the Department of Mines under
that section is the 90-lr6ur course which Mr. Hoover was not permitted
to attend because of his''failure tq qualify ror that special purpose.
The result is that he can no longer go to any existing or prospective
class because the West Virginia Department of Mines has indicated that
that type of method of becoming a certified electrician is no longer
available.
7.
Under the existing method of becoming certified, it is
necessary for a miner to become an apprentice electrician. He has
to take an 80-hour course and has to follow that up with training
in the mine under the direct supervision of a certified electrician
for a period of time and then, eventually, he has to take another
40 hours of instruction in the classroom and, finally, he has to pass
an examination given by the West Virginia Department of Mines.
8.
Mr. Hamlin has inqicated in his testimony that Mr. Hoover
was offered the possibility of enrolling in a course which would be
given during the day shift at the North ~ranch Mine and that course
might take, together with the apprentice training, up to 18 months
before one can become a certified electrician under the present
requirements,; Mr. Hoover does not work on the day shift, and he has
indicated that he does not find it possible to take advantage of the
training program offered on the day shift because it would require
_him to drive by himself about 85 or 90 .miles to attend that type of
training. Although Mr. Hoover now drives about 90 miles to work
at the North Branch Mine on the 4:00 p.m.-to-12:00 midnight shift,
he does so in the company of about ten other men who all ride in
a van. The result is that they can pool their resources and afford

4

to drive that far as a group, but Mr. Hoover says he cannot afford
to·do it.alone on the day shift a~ a single person. Consequently,_
he finds that it is economically infeasible to take advantage of the
pre.sent means of becoming a certified electrician.
I believe that those are the pertinent facts that have been
developed here today in the testimony of quite a few witnesses.
In order for Mr. Hoover to obtain relief under section 105(c)(l)
of the Federal Mine Safety and Health Act of 1977, he would have to
show that respondent has violated that section. That section reads
as follows:
No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the statutory rights of any miner, representative of miners, or applicant for employment in any coal or other mine subject to this
Act because such miner, representative of miners or applicant
for employment has filed or made a complaint under or related
to this Act; including a compiaint notifying the operator or
the operator's agent, or the representative of miners at the
coal or other mine of an alleged danger or safety or health
violation in a coal or other mine, or because such miner,
representative of miners or applicant for employment is the
subject of medical evaluations and potential transfer under a
standard published'-pu~suant to section 101 or because such
miner, representative of miners or applicant for employment
has instituted or caused to be instituted any proc'eeding under
or related to this Act or has testified or is about to testify
in any such proceeding, or because of the e~ercise by such
miner, representative of miners or applicant for employment on
behalf of himself or others of any statutory right afforded
by this Act.
As I explained in the preliminary discussion that I had before
the hearing started today, I had already studied Mr. Hoover's Complaint in this case and I tried my utmost to find some way to provide
for the relief which he seeks, which is to become a certified electrician, but before I can order Island Creek to send him to a class to
become a certifi.~d electrician, I would have to find ·that Island Creek
violated section 105(c)(l) and I haven't been able to find anything in
that section, or in the evidence introduced in this case, which would
permit me to make such a finding.
As I explained before, it looked to me as if the primary way that
I.-might find··a violation woui'd be if the evidence showed that Mr. Hoover
was asked to do the work of a mechanic, which, of course, also means
that he should be a certified electrician, and he were to refuse to do
that on the ground hat he was not a certified electrician, and the
company were to tell him that if he didn't do it. he would be discharged.
If the aforesaid things had occurred, I might then have been able to

5

find that there was a violation because he was objecting to doing
something which is hazardous, that is, do a job for which he is not
qualified by having the proper training. But, Mr. Hoover told me
very clearly and without any equivocation, that nobody ever ordered
him to do mechanical equipment work. He was asked to work on mechanical equipment on.occasion. On other occasions, he volunteered
to do mechanical work, but I haven't been shown, and nobldy has
alleged, that Island Creek coerced him into doing mechanical ~ark.
So, I can't. really find that the part of the Complaint which alleged
that Mr. Hoover was required to do mechanical work is really supported
by the evidence.
I think it was a mistake for Island Creek to have allowed
Mr. Hoover to work as the only mechanic on a given section at times
because there was testimony by several witnesses to the cf f ect that
there were times when Mr. Hoover was doing work which at least involved
electrical connections and hooking up electrical wires, for example,
in the installat~on of an electric motor. Mr. Hamlin pointed out,
however, that as far as he was concerned,_ that was not the kind of
electrical work that he feels is contemplated in the requirement
that a person be a certified electrician.
It is a fact that when Mr. Hoover did mechanical work, there was
a certified electrician present on the section. So, I can't really
find that there was a violation of the Federal Hine Health and Safety
Act, or the regulations ·~P.romulgated under that Act, when Hr. Hoover
worked as a mechanic on a section when the regular mechanic was
unavailable.
As Mr. Bussell pointed out in his argument, before I could order
Island Creek to do something that it hasn't already done, such as set
up a special class for the benefit of Mr. Hoover, I would have to find
that Mr. Hoover has been engaged ip some protected activity or that
Island Creek refused to let him go to one of those classes because of
his having been engaged in a protected activity. I haven't been able
to find any protect~d activity that he has been.engaged in.
There have been some cases before the Commission in which the
Commission has ordered a company to give an individual-certain types
of relief. For example, in Local Union No. 1110, U~fi~A, and Robert L.
Carney vs. Consolidation Coal Company, 1 FMSHRC 338 (1979), Carney was
given three letters of reprimand and placed on probation for 1 year
because of his union activities. He had left the continuous-mining
macliine and had gone to complain to other urtion officers and MSHA
because he was asked to operate the continuous~mining machine pending
receipt of a···known mixture of methane for checking the methane monitor.
Carney was told he could only make such compiaints and leave the
section when management approved it. Carney continued doing union
work without getting permission and that resulted in another letter of
reprimand.

6

The Commission in that case affirmed .an administrative law judge's
holding that this restrictive policy was a violation of Carney's rights.
The health and safety of miners made it necessary for .a union committeeman to do his work even though it might interfere with Consolidation's
ability to control production as it would prefer on a given occasion.
The Commission held that Consolidation's policy would impede a miner's
ability to contact the Secretary of Labor when safety violations or
dangers arise.
I refer to ·the Carney case primarily to illustrate the fact that
if Mr. Hoover had been engaged in some activity v:hich showed that the
company was about to do something that was hazardous or endangered
someone's life or health, then he would be entitled to relief because
he would have been engaged in a protected activity. The mere fact that
he agreed to do mechanic's work is not a protected activity, as I understand it, which would enable me to find that a violation of section
105(c)(l) occurred.
Mr. Moats explained to me--Mr. Hoats being the person who represented Mr. Hoover in this case--what the present West Virginia law is
on becoming a certified electrician and; as he understood that portion
of the West Virginia law, Mr. Hoover, when he worked solely as a mechanic on a section when the regular mechanic was absent, would have to
be an apprentice electrician and should have a card so stating from the
West Virginia Department Jf Mines. Mr. Moats suggested that the failure
of Mr. Hoover to be given that classification while he was acting as
the sole mechanic on a section may well be illegal under West Virginia
law.
I am not certain that Hr. Hoover is precluded from doing mechanical
work so long as a certified electrician is present, even under the present
West Virginia law. As I understand that law, it simply requires that a
person be an apprentice electrician under that statute if he wants to
become a certified electrician. Since Mr. Hamlin has indicated that
the present program is apparently going to be designed for the day
shift only, it wouldn't appear that Mr. Hoover would be able to qualify
for it in view of his economic problem of being unable to drive back
and forth to work on the day shift. I don't know that any good will
come out of this hearing; but I would hope that Island Creek would
endeavor to offer the program for an apprentice electrician on its
4:00-to-12:00 shift so that Mr. Hoover could get into the program and
could eventually become a certified electrician.
There was a lot of testimony in this case by Mr. Hoover's friends
and I think he must be a very fine person in order for these miners to
take off a day from work to come and testify in his behalf and I would
hope that their efforts are not in vain and that Mr. Hoover 'ivill be
given an opportunity to become a certified electrician. Everyone who
has testified here today has said that Mr. Hoover is an excellent
worker, that he is conscientious, that he has initiative, and I think
a man like that should be allowed to become as well-trained and educated
as possible and I hope the company will make a concerted effort to try

1:150

7

to see that Mr. Hoover gets the proper recognition and opportunity to
achieve the requirements for the position that he would like to hold.
But, as I have stated, I simply cannot find any way to find that
a violation of section 105(c)(l) occurred.
\\THEREFORE, it is ordered: .
The Complaint filed in Docket No. WEVA 80-580-D is denied for failure to
prove that a violation of section 105(c)(l) of the Federal Mine Safety and
Health Act of 1977 occurred.

~ CJ. rSt::-1) ;;_

Richard C. Steffey ~
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:
Charles Jr. Moats, Representative for Arch Hoover, Route
Montrose, WV 26283 (Certified Mail)

f.! 1,

Box 102A,

Wayne Bussell, Esq., Attorney for Island Creek Coal Company, P.O. Box
11430, Lexington, KY 4t575 (Certified Mail)
MSHA, Special Investigations, U.S. Department of Labor, 4015 l\'ilson
Boulevard, Arlington, VA 22203
Assistant Solicitor, U.S. Department of Labor, 4015 1\'ilaon Boulevard,
Arlington~ VA 22203

1:15J

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE. SUITE 400
DENVER. COLORADO 60204

)

JUN 16 1981

CIVIL PENALTY PROCEEDINGS

)

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

)
)
)

Petitioner,

DOCKET NOS. CENT 79-251-M
CENT 79-252-M
CENT 79-262-M

)

v.

)
)
)
)

UNITED NUCLEAR - HOMESTAKE PARTNERS,
now HOMESTAKE MINING COMPANY,

MINES: Section 23
Section 25
Section 13
(Consolidated)

)
)
)

Respondent.
~~~~~~~~~~~~~~~~~~~~

APPEARANCES:
Robert A. Cohen, Esq.
Office of the Solicitor
United States Department of Labor
4015 Wilson Boulevard
Arlington, Virginia 22203
For the Petitioner
Wayne E. Bingham, Esq.
Pickering & Bingham
920 Ortiz, N.E.
Albuquerque, New Mexico 87108
For the Respondent
Before: Virgil E. Vail
Administrative Law Judge
DECISION
I. Statement of the Case
The above-captioned civil penalty proceedings were brought ·pursuant to
section llO(a) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq.,(hereinafter referred to as "the· Act"). The
violations were charged in 25 citations issued to the respondent following
inspections at three of its mines between the dates of February 28,· 1979
and April 25, 1979.
Pursuant to notice, a hearing on the merits was held in Albuquerque,
New Mexico on June 3, 1980. The parties filed post-hearing briefs.

1;; t~) r.

-

l)

II.

Stipulations

At the outset of the hearing, the parties entered into· the following
stipulations:
1. The Section 23 and 25 111ines . are operated by United NuclearHomestake Partners and are subject to the Act.
2. The Administrative Law Judge has jurisdiction to hear these
matters.
3. The Section 23 mine is a large uranium mine with· approximately
486,000 hours worked in 1979.
4. The Section 25 mine is a medium size uranium mine with
approximately 287;000 hours worked in 1979.
5. The mine inspectors who issued the citations were employees of the
Mine Sa.fety and Health Administration and authorized ·representatives of the
Secretary of Labor.
6. Any penalties assessed in these proceedings would not affect the
operator's ability to remain in business.
7. The respondent demonstrated good faith in abating all the alleged
violations.
8. The Section .23 and 25 mines have a small history of previous
violations.
III. Settlement Proposals
CENT 79-251-'M
On May 22, 1980, petitioner filed a written motion for _approval of
a partial settlement ·agreement which had been entered into with the
respondent. At the hearing, the parties moved that the agreement be
approved. The agreement provides for withdrawal of Citation no. 151097
and for payment of the penalties proposed in connection with Citations
.numbered 151093, 151094, 151098·, 151440 and 151441. At the hearing the
pa~ties stated that they had agreed to settle three more citations.
Respondent agreed to pay the proposed penalty assessments in Citations
numbered 151089, 151090 and 151096. Both the writter. and oral motions
included a documented discussion of the six criteria as· set forth in
Section llO(i) of the Act.
Upon due.consideration, I conclude that the proposed settlements
should be approved. Approval of the settlement proposals are reflected
be low in the fin al order.
i

.

l r-5'\-{
) \.

CENT 79-252-M
The parties entered into an agreement to settle Citation no. 151439.
Respondent agreed to pay the full amount of the proposed penalty
assessment. Petitioner's writtert motion contained a complete discussion of
the elements set out in Section UO(i) of the Act and said-motion is
incorporated herein by reference.
The proposed settlement is hereb¥ approved, as reflecFed in the final
order.
At the hearing, petitioner moved that Citation no. 151606 be vacated.
In support of his motion, petitioner stated that.the wrong standard was set
forth in-the citation. Petitioner's motion is approved and Citation no.
151606 is hereby vacated.
Respondent agreed to pay the full amount of the assessed penalties in
Citation nos. 150800, 151603, 151609, 151610, 151611 and 151612. The
reasons, as set forth by the parties, were accepted by the undersigned and
the settlements were approved at the hearing.
CENT 79-262-M
The Secretary's written motion to approve settlement is granted.
Respondent agreed to pay the proposed assessment in full for Citation no.

151446.
IV. Discussion
CENT 79-251-M
Citation No. 151092
Citation no. 151092 alleges a violation of 30 C.F.R. 57.9-2, which
provid~s that: _"Equipment defects affecting safety shall be corrected

before the equipment is used."
Inspector Jose Aragon issued the citation charging that,."the
operating control for the service air tugger • . • was defective. The
tugger had to be operated with the open/close air valve on the air hose
eight feet behind the tugger."
The issue is whether or not the absence of an operating control device
on the tugger constituted a defect and, if so, did the defect affect the
safety of the miners?
Inspector Aragon testified that the tugger was being used as a winch
to hoist supplies onto supply cars. He _stated that the manufacturer is
supposed to install a control on the tugger, but in this instance the air
pressure was being regulated by a valve eight feet behind the tugger. (Tr.
17). I t was the inspector's opinion that the tugger was defective because

the handle and .part of the control on the tugger were missing, causing the
operator to regulate the air pressure by using an open/close air valve from
a position behind the machine. (Tr. 16 and 56). This, he stated, was a
safety hazard since the operator would not have complete control of the
materials that were being lifted and the materials could fall or the cable
could break if the lpad was dropped too suddenly. (Tr. 18).
Roy Souther, safety director at the mine, testified that the tugger
had not been manufactured with a control device. For this reason the
respondent.could not have known that the condition constituted a violation.
He stated that the tugger was a converted slusher and at one time. there had
been another ·control, but that was when it was being used to pull slusher
buckets and not as a winch. (Tr. 146).
Mr. Souther disagreed with the inspector's view that the operator
would have better control if he was operating the tugger with control on
the tugger itself. He was of the opinion that air pressure is like water
pressure and when the air is turned off the pressure stops immediately.
This would be true from either control position. (Tr. 129). Also, he
stated that the cable had a test strength greater than what the 90 pounds
of air pressure could break. The cable had 17,000 pounds weight strength.
(Tr. 128). The operator was operating the tugger with a back lash guard in
front of the tugger so in case the cable would break the guard would
prevent it from hitting the operator. (Tr. 132).
I find the testimony of the respondent's witness to be more credible
than that of the petitioner's. The operator would not have any greater
control if he was operating the machine from a valve on the tugger than by
using the open/close air valve. The citation is therefore vacated.

Citation No. 151095
Citation no. 151095 charges a violation of standard 57.19-101 which
provides that: "Positive stopblocks .or a derail switch shall be installed
On all tracks leading tO the Shaft COllar Or landing. II
As Mr. Aragon described the condition at the shaft on the day the
citation was issued, there was a supply car parked on the track
approximately 30 feet from the shaft. There was no derail switch or
positive stopblocks, which would prevent the car from going into the shaft.
(Tr. 21-22).
Respondent claims that there was a derail'switch. Roy Souther
testified that there was a switch tongue, which if tu_rned would direct a
car off the main line. (Tr. 134).

155[1

I am not persuaded by the testimony presented by the res·pondent, that
the tongue acted as a derail. switch. The testimony. is uncontroverted that
there was a rail car sitting on the main track and if pushed the car would
not have derailed~ rather it would have proceeded in the direction of the
shaft. (Tr. 149). Although the tongue could. be used to derail a car, it
was not being used as a· derail switch~ Therefore, I find that there was a
violation and the citation is affirmed.
.
Penalty Assessment
The bulk .of the testimony in this matter went to the issues of
respondent's negligence and the gravity of the violation.
The shaft gates are kept closed except when the conveyance is at the
collar and there are signs posted saying to keep the door shut. (Tt". 135).
The rails are on leveled ground and it wou.ld be highly improbable that a
rail car would roll into the shaft on its own. It would take two or more
people or a heavy piece of equipment .to push a car into the shaft •. Even
then, respondent offered testimony to the effect that· a car could not roll
through the shaft gates which are made from ·quarter inch steel and
completely cover the shaft. (Tt". 136 and 153). ·
For the reasons stated above, I conclude that the possibtlity of an
accident steeming from this violation would be remote. If an accident were
to occ~r, however, it could be serious in nature and affect up to-thirteen
miners. (Tr. 24) • . If find that the appropriate penalty. for this violation
is $100.00
Citation No. 151099
Citation no. 151099 alleges a violation of a mandatory safety standard
30 C.F.R. 57.12-68, which provides that: "Transformer enclosures shall be
kept locked against unauthorized en.try."
The sole issue is whether the transformer enclosure was "locked" as
defined by the standard.
The facts are undisputed. The transformer enclosure consisted of a
chain link fence 5 to 7 feet high which was stretched .and tied to the
corner posts. (Tr. 27 and 141). The chain link fence was attached to the
four corner posts with wire. (Tr. 34).
Mr. Aragon issued the citation based on his belief that 57.12-68
requires that there be a gate that is locked and that hooking a piece of
wire to hold the chain link to the post did not meet the requirements of
the st.andard.

I concur with the Petitioner's position, that merely wiring the chain:
link fence to the posts does riot satisfy the r~quirement that the enclosure
be locked.
Penalty Assessment
·Respondent's negligence ·w.as slight due to the fact that respondent was
in the process of completing the enclosure. A permanent gate was going .to
be installed and respondent had posted danger signs on the fence. (Tr. 141
and 142).
If an injury .were to occur it could have been of a serious nature.
However, it would be only slightly easier to gain admittance to the
transformer the way the fence was constructed the day the citation was
issued than if the gate had been completed and was padlocked.
For the reasons stated above, I find that a penalty of $,20 .00 is
appropriate.
Citation No. 151601
Mine inspector, Charles Sisk, issued Citation no. 151601, alleging
a violation of 57.3-22 1 / in that "proper ground coittrol practices were
not being followed by
miner ... " Mr. Sisk testified that the miner
was installing roof support starting at the face and working back toward
the existing ground support. It is an improper practice to go under
unsupported ground to start installing roof bolts. (Tr. 72). The inspector
stated that the problem with installing roof support, the. way it was being
done by the miner in the instant case, is that. he was 25 feet from any
existing support. (Tc. 73). Although Mr. Sisk tested the ground and it
appeared to be all right, he testified that the practice or how the miner
was.proceeding was what concerned him, rather than the condition of the
ground. (Tr. 102).

a

Respondent argues that MSHA should not determine when ground support
is required. (Respondent 1 s brief at p. 10). This, however, is not the
issue in the present. case. ·The only determination to be made is whether
proper ground control practices wer~· being followed. Respondent contends
that the ground was in good condition and 'did not require bolting and
therefore the petitioner did not prove that proper practices were not being
followed. Furthermore, respondent claims that the miner was acting on his
own and the respondent cannot. be held responsible for his actions.

1/ 57.3-22'Mandatory. Miners shall examine and test the back, face, and
ribs of their working places at the beginning of each shift and f~equently
thereafter. Supervisors shall examine the ground conditions during daily
visits to insure that proper testing and ground control practices are being
followed. Loose ground ·shall be taken down or adequately supported before
any other work is done. Ground conditions along haulageways and travelways
shall be examined periodically and scaled.or supported as necessary.

I find respondent's arguments to be unpersuasive. The miner was not
acting on his own when he was installing the roof bolts. George Ruff,
underground shift boss at Section 25, testified that the deter~ination that
ground support .should be installed was made by Mr. Lloyd. (Tr. 175). Mr.
Ruff also stated that the miner was not following good mining practices by
starting from the face and bolting out. (Tr. 177). The fact that the
method being used by the miner was. not .sanctioned by the company and was
not the general practice in the mine, does not relieve the respondent of
liability. Secretary of Labor v~ Nacco Mining; Company Docket No. VINC
76X99-P, (April 29, 1981).
I find that the citation should be affirmed.
Once it was determined
that ground support.was going to be put in, it was the responsibility of
the respondent to see that it was done in a proper and safe manner.

Penalty Assessment
Although the ground appeared to be solid, if a roof fall were to occur
a fatality could result.
r· find that the violation was of a serious
nature and that a penalty of $200.00 is appropriate.
Citation No. 151607
While inspecting the car shop, Mr. Sisk issued Citation no. 151607
based on the fact that a portable drill did not have a proper prong in the
electrical plug, thereby removing the continuity of the grounding circuit.
(Tr. 84). 2I
Respondent does not refute the fact that the grounding prong· in the
plug was missing. Rather, respondent contends tha~ petitioner failed in
his burden of proof in not proving that the drill was not otherwise
grounded or was not provided with equivalent protection.
Petitioner claims that the drill was portable and· therefore the only
proper grounding device would be the three prong plug. (Tr. 91). To
support respondent's position, that the drill had become a fixed piece of
equipment, George Ruff testified that the drill press was bolted to a
bench, which was then welded to a rock bolt plate. (Tr. 170).
I agree with petitioner that it was a portable drill. There is
nothing in the record that convinces me that the drill could not have been

2/ Citation no. 151607 alleges a violation of mandatory safety standard
57.12-25 which provides that:
"All metal enclosing or encasing electrical circuits shall be
grounded or. provided with equivalent protection. This requirement does not apply to battery-operated equipment."

1fi58

easily removed from the bench. Respondent's expert witness testimony was
all based upon the assumption that the drill was a stationary or fixed
piece of equipment. Therefore, his testimony is of no value in determining
whether a violation occurred.
I find that a violation did occur. The record is void of any evidence
that would prove that there was another method of grounding being used when
th~ citation was issued.
Petitioner established a prima facie case through
the testimony of M~. Sisk. Respondent then had the burden of proving that
the drill had been grounded in a way other than by the missing prong or
there was equivalent protection. This respondent failed to do.
Penalty Assessment
I find the respondent negligent in that it knew or should have known
of the condition .. Mr. Sisk testified that if the drill were to become
. energized the 120 volts could injure or even prove to be fatal. ('.rr. 92).
Based on his testimony, I find the violation to be of a serious nature. A
penalty of $130.00 is assessed for the violation.
Citation Nos. 151604 and 151614
Citation nos. 151604 2 / and 151614 3 /, both of which allege a
violation of mandatory safety standard S7 .12-10, will be discussed
together. The standard allegedly violated provides that:
57.12~10 Mandatory
Telephone and low potential signal wire
shall be protected, by isolatiori or suitable insulation, or
both, from contacting energized power conductors or any other
power source.

Respondent does not contend that the phone lines were isolated from
the power cables. The sole issue, therefore, is whether there was
"suitable insulation."

2/ Citation 151604 reads as follows: The mine telephone line is in
physical contact with 480 power cables at the 31E-8 substation (3 different
cables - 480 voits) and with the 18N feeder cable at 18N-31E intersection.
All of these (4) power cables were energized (480 volts).
3/ Citation 151614 reads as follows: cm the 640 level from the, station out
to the 640 transformer station the telephone circuit is in direct physical
contact with the 2300 volt primary feeder in 3 places and in contact with2
440 volt cables in 5 or. 6 places and also in· contact with the water line
cable in 2 places. (heat tape electrical cable).

1559

Charles Sisk, the mine insp.ector, who issued the citations testified
that even if the phone lines and cables were insulated the respondent
would·not have been in compliance- (~r. 116-119). It is the Secretary's
p_osition that the word "from," as contained in 57.12-10,4/ means that
there must be insulation in addition to what insulation would already be in
a power cable. in support of his position, petitioner cites a policy
memorandum, dated February 21, 1975, issued by the Assistant AdministratorMetal and Non-Metal Mine Health and Safety of the Mining Enforcement and
Safety Administration, the predecessor to MSHA. The memorandum interprets
30 C.F.R. § 57.12-82, which is similar to 30 C.F-.R. § 57.12-10. The
memorandum states that, "Jacketing as provided on a powerline by the
manufacturer is no.t adequate for the insulating purposes of Federal
mandatory standard 55, 56, 57.12-82. Additional insulation or separation
must be 'Provided •.• "
Respondent contends that the company was in compliance. It is
Respondents position that all the wires were adequately insulated and that
the standard does not require insulation in addition to that which is
already contained in the cables and wires.
Respondent's expert witness was Robert Witter, an electrical engineer.
He testified that Respondent's Exhibit 18, which is a piece of cable
similar to that used in the 31 East 8, is a shielded multi-conductor cable.
The cable consists of three inner conductors which are surrounded by a
layer of insulation. The conductors are sur_rounded by a filler and then
covered.by a concentric shield. Outside the shield there is another layer
of filler and then the jacket. (Tr. 161, 188-189)-. Respondent's Exhibit
19, the 2300 volt cable was constructed in a similar manner (Tr. 193).
The phone line, Mr. Witter stated, was a "shielded" cable. Shielded means
that there is a thread of wires that encircle the insulated conductors and
the wires are then covered by an outer jacket. (Tr. 187).
In his opinion there would no possibility of the phorte line becoming
energized if it came into contact with either of the- cables because there
was adequate insulation. (Tr. 191 and 193).
I find th~t both the phone lines and power conductors were adequately
insulated within the meaning of the standard. Petitioner's argument that
additional insulation is needed for··compliance is unconvincing. If in fact
additional insulation is required, the standard is unclear and does not
give adequate notice to mine operators.
This position is further supported by Judge Edwin S. Bernstein in his
interpretation of facts and standard 30 C.F.R. § 57.12-82, both of which
are similar to the present case. He held that,'' the "insulation" installed
by the manufacturer "insulated" the cables within the meaning of the
standard .•. if the Secretary of Labor required some special kind of
insulation or some additional insulation, he should have specified that in
the standard." Secretary of Labor v. Homestake Mining Company CENT 79-27,
August 20, 1980, review granted.
Accordingly, both citations are vacated.

4/

57-12-82 Mandatory. Powerlines shall be well separated or insulated
from waterlines, telephone lines, and air lines.

ORDER
CENT 79-251
The proposed settlement agreement is hereby approved for the citations
listed below and respondent is ordered to pay the designated amounts.
Citation
Citation
Citation
Citation
c:ltation
Citation
Citation
Citation

151089
151090
151093
151094
151096
151098
i51440
151441

$160.00
$122.00
$180 •. 00
$ 72.00
$140.00
$ 7&.00
$210.00
$180.00

Citations 151092 and 151097 are vacated.
Citation 151095 is affirmed and Respondent is ordered to pay a
$100.00 penalty.
Citation 151099 is affirmed and Respondent is ordered to a $20.00
penalty.

CENT 79-252-M
The proposed settlement agreement is hereby approved as listed below.
Citation
Citation
citation
Citation
Citation
Citation
Citation

151439
150800
151603
151609
151610·
15.1611
151612

$210.00
$195.00
$ 84.00
$195.00
$210.00
$1,95.00
$195.00

Citations 151606, 1516Q4 and 151614 are vacated.
Citation 151601 is affirmed and respo'ndent is ordered to pay a $200.00
penalty.
Citation 1516o7 is affirmed the proposed penalty of $130.00.

CENT 79-262
The proposed settlement agreement, whereby respondent agreed to pay
the proposed penalty of $106.00 for Citation 151446 is approved.
Respondent is ordered to pay the sum of $2,982.00 within forty days of
·this decision.

~le;.~
Administrative Law Judge

Distribution:
Robert A. Cohen, Esq.
Office of the Solicitor
United States Department of Labor
.4015 Wilson Boulevard
·Arlington, Virginia 22203
Wayne E. Bingham, Esq.
PICKERING & BINGHAM
920 Ortiz, N.E.
Albuquerque, New Mexico

87108

r6')(..,
. . l tl

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

JUN 1618

Phone (703) 756-6236

Contests of Citations

OZARK-MAHONING COMPANY,
Contestant
v.

Docket No. LAKE 80-253-RM
Citation No. 365457; 2/14/80

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

Docket No. LAKE 80-254-RM
Citation No. 366115; 2/14/80
Barnett Mine

•
DECISION
Shortly after the two cases captioned above were assigned to me,
the Contestant agreed that they be consolidated with the related penalty
cases when filed (see letter of May 1, 1980, from Contestant). On
April 10, 1981, I was advised that the penalty cases had been filed
and assigned to Judge Laurenson and had already been heard by him.
Judge Laurenson has now issued his decision in Secretary of Labor
v. Ozark Mahoning Company, LAKE 80-336-M- and LAKE 80-337-M (May 26, 1981).
Judge Laurenson accepted a settlement as to one of the citations
involved herein and assessed a penalty as to the other citation~ That
decision is binding on me.
The citations under review

are ~aerm~_,, 2.
Charles C. Moore, Jr.
Administrative Law Judge

Distribution:
Mr. M. L. Hahn, S. & I. R•. Director, Ozark-Mahoning Company, P. O.
Box 57, Rosiclare, IL 62982 (Certified Mail)
William G/ Pasternack, Esq., U.S. Department of Labor, Office of
the Solicitor, 230 South Dearborn Street, Chicago, IL 60604 (Certified
Mail)

1563

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

!JUN 1 6 1881
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ex rel THOMAS ROBINETTE,
Applicant

Complaint of Discharge,
Discrimination, or Interference
Docket No. VA 79-141-D

v.
UNITED CASTLE COAL COMPANY,
Respondent
DECISION ON REMAND
Appearances:

James H. Swain, Esq., Offic~ of the Solicitor, U.S. Department
of Labor, Philadelphia, Pemv;ylvania, for Applicant;
·Michael L. Lowry, Esq., Ford, Harrison, Sullivan, Lowry &
Sykes, Atlanta, Georgia, for Respondent.

Before:

Chief Administrative Law Judge Broderick

On April 3, 1981, the Commission remanded this case for a determination
as to "whether [Complainant] Robinette would have been fired for his
unprotected activity alone." Com. Dec. at 17-18. The parties were
ordered to file briefs on the issue, and were given the opportunity to
offer additional evidence. The.Secretary of Labor filed· a brief, but
Respondent stated that it was in receivership and unable to af:ford -the
expense of filing a brief. Neither party sought to introduce additional·
evidence.
The evid~nce shows that there were a number of factors involved in
Respondent's decision to discharge Robinette. He allowed his cap cord
to be severed, he shut down the belt conveyor, he disconnected the mine
phone, he failed to grease the feeder, he permitted a miner to run
through and destroy a line curtain while working as a miner-helper, and
on a number of occasions he generally neglected his- duties. ·of these
factors, I found the shutting down of the belt conveyor to be activity
protected under§ 105(c). This was not ·cited by Respondent as a reason
for discharging Robinette, but the Commission found as I did that it
played a role in the discharge. Com. Dec. at 16. The Commission further
found that Robinette had engaged in upprotected activities which were
involved in the decision to discharge him. The Commission characterized
the act of disconnecting the phone as "a flagrant disregard of mine
safety." Com. Dec. at 17.
Respondent has the burden of proving by a preponderance of all the
evidence that it would have fired Robinette solely because of the unprotected
activities. Secretary of Labor ex rel Pasula v. Consqlidation Coal Co.,
2 FMSHRC 2786, 2800 (1980).

It is not sufficient for the employer to show that the miner
deserved to have been fired • • • The employer must show that he
did i~ fact consider the employee deserving of discipline for
engaging. in the unprotected activity alone and that he would have
disciplined him in any event.
Fasula, supra. 1./
(1980).

See also Wright Line, 251 N.L.R.B. 150, 105 LRP~1 1169

Percy Sturgili, section foreman, testified that on May 30 Robinette
worked on the belt feeder and that part of his job was to grease the
tailshaft. On May 31 the feeder tailshaft broke and Sturgill concluded
that this was caused by failure to grease it the previous day. Sturgill
remonstrated with Robinette about this failu~e. On May 31, while
Robinette was working as a miner-helper, the miner ran through and
destroyed a line curtain. Sturgill blamed this incident on Robinette.
These incidents figured in Respondent's decision to discharge him on
June 4.
At the time of the cap lamp incident, Sturgill testified that he
saw Robinette disconnect the mine phone. He had a discussion with
Robinette concerning the feeder being shut down, and Robinette's light
being out. Although he did not discuss the phone incident until after
Robinette returned from shovelling spillage on th~ beltline, it is clear
that the phone incident was also involved in Respondent's decision to
discharge Robinette.
On the present record, it is difficult to decide whether Respondent
would have fired Robinette solely for the acts and omissions described
in the prior two paragraphs because it obviously involves a hypothetical
set of circumstances.· It is clear, however, that shutting down production
(which I found to be protected and the Commission affirmed) was the
final act or event for which he was fired. Using a test recently employed
by the NLRB,
[I]n those instances where after all the evidence has been
submitted, the employer has been unable to carry its burden, [I]
will not seek to quantitatively analyse the effect of the unlawful
cause once it has been found. It is enough that the employee's
protected activities are causally related to the employer.action
whic.h is the basis for the complaint whether that "cause" was the
straw that proke the camel's back or•a bullet between the eyes, if
it was enough to determine events, it is enough to come within the
proscription of the Act.
Wright Line, 105 LRID1 at 1175 n. 14.

1/ But £!_. Texas Dept. of Community Affairs v. Burdine,
U.S.
, 25 FEP Cases 113 (1981), a case brought under Title VII
of the Civil Rights Act.

1 I)r·sr

~)

The protected activities here were what "determined the event" Robinette's discharge - and this is what I meant in the conclusion in my
prior decision.that the protected activities were the "effective cause"
of the disd :irge.
I conclude that Respondent has not carried its burden under the
Pasula stanr~rd. Sturgill did not t~stify that he would have fired
Robinette fur his unprotected activities alone. Indeed, Sturgill did
not testify that he would have fired him for any;activities. The decision
to discharge was made by Jack Tiltson, Respondent's Vice President, who
did not testify at the hearing. Tiltson was told of the protected and
unprotected activities, and it would be speculative on this record to
decide whether or not he would have regarded the unprotected activities
as sufficient grounds for discharge. There is no evidence of disciplinary action taken by Respondent involving like conduct in the past.
It is not enough that Robinette's work performance was less than
exemplary. It is not enough that he "deserved" to be discharged, not
enough that his unprotected activity was "a flagrant disregard of mine
safety." Since I cannot accurately assess the extent to which his
unprotected activity motivated the discharge, I must conclude that
Respondent's burden has not been carried.
ORDER
I conclude on the basis of the whole record that Respondent has not
established by a preponderance of the evidence that Robinette would have
been discharged for unprotected activities alone.
Therefore my order of March 13,

198~

IS REAFFIRMED.

-tau~ ~k/ivr>d~e/(
v/ James
A. Broderick
Chief Administrative Law Judge
Distribution:

By certified mail.

Michael L. Lowry, Esq., Ford, H_arrison, Sullivan, Lowry & Sykes,
1400 Harris Tower, 233 Peachtree St., N.W., Atlanta, GA
James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor,
14480-Gateway Bldg., 3535 Market St., Philadelphia, PA 19104
Special Investigation, MSHA, U.S. Department of Labor, 4015 Wilson
Blvd., ArLington, VA 22203
Harrison Combs, General Counsel, United Mine Workers of America,
900 Fifteenth St., N.W., Washington, DC 20005
Thomas A. Mascolino, Esq., Associate Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Arlington, VA 22203

156()

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

JUN 18 1~

Civil Penalty Proceeding

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

Docket No. PENN 80-267
A.O. No. 36-02347-03015
Preparation Plant

v.
BRADFORD COAL COMPANY, INC.,
FUEL FABRICATORS, INC.,
INDIANA STEEL AND FABRICATING co.'
Respondents

DECISION AND ORDER
On June 16, 1981, this matter came on for a hearing on
(1) cross motions for summary decision filed by Fuel Fabricators Co., Inc., and the Secretary, (2) a motion to dismiss by
Indiana Steel and Fabricating Co., and (3) a motion to
implead a third party respondent. By order of June 1, 1981,
Bradford Coal Co. was dismissed fro~ the case.
The cross motions are supported by a stipulation of
mat:terial facts and waiver of an evidentiary hearing. Indiana
Steel moved to dismiss on the ground it paid the only penalty
with which it was charged. 1/ Fuel Fabricators opposes this
motion on the ground that Indiana Steel as general contractor
was legally responsible for the five violations in question.
Based on an independent evaluation and de novo review of the
circumstances, I conclude the motion to---ciismiss as to 8itation
No. 846927 should be denied but as to the other four electrical
violations it is granted. As to the· four electrical violations,
the Secretary's motion for summary decision against Fuel
Fabricators ~s /''granted and the cross motion denied.
Findings of Fact
1. At all times pertinent, Fuel Fabricators and Indiana
Steel and Fabritating Company were mine operators and statutory

17 At the hearing, Indiana Steel declined an evidentiary
hearing to dispute the facts set forth·in the stipulation or
to brief its claim that the Commission is without authority
to determine de novo the "responsible operator" in a multirespondent penalty proceeding.

156·7

agents within the meaning of section 3(d) and (e) of the
Mi.ne Safety Law. 30 U.S.C. § 802(d) and (e).
2. At the time the violations·alleged occurred, Fuel
Fabricators, the owner-operator, had overlapping control
over and supervisory responsibility for compliance with
the Mine Safety Law at the site of the preparation plant
in question.
3. Except as indicated, at. the time the violations
alleged occurred, Indiana Steel, the builder-operator, had
overlapping control over and supervisory responsibility for
compliance with the Mine Safety Law at the site of the
preparation plant in question.
_ 4. The stipulated and undisputed 2/ facts show Fuel
Fabricators and Indiana Steel were jointly and severally
liable for the condition set forth in Citation No. 846927.
5. The stipulated facts show Fuel Fabricators and its
electrical contractor and statutory agent, Meyer Brothers of
Philipsburg, Pennsylvania, were responsible for the electrical
equipment violations found in Citations Nos. 846929, 846930,
846931 and 846932.
6. The stipulated facts show Indiana Steel had no
responsibility for creation or abatement of the conditions
on the electrical equipment.
Conclusions of Law
1. The claim that the construction site and the construction
activity at the new coal preparation plant were not subject
to regulation under the Mine Safety Law 'is without merit.
I find Congress intended to subject the construction activity
involved in building.the new plant to MSHA jurisdiction
and regulatio·n from the time the first miner-employees
entered the site to commence work on the new plant. The fact
that Fuel Fabricators failed to file an identity report
within 30 days after it opened the mine site was no ground
for denying MSHA jurisdiction to regulate that activ.ity.
The express terms of the Act as well as its legislative
history show Congress intended coverage of the Mine Safety
Law to be as broad as the constitutional power conferred by

27 Where the parties fail to show there is a disputed
issue-of fact, it is unncessary to hold an evidentiary
hearing. Castle v. Pacific Legal Foundation, 445 U.S. 198
(1980).

the Commerce Clause. United States v. Dye Construction Comkany,
510 F.2d 7~, 83 (10th Cir. 1975). The objective was to ma e
maximum use of the connnerce. power to improve occupational
safety and h·ealth in the ijation' s mines and to avoid the
disruptions to" production that imped~ and burden commerce.
Charles T. Sink, Dkt. No. HOPE 75-679 (Dept. of Int., OHA,
OALJ, May 19, 1975), aff'd. 1 MSHC 1362 (1975); Secretary
v .. Shinyara, 1 MSHC 1450 (M.D. Pa. 1976); Mar~hall v. Bosack,
1 MSHC 671 (E.D. Pa. 1978); Energy Fuel Nuclear, Inc., 1 ·
MSHC 1747 (1979); Sun Landscaping & Supply .Go., 1 MSHC 2444
(1980).
.
Congress, has plenary power to regulate activities in
and affecting interstate connnerce and in this instance has
specifically determined that the construction of structures
and facilities including "custom coal preparation facilities"
that are "to be used in" the processing of coal to be sold
either locally or in interstate commerce is an activity
subject to regulation. § 3(h)(l) of the Mine Safety Law.
30 U.S.C. § 802(h)(l). Cases cited, supra. See also,
Texas Utilities Generating Company, 1 MSHC 2091 (1979);
Heart of Atlanta Motel v. U.S., 379 U.S. 241 (1964); Katzenbach
v. McClun~, 379 U.S. 294 (1964); Wickard, v. Filburn, 317
U.S. 1111942). As the stipulated fact~ and the reasonable
inferences to be drawn therefrom show, there was apparently
a steady flow of construction materials to the mine site
from the time Indiana Steel began its construction of the
$17,000,000 facility. I findi therefore, there was a direct
nexus between the construction activity at the mine site and
the flow of goods and materials in commerce. United States
v. Dye Construction Company, supra. I also find that even if
all of the construction materials used in the new plant were
produced and purchased wholly within the state of Pennsylvania
the business of building coal preparation plants is a class
of activity the cumulative effect of which clearly affects
interstate commerce. Usery v. Lacy, 628 F.2d 1226 (9th Cir.
1980); Godwin v. OSHRC, 540 F.2d 1013 (9th Cir. 1976) and
cases cited supra.
2. As the foregoing shows, Fuel Fabricators' suggestion
that the Act does not apply until the coal preparat~on plant
becomes operational, i.e., actually processes coal for sale
in or affecting commerce is also without merit. Texas
.
Utilities Generating Company, supra; Energy Fuel Nuclear, Inc.,
supra. In enacting the Act, Congress made a specific finding
that. "the.ais~uption of production and the loss of income to
operators and.miners as a result of coal or other mine
accidents or occupationally caused diseases unduly impedes
and burdens commerce." 30 U.S.C. § 80l(f). Thus, Congress
has determined that a class of activity, unsafe mine operations,

1R6fl

including construction operations has a substantial economic
effect on commerce. I conclude therefore that the construction
activity that precedes production activity at the mine site
in question is included in the class of activity that as a
matter of law affects interstate commerc~. · This coverage I
find is consistent with the congressional pn:cpose to reach
as broadly as constitutionally permissible working conditions
and practices in the nation's mines, since fiv~unifo~m coverage
would give unsafe employers a competitive advantage. The
"substantial economic effect" test makes irrelev1.nt any
determination of what is "in" o:r:. "out" of the "current of
commerce". United States v. Wrightwood Dairy Co., 315 U.S.
110, 119 (1942). An activity that takes place wholly
intrastate may be subjected to congressio'nal refulation
because of the activity's impact in other states--regardless
of whether the activity itself occurs before or during or
after interstate movement. United States v. Rock R0''"" 1 Cooperative, Inc., 307 U.S. 533, 569 (1939). Accord_:_~. Shreveport Rate Cases, 234 U.S. 342 (1914). As the Supreme
Court has noted: "There is a basis in logic and experience
for the conclusion that substandard labor conditions among
~- any group of employees, whether or not they are personally
engaged in commerce or production, may lead to strife disrupting
an entire enterprise." Maryland v. Wirtz, 392 U.S. 183,
192 (1968). See also, Pere~ v. U.S. 402 0.S. 146 (1971);
Marshall v. Bosac~upra; Marsharr-v. Kraynak, 1 MSHC
1685 (W.D. Pa. 1978); Godwin v. OSHRC, supra; Usery v. Lacy,
supra; Island County Highway Dept., 2 MSHC 1174 (1980);-0gle Co. Highway Dept., 2 MSHC 1255 . (1981).
3. Under the Mine Safety Law, Fuel Fabricators, the
owTier-operator, and its independent contractors Indiana
Steel and Meyer Brothers were responsible for mine safety
hazards which they either created or had responsibility
for abating at the new preparation plant. Old Ben
Coal Company, 1 MSHC 2177 (1979), aff'd, unpublished order,
(D.C. Cir. December 9, 1980), see, 2 MSHC 1065; Republic
Steel Corporation, 1 MSHC 20020979); A.B.C. v. Andrus, 581
F.2d 853 (D.C. Cir. 1978); BCOA v. Secretary, 547 F.Zd 240
(4th Cir. 1977); S. Rpt. 95-181, 95th Cong., 1st Sess. 14
(1977).
4. In the execution of their ~esponsibility for
enforcement of the Act, the Secretary and the Commission are
authorized to assess and to ·apportion or allocate civil
penalties between independent contractors and owner-operators.
In the exerci~e of its adjudicatory oversight power, the
Commission ha:s the ultimate authority to determine de novo
the allocation of responsibility for contested violations.
BCOA v. Secretary, supra at 247; NISA v. Marshall, 1 MSHC

1570

2033, 2040-42 (3rd Cir. 1979); Old Ben, supra; Secretary
v. Morton Salt, Dkt. CENT 80-59-M, Order On Motion To Dismiss
Third-Party Petition, dated April 14, 1980, review denied,
2 FMSHRC (May 1980); 45 Fed. Reg. 44,497 (General
Enforcement Policy for Independent Contractors); 30 C.F.R. §
45.2(c).
5. The stipulated and undisputed facts show Fuel
Fabricators and Indiana Steel shared functional control over
the area involved in the violation cited in Citation No.
846927 in that the latter was responsible for placing the
combustible debris within 25 feet of the flammable liquid
storage tank and the former for removal of the same. I
conclude that by entering into a joint arrangement and
responsibility for accumulation and removal of the debris
these parties shared equal responsibility for compliance and
for the violation that admittedly occurred.
6. Based on an independent evaluation and de novo
review of the circumstances including the gravitY-(low) and
the negligence (slight), I find, after taking into account
the other statutory criteria, that the amount of the penalty
warranted is that recommended by MSHA, namely, $130, one
half of which is assessed against Fuel Fabricators and the
other half against Indiana Steel. 3/ The violation will be
recorded as part of the prior history of both operators.
7. The stipulated facts show the four electrical
violations were perpetrated as the result of.actions by Fuel
Fabricators and/or its electrical contractor Meyer Brothers.
The undisputed facts show Indiana Steel had neither functional
nor supervisory responsibility for these violations. While
the owner operator is automatically responsible for violations
by its independent contractors, I can find nothing in the
law or its underlying policy that makes independent builderoperators vicariously liable for violations by owner-operators
and other contractors working on the same site in the absence
pf a showing that with the exercise of due diligence the
general contractor should have been aware of the violation
and taken realistic action to abate the same in order to
protect its own employees or subcontractors. Compare,
Anning-Johnson Co. v. OSHRG, 516 F.2d 1081 (7th Cir. 1975);
Grossman Steel & Aluminum Corp., 4 OSHRC, BNA, 1185 (1975)
with Central of Georgia R.R. v. OSHRC 576 F.2d 620 (5th
Cir. 19 78)-.
.
3/ At the hearing, Indiana Steel agreed to drop any
further contest of this violation and to pay a penalty of
$65.00.

1571

8. I note .that the contract between Fuel Fabricators
and Indiana Steel expressiy limits the latter's responsibility
for indemni.fication -of· Fuel Fabricators to violations cornmitted
by Indiana Steel or its subcontractors. Thus, in addition
to the f·act that Fuel Fabricators -was not at liberty to
contract out its statutory responsibility as owner-operator,
so also, ·it may not seek to have the Cornmission impose a
duty·of contribution or indemnification where there is no
basis in fact for finding the independent contractor jointly
or severally liable. I realize that the right to indemnification
may arise without agreement and by operation of law to
prevent a result which is regarded as unfair or unjust.
This ~emedy, however, it limited to indemnitees who are
personally free from fault such as where an owner-operator is
held vicarously liable for the violations of a culpable
independent contractor.·w. Prosser, Handbook of the Law of
Torts, § 51 at 310-311 (4th ed. 1971 .
9. While it might have been logical for MSHA to charge
Meyer Brothers as well as Fuel Fabricators with the four
electrical violations, this is no defense to Fuel Fabricators. 4/ The fact that another.employer may be jointly
responsibie,is irrelevant to a finding of violation by the
employer actually cited. Central of Georgia R.R. v. OSHRC,
supra, 576 F.2d 625.
10. Based on an independent evaluation and de novo
review.of the circumstances, I find Fuel Fabricators and not
Indiana Steel was responsible for the four electrical
violations. I further find that in each instance the
gravity was low and the negligence ordinary and after taking
into account the other statutory criteria the amount of the
penalty warranted for each violation is that recommended by
MSHA, namely:
Citation

Amount

846929
846930
846931
846932

$122
140
66
140
ORDER

Accordingly, it is ORDERED:
4/ Meyer Brothers was not cited because its presence
at the site had long since been terminated.

l
(.
l t"7'J
f

1. ·That Fuel Fabricators' motion to implead third
party respondent or for sunnnary decisron is DENIED;
2. ·That Indiana Steel's motion to dismiss is DENIED
as to Citation 846927 and otherwise GRANTED;
3. That the Se~retary's motion for summary decision
against Fuel Fabricators is GRANTED IN PART and otherwise
DENIED;
4. That for .the five violations found, Indiana Steel
pay a penalty of ·$65 and Fuel Fabricators a penalty of $533
on or before Wednesday, June 30, 1981 and that subject to
payment the captioned matter be D MISSED.

Joseph B. Kennedy
Administrative Law Judge
Distribution:
Timothy Parsons, Esq., Gary Kamarow, Esq., Loomis, Owen,
Fellman & Howe, 2020 K St., NW, Washington, DC 20006
(Certified Mail)
Dwight L. Koerber, Esq., Box 1320, Clearfield, PA 16830
(Certified Mail)
Catherine Oliver, Esq., U.S. Department of Labor, Office
of the Solicitor, 3535 Market St., Philadelphia, PA 19104
(Certified Mail)
John O'Donnell, Esq., U.S. Department of Labor, Office of
the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)

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

Civil Penalty Proceedings

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

-:

Petitioner

Docket No. VINC 79-93-P
A.O. No. 12-01433-03002

v.
JOHN L. HAVILAND, ROBERT P.
HAVILAND, AND CLEVE RENTSCHLER,
d/b/a/ HAVILAND BROTHERS COAL
COMPANY,
Respondent

Docket No. VINC 79-102-P
A.O. No. 12-01433-03003
Haviland Strip Mine

DECISIONS
Appearances:

Rafael Alvarez, Esq., Office of the. Solicitor, U.S. Department
of Labor, Chicago, Illinois, for the petitioner;
George A. Brattain, Esq., Terre Haute, Indiana, for the
respondent •.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern proposals for assessment of civil penalties
filed by the petitioner against the respondent pursuant to section llO(a) of
the Federal Mine Safety and Health Act of 1977, 30 u.s·.c. § 820(a), charg·ing
the respondent with two alleged violations of certain mandatory safety and
health standards found in Part 71, Title 30, Code of Federal Regulations.
Respondent filed timely answers and a hearing was convened in Terre Haute,·
Indiana, on July 1, 1980, and the parties appeared _and participated therein.
In view of a pending court action taken by the Secretary at the time the
hearing was conducted, respondent's participation was limited to a jurisdictional argument asserting that respondent is not subject to the Act because
it is a small, family-owned business, whose. products are sold only intrastate within the State of Indiana, and to a limited cross-examination of
petitioner's witnesses. Aside f~om its jurisdictional arguments, respondent
offered no defense to the citations and presented no testimony or other evi~
deuce disputing the citations. The hearing was recessed and continued until
May 19, 1981, when a second hearing was conducted for the purpose of permitting respondent to present its case. The parties·appeared, but the
respondent again declined to present any testimony or evidence in defense
of the citations, _and reasserted its previously advanced jurisdictional
arguments.

1574

Attached to, and incorporated by reference herein, is a copy of a previous order issued by me on January 22, 1981, summarizing the arguments presented by the parties at the July 1, 1980, hearing, as well as the testimony
and evidence presented by the petitioner in support of its case, and certain
stipulations and agreements entered into by the parties, including matters
which are part of the record in the litigation pending in the district court.
Issues
In addition to the jurisdictional question, the issues presented in these
proceedings are (1) whether respondent has violated the provisions of the Act
and implementing regulation as alleged in the proposals for assessment of
civil penalties filed in these proceedings, and, if so, (2) the appropriate
civil penalties that should be assessed against the respondent for the alleged
. violations based upon the criteria set forth in section llO(i) of the Act.
Additional issues raised by the parties are identified and disposed of in the
course of these decisions.
In determining the amount of a civil penalty assessment, section llO(i)
of the Act requires consideration of the following criteria: (1) the operator's history of previous violations, (2) the appropriateness of such penalty
to the size of the business of the operator, (3) whether the operator was
negligent, (4) the effect on the operator's ability to continue in business;
(5) the gravity of the violation, and (6) the demonstrated good faith of the
operator in attempting to achieve rapid compliance after notification of the
violation.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164,
30 u.s.c. § 801 et~·
2.

Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i).

3.

Commission Rules, 29 C.F.R. § 2700.1 et~·
Findings and Conclusions

The thrust of respondent's defense in this case is the assertion that
it operates a small family-owned mining operation as a part-time venture
employing no one but the owners, and that any coal which is mined is sold
strictly intrastate to local customers.
. Respondent contends that its operation does not meet the definition of
"interstate commerce" as provided by law, and asserts that it is not subject
to the Act since its activities are conducted solely within the State of
Indiana, and because its activities do not in any way affect commerce. In
order to decide this question, it is necessary to examine the constitutional
underpinnings of Federal jurisdiction over the mining industry.

157f.l

Article I, Section 8, Clause 3, of the Constitution gave Congress the
pow:er to "regulate Commerce-~ * * among the several States
* *·" The
U.S. Supreme·. Court has a long history of upholding Federal regulations of
ostensibly local activity on the theory that such activity may have some
effect on interstate commerce.

*

In Wickard v. Filburn, 317 U.S. 111 (1942), the Court upheld a Federal
law regulating the production of wheat which was "not intended in any part
for commerce but wholly for consumption on the farm." Id. at 118. The
Court stated that "even i f appellee's a~tivity be localand though it may not
be regarded as commerce, it may still, whatever its nature, be reached by
Congress if it exerts a substantial economic effect on interstate commerce,
and this irrespective of whether such effect is what might at some earlier
time have been defined as 'direct' or 'indirect.'" Id. at 125.
In 1975, the Court elaborated on this idea, stating that "[e]ven activity
that is purely intrastate in character may be regulated by Congress, where the
activity, combined with like conduct by others similarly situated, affects
commerce among the States or with foreign nations." Fry v. United States,
421 U.S. 542, 547 (1975). More recently, the Seventh Circuit Court of Appeals
relied upon Wickard when it said that the commerce clause "has come to mean
that Congress may regulate activities which affect interstate commerce."
United States v. Byrd, 609 F.2d 1204, 1209 (7th Cir. 1979) (emphasis in
original).
~~
These principles have often been relied on by the lower courts in ruling
on the coverage of the present Act and its predecessor, the Federal Coal Mine
Health and Safety Act of 1969. One leading case is Marshall v. Kraynak,
457 F. Supp. 907 (W.D. Pa. 1978), aff'd., 604 F.2d 231 (3d Cir. 1979), cert.
denied, 444 U.S. 1014 (1980). There, the Court upheld the applicability of
the 1969 Act to a small mine which was owned and operated entirely by four
brothers. No other personnel had worked there for at least 7 years, and the
brothers had no intention of hiring other employees in the future. The
brothers contended that all of the coal which they mined was sold and consumed
within the State of Pennsylvania and did not involve interstate commerce. Id.
·.at 908. The defendants admitted, however, that more than 80 percent of their
production was sold to a paper-processing corporation which was "actively
engaged in interstate commerce." ·Id. at 909. The Court held that "the
selling by the defendants of over 10,000 tons of coal annually to a paper
producer whose products are nationally distributed enters and affects interstate commerce within the meaning of * * * the Act." Id. at 911.
A similar case was Secretary of the Interior v. Shingara, 418 F. Supp.
693 (M.D. Pa. 1976), involving a mine which was operated entirely by twa
brothers, Edward and Frederick Shingara. In the words of the Court, "Edward
[went] underground, while Frederick [did] the hoisting." Id. at 694. The
Court found that the fruits of their labor were sold as follows:
The Shingara coal is sold primarily to Calbin V. Lenig
of Shamokin, Pennsylvania who resells it, along with other

coal whtch he has gathered, to Keystone Filler and Manufacturing Co., Inc. of Muncy, Pennsylvania an~ Mike E. Wallace
of Sunbury, Pennsylvania. Keystone Filler combines the
Shingara-Lenig coal with others in order to achieve a particular ash content, dries the mixture, and grinds i.t into a
powder which is shipped to customers outside of Pennsylvania •.
And, at pages 694-695:
Congress intended to regulate connnerce to "the maximum
extent feasible through legislation." S. Rep. No. 1055,
89th Cong. 2d Sess. 1 (1966) U.S. CODE CONGRESSIONAL AND
ADMINISTRATIVE NEWS, 89th Cong. 2d Ses~. 2072.

*

*

*

*

*

*

*

Even if it were determined that the Shingara coal.does
not "enter connnerce" it must be concluded, under the extremely
expansive intepretations given to the regulatory power of
Congress, that the activity in question "affects connnerce"
and is thereby subject to the Act. Cf. Heart of Atlanta Motel
v. U.S., 379 u. s. 241, 85 s.ct. 348,l3 L.Ed2d 258 (1964);
Kat"'Umback .v. McClung, 379 U.S. 294, 85 S.Ct9 377, 13 L.Ed.2d
290 (1964). Although the activity in question here may seem
on first·examination to be local, it is within the reach of
Congress because of its economic effec·t on interstate connnerce.
See Beckinan v. Mall, 317 U.S. 597, 63 §.ct. 199, 87 L.ed. 488
(1942).
The Shingara Court compared the facts of the case to the facts in Wickard
and concluded that "the Shingara coal mining activity, which has an even more
direct impact on the coal market, also 'affects connnerce' sufficiently to
subject the mine from which it emanates to federal control."
In both Kraynak and Shingara, the coal in question was being sold to
parties who were engaged in interstate commerc-e. In other mining cases,
such facts were not shown, but the courts nevertheless utilized the seminal
Wickard decision to ·find that the activities in question "affected commerce."
Marshall v. Kilgore, 478 F. Supp. 4 (E.D. Tenn. 1979), involved a specific
agreement between the owner of a coal mine and his buyer that the latter
would sell the coal only within the state and not place any of it into
interstate commerce. In holding that interstate commerce was still
affected, the Court went back to the following passage from Wickard:
It can hardly be denied that a factor of such volume and
variability as home-consumed wheat would have a substantial
influence on price and market conditions. This may arise
because being in marketable condition such wheat overhangs
the market and if induced by rising prices tends to flow into
the market and check price increases. But if we assume that

1

r7r{

.A..d

it is never marketed, it supplies a need of the man who grew
it which would otherwise be reflected by purchases in the
open market. Home-grown wheat in this sense competes with
wheat in commerce. 478 F. Supp. at 7, citing 317 U.S. at 128.
The Kilgore Court found it "inescapable that the product of the defendant's mine would have an affect (sic) on commerce. The fact that the
defendant's coal is sold only intrastate does not insulate it from affecting
commerce, since its mere presence in the intrastate market would effect (sic)
the supply and price of coal in the.interstate market." 478 F. Supp. at 7:See also Marshall v. Bosack, 463 F. Supp. 800, 801 (E.D. Pa. 1978) ("The Act
does not require that the effect on interstate ~ommerce be substantial; any
effect at all will subject [the operator] to the Act's coverage").
In Kraynak, the Court rejected the argument that since there were no
miners, other than the partners, the Act's provisions did not apply to the
mine, and in so doing stated as follows:
The legislative history of the Act clearly indicates that
Congress did not intend to create a special class of mines
exempt from its coverage. The framers were concerned
specifically with the Nation's attitude permeating the coal
industry that mining was a hazardous occupation. Despite the
hazardous nature, the Human Resources Committee was determined
that these hazards be substantially reduced or eliminated.
1977 U.S. Code, Cong.· and Adm. News, Vol.. 3 page 3403. To
this effect, the Committee announced that it was essential
that there be a common regulatory program for all operators
and equal protection under the law for all miners.
By requesting support for differentiation between owneroperated mines from non-owner miners where employees labor,
the defendants seek to place a value on an owner-operator's
life as far below that of a miner in any employer-employee
setting. The fact that one is part owner of an enterprise
does not, in and of itself, give a court leave to allow such
an owner the right to expose himself to unnecessary harm
where Congress has otherwise directed.
Marshall v. Anchorage Plastering Company and OSAHRC, (9th Cir.),
No. 75-2747, February 2, 1978, 6 OSHC, held that a company that used equipment and materials from out of state and used telephone and mails was engaged
in business affecting interstate commerce and is subject to the Occupational
Safety and Health Act. The court stated that: "It has been clear since
Wickard v. Filburn, 317 U.S. 111 (1942), that an activity which in itself has
a minimal effect on commerce is still subject to regulation if similar
activities, taken as a whole, might have an impact."
Godwin v. Occupational Safety and Health Review Commission, 540 F.2d
1013 (9th Cir •. 1976), involved a company which was clearing land for purposes

1578

of growing grapes. During the administrative adjudication of that case, the
Review Commission held that the company was not engaging in a business
affecting commerce because at the time of the citation and hearing it had not
completed its plans to plant a vineyard and hence had not engaged in a business affecting commmerce. The court reversed the Commission, and, in doing
so, cited the Congressional statement of findings and declaration of purpose
and policy found in the Occupational Safety and Health Act of 1979, 29 U.S.C.
§ 651, the legislative history of the Act citing loss of life and injuries
resulting from job-related hazards, and other circuit court decisions interpreting the phrase "affecting commerce" which appears in the Act, 29 U.S.C.
§ 652(5).
The court concluded that Congress intended the coverage of the Act
to be as broad as the commerce clause, and cited Fry v. United States,
421 U.S. 542 (1975), which held "even activity that is purely intrastate in
character may be regulated by Congress, where the activity, combined with like
conduct by others similarly situated, affects commerce."
Perez v. United States, 402 U.S. 146 (1971), held that Congress may make
a finding as to what activity affects interstate commerce, and by making
such a finding it obviates the necessity for demonstrating jurisdiction under
the commerce clause in individual cases. Thus, it is not necessary to prove
that any particular intrastate activity affects commerce, if the activity is
included in a class of activities which Congress intended to regulate because
it finds that the class affects commerce.
I am aware of only one case where a court held that a mine did not
affect commerce within the meaning of the ~t.. Morton v. Bloom, 373 F. Supp.
797 (W.D. Pa. 1973), involved a one-man mine which had no employees. The
coal which the defendant produced was sold "exclusively within Pennsylvania."
Id. at 798. The court held that this operation was not the type which the
Congress intended to cover when it enacted the statute. More significantly,
the court found itself unable to conclude "that defendant's one-man mine
operation will substantially interfere with the regulation of interstate
commerce." Id. at 799. Even under the Wickard standard, the court stated
that the minewas "one of local character in which the implementation of
safety features required by the Act will not exert a substantial economic
effect on interstate connnerce." Id.
I have carefully reviewed the court's reasoning in Bloom, and I conclude
that it should not be followed in the instant matter. First, I do not believe
the court properly considered all of the possible means by which the Bloom
operation could have affected interstate commerce. At one point in the
opinion, the court noted that the "defendant does use some equipment in his
mine which was manufactured outside of Pennsylvania * * *" 373 F. Supp. at
798. The court found that this d'id not bring the defendant's mine within the
ambit of the commerce clause since the purchase of this equipment was "so
limited that its use would be de minimis." Id. This reasoning, in my view,
runs directly contrary to the Supreme Court's statement in Mabee v. White
Plains Publishing Company, 327 U.S. 178, 181 (1946), that the de minimis
maxim should not be applied to commerce clause cases in the absence of a

157B

Congressional intent to make a distinction on the basis of volume of business.
Arid, as the -court _noted in Bosack, the Mine Safety Act does-not require that
the effect on interstate commerce be substantial. See 463 F. Supp. at 801.
Secondly, and perhaps more importantly, the court in_ Bloom did not consider the effects which many one-man coal mining operations, taken together,
might have on interstate commerce. Going back once again to the Wickard
case, the Supreme Court held that even if the wheat in question was never
marketed, "it supplies a need of the man who grew it which would otherwise be
reflected by purchases in the open market. Home-grown wheat in this sense
competes With wheat in commerce." 317 U.S. at 128. Similarly, in the
instant case, the- coal which the respondent supplies to its customer supplies
the needs of that customer and ·would otherwise be reflected by purchases in
the open market. I believe that such a practice in the open market would
have enough of an effect, direct or indirect, on commerce to bring respondent
within the purview of the commerce clause, and thus the Act. My conclusion
in this regard is further supported by the following facts adduced in these
proceedings.
Judge Nolan~'s order of February 24, 1978, includes a finding that while
Log Cabin Coal Company sells the coal it purchases from the respondent to
the Logansport Municipal Utility Company, Logansport, Indiana, "there is no
evidence concerning the area of customers serviced by the utility" (pg. 5,
Judge's Order). However, a deposition by the Mayor of Logansport, taken on
March 29, 1978, reflects that he also serves as the utility supervisor. He
states that 30 percent of the utility coal consumption is purchased from
Log Cabin, that the utility services the city of Logansport, as well as an
area approximately 5 miles surrounding the city in all directions, that the
utility has in excess of 12,000 meters encompassing residential, commercial,
and industrial customers, excluding approximately 200 street lights. Some
of its commercial customers include Alfa Industries, Electric Storage Battery,
Krause Milling, Wilson and Company, the General Tire and Rubber Company, and
Con-rail, formerly the Penn Central Railroad Company. The Mayor also indicated that there are approximately 18 manufacturing plants in the city,
employing 9,000 to 10,000 people.
The Mayor's deposition reflects that the public utility operates under
the rules of the Federal Power Commission, that it is a publicly owned electrical gener-ating utility, and that it also purchases _some of- i.ts coal from
Island Creek Coal Company, located in the State of Kentucky. He also indicated that the utility has purchased coal from out of state brokers during
a strike for use by the utility, as well as from the State of Indiana Public
Service Commission. He had no knowledge of the respondent's coal mining
opera ti on s.
Also included in the record are the March 29, 1978 depositions of
Donald D. Kampenga, general manager of Essex Controls Division ElectraMechanical Group, a subsidiary of United Technologies, a Connecticut
Corporation; Edward E. Boyles, Customer Services Supervisor, General Telephone
Company of Indiana; and Harry A. Bahnaman, General Manager, Wilson Produce
Company, all located in Logansport, Indiana.

Mr. Kampenga testified as to the scope and ~xtent of Essex Control's
operations in Logansport, the use ·of power in the plant, and t~e fact that
its products are sold to the Carrier, Whirlpool, Frigidaire, General
Electric, and.Westinghouse Corporations, both within and outside the State
of Indiana.
Mr. Broyles testified that the General Telephone Company of Logansport
supplies local and long-distance service for some 18,000 telephones in its
service area, including 2,000 business phones, and that the company purchases
power from the Logansport Municipal Utility to change its batteries, which in
turn operates the telephone equipment.
Mr. Bahnaman testified that Wilson Product of Logansport is a hog
slaughtering and food processing plant which is headquartered in Oklahoma
City, Okalhoma. Ninety percent of the products produced in the Logansport
plant are shipped outside the State of Indiana by truck and railroad. Power
for the operation of the Logansport plant is purchased from the Logansport
Ut:Uity Company and it is used to operate most of the plant equipment and
machinery. The plant is one of the biggest consumers of electricity in
Logansport, and it sells products in Iowa, Oklahoma, Minnesota, Kentucky,
and Massachusetts. The plant is regulated by the U.S. Department of
Agriculture, OSHA, and several State agencies.
The record also contains the March 28, 1978, depositions of John and
Robert Haviland, and they include the following testimony.
1.

The surface coal mine which is operated and mined by the
respondents consists of approximately 20 acres, five of
which have already been mined.

2.

The equipment used by the respondents in the mining
operation includes a dump truck, tractor, front-end
loader, backhoe, and a drag line, all of which is
operated by use of diesel full or. gasoline.

3.

The coal which is mined is loaded onto trucks by means
of a loader for sale to the Log Cabin Coal Company.

4.

The sales of coal to Log Cabin are consumated by
telephone calls initiated by the respondents as well as
by Log Cabin, or in person by Log Cabin, and payment is
made by· Log Cabin by chech which is usually delivered by
Log Cabin to the respondents.

5.

While no coal has been mined since January 1978, production was curtailed because of a strike and the presence
of UMWA pickets at respondents mine. However, respondent
intends to continue mining coal and to cQ.ntinue selling
its coal to Log Cabin Coal Company.

1

t
..A..\

8 J.•

In addition to the aforesaid depositions of John and Robert Haviland,
the record also contains a transcript of their testimony of January 4, 1978,
before District Court Judge Noland, as well as the testimony of Cleve
Rentschler. That testimony includes the fact that respondents operate a
surface strip mine consisting of some 20 acres of coal, that during the
calendar year 1977, two acres were mined, yielding 9,00P tons, ·that the
expenses and profits are shared by the three respondents who operate the
mine, that for the preceding years of o~erations, the respondents received
eight dollars a ton for the coal which· they mined, that they employ no other
employees, and that the coal is sold to the Log Cabin Coal Company located
in Brazil, Indiana.
In its Memorandum of Points and Authorities in support of its motion
for summary judgment filed with the Court, the Secretary makes the following
arguments:
1.

A search warrant is not required for an inspection conducted by MSHA pursuant to the Act.

2.

The operation of a mi.ne is a "Class of Activity" found
by Congress to affect interstate commerce. In support
of this argument, the Secretary traces the legislative
history of the laws regulating the coal mining industry,
including an assertion that Congress has rejected
coverage of the law based on the number of persons
working in a mine, and specificafiy· found that mining
affects interstate commerce.

3.

The record in this proceeding clearly establishes that
the coal mined by the respondent affects interstrate
commerce in that it is consumed at Logansport, Indiana
where it is converted to electrical power to. supply part
of the needs of the local community of Logansport through
a local utility company, as well as the needs of several
manufacturers whose products directly enter interstate
commerce. The Secretary also notes-that during a 1978
strike when respondents were not mining coal, the
Logansport utility was forced to purchase coal from a
supplier in the state of Kentucky at higher prices and
that this establishes an effect on interstate commerce.

The Federal Coal Mine Health and Safety Act of 1969, and the 1977
Amendments are remedial legislation and should be given a liberal interpretation. This was the intent of the Congress and it has been echoed in several
court decisions• See Legislative History, page 1025, "In adopting these provisions, the managers intend that the Act be construed liberally when improved
health or safety to miners will result." In a case involving the 1952 Coal
Mine Health and Safety Act, the predecessor of the 1969 Act, the Third Circuit
Court of Appeals stated as follows in St. Mary's Sewer Pipe Co. v. Director of
U.S. Bureau of Mines, 262 F.2d 378, 381 (3d Cir. 1959):

1 t)1'::"8'), __

The statute we are called upon to interpret is the
out-growth of a long history of major disasters in coal mines.
The death toll from mine disasters became so appalling and
voluntary compliance with the safety standards set by the
Bureau of Mines so haphazard that in 1952 Congress determined
to make compliance with the safety standards mandatory. It
is so obvious as to be beyond dispute that in construing
safety or remedial legislation narrow or limited construction
is to be eschewed. Rather, in this field liberal construction
in light of the prime purpose of the legislation is to be
employed.
The .st. Mary's Sewer case was cited by the Fourth Circuit in Reliable
Coal Corporation v. Morton Et Al., 478 F.2d 257, 262 (4th Cir. 1973), a
case involving the 1969 Act. The court quoted the above excerpt and said
"We find this observation equally appropriate to the case at hand." Other
courts have echoed this liberal construction and application of the. See
Freeman Coal Mining Company v •. Interior Board of Mine Operations Appea~
504 F.2d 741 (7th Cir. 1974); Old Ben Coal Corporation v. IBMA, supra;
Franklin Phillips v. Interior Board of Mine Operations Appeals, 500 F.2d
772 (D.C. Cir. 1974).
The legislative history of the 1977 Act clearly contemplates that
jurisdictional doubts be resolved in favor of Mine Act jurisdiction. The
report of the Senate Committee on Human Resources states:
The Committee notes that there may be a need to resolve
jurisdictional conflicts, but it is the Committee's intention
that what is considered to be a mine and to be regulated under
this Act be given the broadest possible interpretation, and it
is the intent of this Committee that doubts be resolved in
favor of inclusion of a facility within the coverage of the
Act.
S. Rep. 95-181, 95th Cong., 1st Sess. (May 16, 197) at 14; Legislative History
of the Mine Safety and Health Act, Committee Print at 602 (hereinafter cited
as Leg. Hist.).
The Federal Mine Safety and Health Act of 1977 is intended to assure
safe and healthful working conditions for the American miner, and Congress
clearly stated its findings and purposes in this regard in the 1969 Act as
well as in the 1977 Act which extended the jurisdiction of the Coal Act to
all mining activities. The Congressional findings and purposes are set forth
as follows in section 2 of the 1969 Act, and is equally applicable to all
mines:
(a) the first priority and concern of all in the coal
mining industry must be the health and safety of i.ts most
previous resource--the miner;

158a

(b) deaths and serious injuries from unsafe and
unhealthful conditions and practices in the coal mines cause
grief and suffering to the miners and to their families;
(c) there is an urgent need to provide more effective
means and measures for improving the working conditions and
practices in the Nation's coal mines in order to prevent
death and serious physical harm, and in ~rder to prevent
occupational diseases o~iginating in such mines;
·(d) the existence of unsafe and unhealthful conditions
and practices in the Nation's coal mines is a serious
impediment to the future growth of the coal mining industry
and cannot be tolerated;
(e) the operators of such mines with the assistance
of the miners have the primary responsibility to prevent the
existence of such conditions and practices in such mines;
(f) the disruption of production and the loss of income
to operators and miners as a result of coal mine accidents or
occupationally caused diseases unduly impedes and burdens
commerce. [Emphasis added.]
Section 3(b) defines "commerce" in part as follows: "Trade, traffic,
commerce, transportation, or communications, among the several states, or
between a place in a state and any place outside thereof, * * *•" (Emphasis
in original.)
Section 3(g) defines a miner as follows:
working in a coal or other mine."

'"Miner' means any individual

Section 4 stated as follows with regard to what mines are subject to the
Act. "Each coal or other mine, the products of which enter commerce, or the
operations or products of which affect commerce, and each operator of sue~
mine, and every miner in such mine shall be subject to the provisions of this
Act." (Emphasis in original.)
The matter of determining if a mining operation affects commerce takes
into consideration many variables, whereas determining if a mirie product
enters commerce is resolved by the single proof of its entry. In analyzing
section 4 of the Act, I conclude that Congress intended the "enter commerce"
and "affect commerce" clauses to be alternatives either of which subjects
a mine to the provisions of the Act. However, I conclude that the.intent of
the 1977 statute, as well as the preced.ing 1969 legislation, as manifested
in the legislative history, is to be broadly construed to apply to all of
the nation's mines as a class of activity which affects commerce, and the
cases cited above support that conclusion. Accordingly, I accept petitioner's
"class of activities" jurisdictional arguments and conclude the respondent's

mining operation is covered by the ·1977 Act, and its arguments to the
contrary are rejected. I also find that respondent's sales of coal to Log
Cabin Coal Company affect connnerce within -the,meaning of the Act, and this
also serves to bring the respondent within its reach.
·In a recent case decided in the Ninth Circuit, Marshall v. Wait, 628 F~2d
1255 (1980), the Court of Appeals held that a small family-owned rock quarry
had not impliedly consented to a warrantless·inspection of its premises by
the Secretary pursuant to the Act. The court found that while a rock quarry
falls within the definition of a "mine" as that term is defined by the 1977
Act, the Secretary .had not established to the Court's satisfaction ·that the
respondent's excavation of decorative rock was a pervasively regulated
activity so as to bring it within the warrantless search exceptions noted by
the Supreme Court in United States v. Biswell, 406 U.S. 311 (1972), and
Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970). The Court
recognized that an industry's history of regulation is a releyant factor in
determing the constitutionality of subjecting its operators to nonconsensual
warrantless searches, cited the coal mining industry as an example of such an
industry, and relying on Marshall v. Sink, 614 F.2d 37 (4th Cir. 1980),
impliedly observed that small, owner-operated mines may be subjected to
warrantless searches, 628 F.2d 1255.
In several other court decisions which I find relevant to the instant
proceedings, the courts have recognized the right of the Secretary to inspect
small, family-owned mining operations, and a discussion of these decisions
follows below.
On September 15, 1978, in the case of Ray Marshall v. Jesse Kintzel,
Et Al., Civil Action No. 78-13 (E.D. Pa., filed September 14, 1978), the
Kintzel brothers, doing business as the Kintzel Coal Company, were permanently
enjoined in part as follows:
(1) From denying the Secretary of. Labor or his authorized
representative entry to, upon or through the Kintzel Coal
Company, Lykens No. 6 Mine.
(2) From refusing to permit the inspection of the
Kintzel Coal Company, Lykens No. 6 Mine.
In Marshall v. Thomas Wolfe, d/b/a Wolfe Coal Company, Civ. No. 79-1850
(E.D. Pa.) (July 20, 1979), a Federal court enjoined the company from
denying entry to MSHA inspectors for the purpose of conducting a mine
inspection. The judge rejected arguments advanced by the mine operator that
the Act does -not apply to mines without miner-employees. See also Marshall
v. Donofrio, 605 F.2d ·1196 (3rd Cir. 1979), aff'g., 465.F. Supp. 838
(E.D. PA. 1978), cert. denied No. 79-848 (February 19, 1980), where the same
district court judge issued an identical ruling and decision as in Wolfe
Coal Company.
~
Kintzel and Wolfe are examples of small, family-owned mining companies,
similar to the respondent's where the courts have found them subject to the

Act, and enjoined the owners from denying entry to MSHA's inspectors for the
purpose of conducting inspections pursuant to the Act.
Fact of Violations
In Docket No. VINC 79-102-P, the respondent is charged with a violation
of the provisions of mandatory standard 30 C.F.R. § 71.lOl(a) for failure to
submit initial respirable dust samples to determine the amount of respirable
dust to which mine employees are expos~a. The initial citation, No. 256040,
was issued on August 14, 1978 (Exh. P-9), and after expiration of the initial
abatement time and non-compliance by the respondent, the inspector issued
a withdrawal order pursuant to section 104(b) of the Act on September 15,
1978 (Exh. P-9), requiring the removal of all personnel from the mine.
In Docket No. VINC 79-93-P, the respondent is charged with a violation
of the provisions of mandatory standard 30 C.F.R. § 71.302(a), for failure
to conduct an initial noise survey concerning the noise levels to which
miners may be exposed during the course of their work shift, and for failure
to report the results of the survey to MSHA as required by the cited
standard. The initial citation, No. 1 B.E.P., was issued on October 12,
1977 (Exh. P-3), but was subsequently modified on August 14, 1978, to correct
an erroneous citation to the regulatory standard initially cited by the
inspector and to clarify the fact that the citation was being issued under
the 1977 Act (Exh. P-6). Subsequently, on August 14, 1978, the inspector
issued a withdrawal order, No. 256242, after finding that the respondent had
failed to abate the condition cited, and the order notes that the respondent
had ordered the inspector off its mine property (Exh. P-7). I t should be
noted that since the issuance of the citations in question in these cases,
and the subsequent court suit filed by the Secretary, MSHA has made no
further attempts to inspect the mine site in question, and as far ·as I know
the respondents are still mining coal. contary to the requirements of the
withdrawal orders which have been issued by MSHA.
Petitioner has presented evidence and testimony in support of the citations in question in these proceedings, and this is reflected in the attached
January 22, 1981, order which I issued. However, while the respondent has
had two full opportunities to present evidence ancJ testimony in its defense,
it has declined to do so on the ground that it does not recognize my authority
and jurisdiction to proceed with the administrative adjudication of these
dockets. Aside from its jurisdictional arguments, respondent maintains that
since the Secretary has seen fit to bring an injunction action in the United
States District Court, the Secretary is bound by his action and that only the
District Court has jurisdiction to conduct a trial on the merits of these
cases. Respondent has vehemently objected to what it believes is "forum
shopping" on the.part of the petitioner in these cases. In support of this
argument, respondent cites the case of.Bituminous Coal Operators' Association,
Inc., v. Marshall, 83 F.R.D. 350 (D.DC. 1979). After review of that decision,
I conclude that it does not support the position taken by the respondent. In
the BCOA case, District Court Judge Gessel dismissed the suit and noted
that under the Act, Congress did not intend that the District Courts review
the merits of orders and citations issued against mine operators, and he

158b

specifically stated that when an operator is adversely affected by any
enforcement action taken by the Secretary, the proper procedure to follow is
to allow the matter to run its course through the administrative procedures
established for review through this Commission and then to an appropriate
court of appeals.
While it is true that Judge Gessel noted an exception when the Secretary
institutes an injunctive action against an operator pursuant to section 108
of the Act, as has been done in these cases, I take note of the fact that the
District Court here has issued no further orders or dispositions staying or
otherwise inhibiting the Secretary from proceeding with its case before the
Commission. As a·matter of fact, even though counsel for the respondent
stated in a motion of April 30, 1979, for a continuance and change of hearing
site that the court would issue a stay "at any time," no such order has been
forthcoming and the matter has been pending with the court since 1978. Under
the circumstances, I find nothing in section 108 which prohibits me from
bringing these cases to finality through the issuance of my decisions in
matters which are before me for adjudication. In my view, hearings before
this Commission provide a more than adequate mechanism for adjudicating all
of the issues which are before the District Court, including the Constitutional and jurisdictional questions raised by the respondents, Secretary of
Labor v. Kenny Richardson, BARB 78-600-P, decided by the Commission on
January 19, 1981.
The record adduced in this case reflects that the Secretary's court
action was initially filed in the District ,Co~rt on December 20, 1977, and as
indicated above, while the court denied the-·Secretary' s request for an
injunction, it also denied the respondent's motion to dismiss the suit. The
matter has been pending since that time, and aside from the filing of briefs,
the court has made no further disposition of the matter other than to transfer
it to another judge, and the Secretary has taken no further action to advance
the case on the Court's docket or to otherwise initiate any action seeking to
bring that suit to finality.
I take note of the fact that prior to the filing of the court action by
the Secretary, MSHA had on previous occasions inspected the respondent's
mining operations in 1976 or 1977, and Inspector Bailey issued several citations. Respondent's prior history of violations includes citations which
were issued on April 11, October 12, and November 28, 1977. The citations
which are in issue in the instant proceedings have ripened into withdrawal
orders and I have no information tqat the respondent has ever challenged
those orders apart from its defense in the court suit and in its answers to
the petitions for assessment of civil penalties filed here.
In view of the foregoing, I conclude and find that the petitioner has
established the fact of violations as to both citations which were issued in
these proceedings and under the circumstances, both citations issued in
these dockets are AFFIRMED.

158?

Size of Business and Effect. of Civil. Penalties on Respondent's Ability to
Continue in Business.
In its answer of January 22, 1979, to the proposal for assessment of
civil penalties, respondent asserted that it had and has no employees and
was self-employed. However, the record establishes that respondent's mining
operation i_s carried on by a partnership consisting of the two Haviland
brothers, and a brother-in-law, Cleve Rentschler; Respondent's counsel
explained the scope and extent of respondent's mining operation for the
years 1977 through 1979, an~ the parties agree that respondent is a small
operator (Tr. 215-221; pgs. 3-4 of my previous order of January 22, 1981).
Respondent has offered nothing to suggest that the civil penalties
assessed for the two citations· in question will adversely affect the respondent's ahility to continue in business. Accordingly, absent any evidence to
the contrary, I find that they will not.
Good Faith Compliance
The record reflects that the citations .issued in these cases have not
been abated and ,that the withdrawal orders are still outstanding. Further,
it seems obvious to me that the respondent's failure to comply, as well as
its refusal to permit any MSHA inspectors on its property, stems from its
belief that it is not subject to the law. In these circl,llllstances, I conclude
that the question of good faith compliance is inapplicable in these cases.
History of Prior Violations
Petitioner has submitted a computer print-out which indicates that for
the period October 13, 1975 to August 14, 1978, respondent has been served
with eight citations for various violations of mandatory safety standards.
While the print-out reflects total assessments amounting to $757, it also
indicates that the respondent has made no payments for any of the assessed
violations. Inspector Bailey confirmed that the ~espondent defaulted on
several of the previous citations and that ·petitioner referred them to the
Department of Justice for collection action (Tr. 155-156).,
Two of the eight citations listed on the print-out are those which are
in issue in these proceedings. The remaining six, which are unpaid, do not
in my view, warrant any additional increases in the penalties which have been
assessed against the respondent for the two citations which I have affirmed.
Gravity
Since the respondent has failed to submit any dust samples or to make
any noise survey, I have no way of knowing whether respondent is in or out
of compliance with those standards. Consequently, I am unable to determine
the specific seriousness or gravity of the citations which are the subject
of'these proceedings.

Negligence
Inspector Bailey testified that he.had, previously conducted inspections
at respondent's surface mining operation and had issued other citations for
violations wh:t,ch he found. These citations were issued prior to' the fili:ng
of the injunction action by the Secretary. Accordingly, I conclude that the
respondent was not oblivious to the fact that it was required to comply with
the provisions of the Act as well as with the mandatory safety and health
standards promulgated pursuant to the law. In the circumstances I conclude
and find that the respondent failed to exercise reasonable care to prevent
the condition cited in these cases, and that its failure in this r~gard
amounts to ordina~y negligence.
Penalty Assessment and Order
On the basis of the foregoing findings and conclusions, and taking into
account the requirements of section llO(i) of the Act, I conclude and find
that the following civil penalties are reasonable and appropriate:
Docket No. VINC 79-102-P
Citation No.

Date

30 CFR Se~tion

Assessment

256040

08/14/78

71.lOl(a)

$100

Citation No.

Date

30 CFR Section

Assessment

1 B.E.P.

10/12/77

71.302(a)

$125

Docket No. VINC 79-93-P

Respondent IS ORDERED to pay the civil penalties assessed, in the
amounts indicated above, within thirty (30) days of the date of these
decis~ons, and upon receipt of payment by the petitioner, these cases are
dismissed.

Attachment

h.-Kot!a~
Administrative Law Judge

Distribution:
Rafael ~lvarez, Esq., Office of the Solicitor, U.S. Department of Labor~
230 s. Dearborn St., Chicago, IL 60604 (Certified Mail)
George A. Brattain, Esq., Marshall, Batman, Dc;,y, Swango & Brattain,
710 Ohio St., Box 1444, Terre Haute, IN 47808 (Certified Mail)

FEDERAL MINi·~AFETY AND HEALTH REVIEW &.IAMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN 2 2 1991

Civil Penalty Proceedings

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

Docket No. VINC 79-93-P
A.O. No. ;_12-01433-03002

v.
JOHN L. HAVILAND, ROBERT P.
HAVILAND, and CLEVE RENTSCHLER,
d/b/a HAVILAND BROTHERS COAL
COMPANY,
Respondent

Docket No. VINC 79-102-P
A.O. No. 12-01433-03003
Haviland Strip }line

ORDER TO SHOW CAUSE
Appearances:

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department
of Labor, Chicago, Illinois, for the petitioner;
George A. Brattain, Esq., Terre Haute; Indiana, for the
respondent.

Before:

Judq;e Koutras
Statement of the Proceedings

These proceedings concern proposals for assessment of civil penalties
filed by the petitioner against the respondent pursuant to section llO(a) of
the Federal Mine Safety and Health Act of 1977, 30 U. S.C. § 820(a), charging
the respondent with two alleged violations of certain mandatory safety and
health standards found in Part 71, Title 30, Code of Federal Regulations.
Respondent filed timely answers and contests denying the alleged violations,
and asserting that it is not subject to the Act because the products of its
mining activity do not enter or affect interstate commerce. A hearing was
convened in Terre Haute, Indiana, on July 1, 1980, and the parties appeared
and participated therein.
The July 1, 1980, Hearing
An informal prehearing conference was conducted prior to going on the
record, and the purpose of the conference was to afford counsel an opportunity to discuss the parameters of the hearing as well as to advise me as to the
status of the court action initiated by the Secretary to enjoin the respondent

1590

from refusing entry to MSHA inspectors attempting to inspect respondent's mining operation, Ray Marshall, Secretary of Labor, U.S. Department of Labor v.
John L. Haviland, et al., No. TH 77-178-C, District Court, S.D. Indiana,
Terre Haute Division.
Respondent's counsel asserted that while the initial injunction action
was brought by the Secretary of the Interior, the Secretary of Labor was
substituted as a party plaintiff when the 1977 Act became effective, and that
a motion to stay further enforcement by the Secretary is still pending before
the court (Tr. 36-37). Counsel asserted that the motion was filed November 3,
1978, that it is in effect a motion to restrain the Secretary from continuing
its enforcement activities at the subject mine (Tr. 38), and that the
Commission is not a party to that court action (Tr. 40).
Respondent's counsel objected to the commencement of the hearing on the
ground that the motion is still pending and that the question concerning the
Secretary's enforcement jurisdiction over the respondent's asserted "selfemployed" mining operation is still pending with the court. Counsel submitted
a copy of a Memorandum Order issued by the Honorable James E. Noland, District
Court Judge, on February 24, 1978, denying the Secretary's motion for a preliminary injunction to compel the respondent to permit MSHA inspections of its
mine. Judge Noland reserved any ruling on the respondent's motion to dismiss
the case, and as of the date of the hearing the matter was still pending
before the court.
Petitioner took the position that the respondent is engaged in the business of mining coal at its strip-mining operation and that the mine is subject to the Secretary's enforcement jurisdiction even though its operations
may only be intrastate. In support of its jurisdictional argument, petitioner
relies on sections 3(h) and 4 of the Act. Section 3(h) defines a "coal mine,"
and section 4 states that "[e]ach coal mine, the products of which affect
commerce, or the operations or products of which affect commerce, and each
operator of such mine, and every miner in such mine shall be subject to the
provisions of this Act." Citing the cases of Secretary of Labor v. Shingara,
418 F. Supp. 693 (E~D. Pa. 1976); Marshall v. Kilgore, 478 F. Supp. 4 (E.D.
Tenn. 1979); Wickard v. Filburn, 317 U.S. 111 (1942); and Fry v. United Sta~es,
421 U.S. 542 (1974), petitioner asserts that since the coal mining industry
is a pervasively regulated industry which affects commerce, it is clear that
respondent's mining operation is subject to the Act.
Petitioner also asserted that since the court has not rendered a final
decision as to the jurisdictional question, the Commission has jurisdiction
to proceed with the instant civil.penalty proceedings without prejudicing
respondent's rights in the pending court action (Tr. 30).
With regard to the Secretary's policy concerning any further attempts to
inspect respondent's mining operation subsequent to the October 18, 1977,
refusal of entry to its inspec~ors, petitioner's counsel stated that when
respondent Robert Haviland advised the inspectors not to return to the mine
site without a warrant, that request was honored, and MSHA inspectors have

1591

made no fur~her attempts to inspect the mine (Tr. 30-31). Although counsel
took the position that the Secretary has the authority to conduct warrantless
inspections, no further attempts have been made to conduct such inspections
at the mine in question (Tr. 32).
Petitioner's motion to amend its pleadings t9 name two additional parties
comprising respondent's coal company, a partnership, was granted (Tr. 8-11).
The record reflects that copies of petitioner's motion to amend were served
on respondent's counsel of record, and counsel's objection that the individual
partners ~ere not served was rejected (Tr. 11).
'

In view of the.fact that the Commission was not joined as a party to the
case pending before the court, and considering the fact that the Commission
is independent of the Department of Labor, it is my view that Judge Noland's
order does not enjoin or otherwise litnit the Commission's jurisdiction to continue with its administrative determination and adjudication of a case properly
before it. Accordingly, counsel's objections were rejected and the hearing
proceeded over his continuing objections (Tr. 45). Testimony and evidence in
support of the two alleged violations were presented by MSHA during the course
of the hearing, and respondent was given a full opportunity to cross-examine
the inspectors and to present any testimony or evidence in defense of the
citations. Aside from certain information concerning the size and scope of
its mining operation, and its jurisdictional arguments, respondent declined
to advance ~ny affirmative defense to the conditions ·or practices cited as
alleged violations of the standards in question and it called no witnesses
on its own behalf (Tr. 168-169).
By agreement and stipulation, the parties agreed that the findings of
fact made by Judge Noland in his February 24, 1978, Memora~dum Order may be
incorporated by reference and adopted by me in these proceedings (Tr. 212).
However, the parties were advised that I retain GOntinuing jurisdiction in
these proceedings before the Commission and that the parties are not foreclosed from eliciting additional information at any subsequent hearing concerning any additional factual, jurisdictional, or other matters (Tr. 213).
With respect to the statutory criteria found in section llO(i) of the Act
concerning the size of respondent's mining operation and the effect of any
civil penalties on this operation, respondent's counsel stated that he was
prepared to show that in the year 1977 respondent's annual coal production
was 9,654 tons, which sold for $8 a ton to the Log Cabin Coal Company, for
approximately $77,200 in gross revenues. Production in 1978 was 6,565 tons,
with gross sales to Log Cabin in the amount of $65,565. For the year 1979,
respondent's annual production was 6,132 tons, with gross sales to ·Log Cabin
in the amount of $73,534, and direct local sales amounting to $250. Counsel
stated that all of these revenues for the period 1977 to 1979, are gross
sales and do not reflect expenses for gas, oil, or the partnership profits
rea1ized from such sales. As ar. example, counsel stated that net revenues to
the partnership for the year 1979 amounted to $44,357, and he estimated that
this reflects one of the smallest coal mining operations in the State of
Indiana (Tr. 215-216).

Respondent's counsel described the mining operation carried out by the
partnership ~s a stripping operation consisting of a 10-acre tract of "gullyscr.ub" land which had originally been shaft mined before the year 1920. The
operation is conducted by the two Haviland brothers, one of whom is a farmer,
and Mr. Cleve Rentschler, their brother-in~law and a former elementary school
principal. They strip mine the Brazil Block of low sulphur coal, 'which is
some 20 to 30 feet deep, and. it is a source of extra income to the partner.:.
ship. All of the coal is sold to Log Cabin Coal Company, a shale and clay
mining operation located in Brazil, Indiana (Tr. 217~220). Petitioner's
counsel expressed agreement with the extent and scope· of the mining operation as described by respondent's counsel and agreed that it is a small
operation (Tr. 221).
There is no dispute that the respondent in this case operates a surface
coal mine within the State of Indiana, that it began its mining.operation in
1974, that with the exception of some 250 tons of coal sold directly by the
individual respondents locally in 1979, all of the .coal produced during the
years 1977 to 1979 was sold intrastate to Log Cabin Coal Company located in
Brazil, Indiana. It also seems clear that the mining operation is conducted
solely. by the three named partners, John L. and Robert P. Haviland and Cleve
Rentschler, doing business as th~ Haviland Brothers Coal Company (Tr. 88-90,
187-188).
Testimony and Evidence Adduced at the Hearing
Fact of Violations
Docket No. VINC 79-102-P
This case concerns a section 104(a) citation (No. 256040) issued by an
MSHA inspector on August 14, 1978, charging the respondent with a violation of
the provisions of mandatory standard 30 C.F.R. § 71.lOl(a). The citation
states as follows: nThe operator of the mine has not submitted the initial
respirable dust samples to determine the a~ount of respirable dust in the
atmosphere to which each employee is exposed."
MSHA inspector Clarenc~ Bailey confirmed that he issued Citation
No. 256040 on August' 14, 1978, chargi.ng a violation of section 71.lOl(a) for
failure by the respondent to submit initial respirable dust samples to determine the amount of atmospheric respirable dust to which mine employees are
exposed. MSHA's subdistrict office advis~d him that the mine had submitted
no samples, and as a result of this he issued the citation. Inspector Bailey
explained that dust samples are taken by means of individual dust pumps which
each sampled employee wears during a full 8-hour shift, the dust cassettes
are then sent to MSHA's Pittsburgh laboratory for analysis, and the operator
is notified of the results. If the samples show more than 1 milligram of
dust, another sample is required within 6 months, anq if the result is less
than 1 milligram, only annual samples are require<t- He indicated that a mine
operator may be temporarily certified to conduct dust surveys, and that dust
samplers are available for purchase by an operator. The purpose of sampling

is to determine whether there are any dust exposure problems at the mine, and
while 2 milligrams of dust is acceptable, anything above that is a violation
(Exh. P-8, Tr. 173-180).
Inspector Bailey identified Exhibit P-9 as a copy of a withdrawal order he
issued on September 15, 1978, after the expiration of the abatement period
fixed for the citation, and that order affected the entire mine because each
individual miner would have to be sampled. Inspector Bailey quoted from the
condition or practice from the face of.the order as follows (Tr. 183-184):
"The operator of the mine failed to submit the initial respirable dust sample
to determine the amount of respirable dust in the atmosphere, to which each
employee is exposed. After the issuance of Citation No. 254040, dated
August 14, 1978."
The order reflects that it was served by certified mail, and Mr. Bailey
confirmed that this was the case (Tr. 184). He identified Exhibit P-10 as his
"inspector's statement" concerning the order (Tr. 184). Mr. Bailey also indicated that samples were not required prior to 1978 because respondent was
informed by MSHA that he need not submit samples, but Mr. Bailey could not
specifically state why respondent was so informed (Tr. 197-198).
Docket No. VINC 79-93-P
This case concerns a section 104(b) notice issued under the 1969 Act,
No. 1 B.E.P., on October 12, 1977, charging the respondent with a violation
of 30 C.F.R. § 71.303(a), and it states as follows: "The operator has not
conducted the initial survey of the noise levels to which each miner in each
surface installation and at each surface worksite is exposed during his
normal working shift." The notice contains a notation that it was. "served
to Bob Haviland by certified mail because the inspectors were ordered off the
property being mined by the person served."
MSHA inspector Bryan E. Page testified as to his background and experience, and he confirmed that he attempted to conduct an inspection at the mine
on October 17, 1977, for the purpose of ascertaining whether the respondent
was in compliance with the noise level su'rvey requirements of section 71.302.
A letter dated July 22, 1977 (Exh. P-2) put respondent on notice as to the
requirements for such a survey, and respondent was. given until August 17,
1977, to comply. Robert Haviland told him that he could make no inspections
unless he had a warrant and he left the mine site. While there, he observed
a dragline and bulldozer doing some reclamation work, and he also observed a
coal shovel which was not in operation. He also observed three people there.
Subsequently, on October 18, 1977; he issued a citation charging the respondent with a violation of section 71.303(a) and served it by certified mail
(Exh. P-3). The citation charged the respondent with failure to submit an
initial noise reading for each employee, and while the abatement time was
fixed as November 30, 1977, the citation has never been abated (Tr. 67-77).
The initial citation cited the wrong standard, but it was subsequently
modified to cite fhe correct section, 77.302(a) (Tr. 79).

1594

Inspector Page identified Exhibit P-4 as an. inspection report "cover
sheet" prepared after each mine inspection. The report contains a mine
identification ntllllber which is issued after an operator submits his legal
identification papers upon commencing his mining operations. Mr. Page
stated that respondent is a strip-mine partnership mining the Brazil Block
of coal, and mined about 25 tons of coal daily on one shift from one pit,
and this information was based on previous reports filed with MSHA .(Tr. 8186). He also identified Exhibit P-5 as his "inspector's statement" which he
filled out when he issued the citation (Tr. 92), confirmed that he was at
the mine for 5 or 10 minutes, and that he went there on instructions of his
supervisor because the respondent had not submitted a noise survey (Tr. 96).
On ~ross-examination, Mr. Page confirmed that the persons he observed at
the mine were the two Haviland brothers, and that any noise levels required to
be surveyed were those levels to which they would be exposed. He confirmed
that he has heard noise levels of 90 decibels and that this level does not
offend his ears, although he has been exposed to noise levels requiring him
to wear ear muffs (Tr. 96-8).
In response to further questions, Mr. Page indicated that noise levels
are measured with a noise meter device held close to a persons's head, and it
registers the noise level by means of a dial (Tr. 99). The survey would be
taken on the three pieces of equipment he observed at the mine, namely, a
loading shovel, dragline, and a bulldozer. The survey results are recorded
on cards provided by MSHA, and the requirements and procedures for submitting
them are found in section 70 of the standards (Tr. 99-104).
MSHA inspector Clarence Bailey testified as to his training and experience, and confirmed that he modified the citation issued by Mr. Page to reflect
a failure to file an initial noise survey as required by section 71.302(a),
and he did so on August 14, 1978 (Exh. P-6, Tr. 108).
Mr. Bailey quoted the condition he cited on his modified citation as
follows (Tr. 110-112):
The operator of the mine has not conducted the survey
of the noise levels to which each miner in each surface
installation and at each surface worksite is exposed during
the normal work shift.
The subject violation No. 1 BIP dated 10-13-77 was
issued pursuant to section 104(b) of the Federal Coal Mine
Safety and Health Act of 1969, which was amended by the
Federal Mine Safety and Health Act of 1977. This violation is modified to section 104(a) of the Amendments Act
to reflect this change. 71.303(a) corrected to 71.302(a).
Inspector Bailey identified Exhibit P-7 as a section 104(b) order of
withdrawal he issued on August 14, 1978, for failure by the respondent to
abate the previous citation concerning the noise level survey. Since MSHA

159fl

had no evidence that the survey had ever been submitted or received, he had
~o alternative but to issue the order .which in effect ordered th.at all mining·
cease (Tr. 114). The order·was transmitted to Robert Haviland by certified
mail and the s·tamp date on the face of the order reflects that it was transmitted on. September 1, 1978 (Tr. 115-116). He could not confirm when it was
actually mailed or when the respondent received it (Tr. 117); and he
personally did not mail it (Tr. 118).
On cross-examination, Mr. Bailey stated that since all such orders are
mailed by certified mail, he believes that respondent received the order in
question. However, he confirmed that he personally did not see the order or
any cover letter actµally placed in the mail (Tr. 123).

In response to further questions, Mr. Bailey stated that he had no
personal knowledge that respondent continued mining subsequent to the issuance
of the withdrawal order of August 14, 1978, because he never returned to the
mine, nor did he attempt to go back to post an MSHA closure sign at the mine
(Tr. 130). However, prior to the issuance of the citation and order, he had
previously inspected the mine on a regular inspection during 1976 or 1977 and
issued four citations. However, when the respondent learned that it would be
subjected to civil penalties for all citations issued at the mine, it prohibited Inspector Page from coming back on the property (Tr •. 132).
Regardi.ng his prior inspections, Mr. Bailey stat~d that he believed he
issued citations for lack of a backup alarm, a seat belt, and a fire
extinguisher and that they were abated and the citations terminated (Tr. 151).
Respondent's counsel stated that respondent did not remit any civil penalties for these citations because they were issued against the Haviland Coal
Corporation, and they were subsequently defaulted and turned over to the
Justice Department for collection (Tr. 155-156).
In view of the pending court action taken by.the Secretary in this case,
I issued an order on September 22, 1980, directing• the parties to inform me of
the status of the case pending with Judge Noland. In addition, the parties
were also directe·d to advise me as to the necessity of any additional hearings
so as to bring these cases to finality. By letter and enclosure filed
October 23, 1980, petitioner's counsel filed a copy of a computer printout
detailing respondent's prior history of violations, a copy of Judge Noland's
Memorandum and Order of February 14, 1978, denying the. Secretary's motion for
a preliminary judgment, six depositions, and additional documents and information concerning the pending court litigation. That record includes the
following:
1. Depositions of John Lee Haviland and Robert Paris
Haviland, taken March 28, 1978.
2. Deposition of Martin Eugene Monahan, Mayor, City of
Logansport, Indiana, Chairman of the Board of Works and City
Council, and Supervisor of the Logansport Municipal Utility,
taken March 29, 1978.

3.. Deposition of Donald D. Kampenga, General Manager,
Essex Controls Division, Electrica-Mechanical Group, United
Technologies, Hartford, Connecticut, taken March 29, 1978.
4. Deposition of Edward E. Boyles, Customer Services
Supervisor, General Telephone Company of Indiana, Logansport,
Indiana, taken March 29, 1978.
5. Deposition of Harry A. Bahnaman, General Manager,
Wilson Produce Company, Logansport, Indiana, taken March 29,
1978.
6. Copy of the official transcript of the hearing held
before the Honorable James E. Noland, on January 4, 1978, with
respect to defendants' motion to dismiss the Secretary's suit.
The transcript contains the testimony of John Haviland,
Robert Haviland, and Cleve Rentschler.
7. Several motions, briefs, legal memoranda, and copies
of several court decisions dealing with the jurisdictional
claims raised by the respondents in this proceeding, all of
which have been filed in connection with the p~nding litigation befor~ Judge Noland.
At the close of the hearing in these cases, the parties were informed
that I intended to retain jurisdiction of this matter and that the cases
would be continued and the record left open pending further disposition by
Judge Noland. Since my order of September 22, 1980, no additional information
has been forthcoming from the parties concerning the disposition of the matter
before the court. Under the circumstances, and in order to insure timely
adjudication of the_cases now pending before me, the parties are advised that
I intend to go forward with the adjudication of these cases so as to finally
dispose of the cases. Accordingly, IT IS ORDERED that the parties SHOW CAUSE
within thirty (30) days as to why these cases should not now be scheduled for
an additional hearing to afford the parties a final opportunity to present any
additional factual or.legal evidence, testimony, or arguments as to the merits
of the cases so as to enable me to issue timely decisions disposing of the
dockets. The parties are also directed to advise me as to the feasibility of
stipulating or agreeing as to any matters which are not in disp~te, including
incorporating by ~eference any prior testimony or information generated by
the court suit as reflected in the record now pending before the court.

4~~/d...&e.
George A. Koutras
Administrative Law Judge

Distribution:
Rafael Alvarez,, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified Mail)
George A. Brattain, Esq., Marshall, Batman, Day, Swango & Brattain,
710 Ohio Street, P.O Box 1444, Terre Haute, IN 47~08 (Certified Mail)

1598

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

June 19, 1981
COMPLAINT OF DISCHARGE,
DISCRIMINATION, OR
INTERFERENCE

JOHNNY HOWARD,
Complainant

v.

Docket No. SE 80-24-DM

MARTIN-MARIETTA CORPORATION,
Respondent

MSHA Case No. MC 79-93
DECISION
Appearances:

Nathan Kaminski, Jr., Esq., Schneider &
O'Donnell, Georgetown, South Carolina, for
Complainant;
Elliott D. Light, Esq., Assistant General
Counsel, Martin-Marietta Corporation,
Bethesday, Maryland, for Respondent

Before:

Chief Administrative Law Judge Broderick
STATEMENT OF THE CASE

Complainant was discharged on July 31, 1979, from his
job as a front-end loader operator with Respondent. Complainant contends that his discharge was the result of his
refusal to work on an unsafe machine and his calling for a
Federal inspection of the machine.
Respondent contends that
Complainant was discharged for insubordination and leaving
the job site without permission.
A hearing was held, pursuant to notice, in Georqetown,
South Carolina, on March 26, 1981. Lawrence Snider, Mark
Martin, Evelyn Statz, Johnny Howard, and Ezra Lee Killian, a
Federal Mine Inspector, testified for Complainant. Jackie
.Wilson, Eddie Mazyck, Buck Ridgeway, David Foy, Plant Fore-.
man for Respondent, and David Brisley, Plant Manager, testified for Respondent. Both parties have submitted post
hearing briefs. Based on the record and the contentions of
the parties, I make the following decision.
FINDINGS OF FACT
1.
Martin-Marietta operates a rock quarry in Jamestown,
South Carolina which produces crushed stone for the construction industry. Johnny Howard was employed there from
June 1977 until July 31, 1979. At various times, he operated a front-end loader, a bulldozer, and a· drag line. From
Ap;ril 1979 to the date he was discharged, he operated a
front-end loader.

1599

2

2.
Soon after his employment began, Howard experienced
problems -with.the 980 front-end lo~der to which he was
assigned. He periodically notified management that the
brakes did not perform properly and management adjusted
them. The adjustments would last no more than a day before
the brakes became faulty again. This was a source of concern to Howard, for he believed the brakes were bey6nd
repair.
3.
The loader's faulty brakes created a safety hazard.
The physical exertion required to operate the loader tended
to aggravate Howard's back condition, which was known to
management. The procedure required to keep the loader
stable while loading trucks was so unwieldy that the operator risked dropping the load or running into the truck.
4.
Howard arrived at work at about 6:00 a.m. on July 24,
1979. He loaded 3 or 4 trucks and found that the loader had
no brakes. µe became angry, and toid his foreman, David
Foy, that the loader still was not working properly and he
was leaving to call the Occupational Safety and Health
Adm~nistration (OSHA).
Foy, aware of Howard's anger and
believing he might be quitting, acquiesced in Howard's
decision to leave.
5.
As he.was leaving the premises, Howard met Plant
Manager David Brisley, who asked him where he was going. He
told Brisley that he was dissatisfied with the brakes on the
loader and was leaving to call OSHA. Brisley urged him to
stay and help repair the loader but he refused.
6.
Howard called OSHA while off the premises. OSHA
ref erred his complaint to MSHA. He returned to work at
approximately 3:00 p.m. and waited for 45 minutes outside
Foy's -office, intending to talk to him. Foy did not emerge
and, because it was then quitting time, Howard left.
7.
The next day, Howard returned to work and began to
operate another front-end loader. He found its brakes too
tight and decided to postpone work until Foy arrived. When
Foy arrived, Howard asked him what he should do. Foy told
him that he thought he had quit or had been fired, so Howard
left the premises. He stopped at a nearby store. Brisley
found him there and asked him to return to Brisley's office.
Once there, Brisley told him that the company did not seem
to be. able to satisfy him, that he was making people mad at
'him, that he had few friends left at the company, and that
he ought to seek other employment. Brisley told him to take
the day off. Later, he advised him to return on July 31,
1979, when the company would decide what to do with him.

1800

3

-a.

On Juiy 25, 1979, MSHA inspector Ezra Lee Killian,
responding to Howard's reque.st for an inspection, issued a
ci.tationi70 the company for failin,9 to tag out Howard's
loader. 9.
Howard returned to the quarry on July 31, 1979, and was
told that he· was being t.erminated, according to Brisley,
"for leavi~q the job and insubordination with the plant
foreman." - 1

STATUTORY PROVISION
Section 105 (c) (1), 30 U.S.C.
follows:

§

815 (c) (1), reads as

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, representative
of miners or applicant for employment. in any
coal or other mine subject to this Act because
such miner, representative of miners or applicant for employment has filed or made a complaint under or related to this Act, including
a complaint notifying the operator or the
.operator's agent, or the representative of
the miners at the coal or other mine of an
alleged danger or safety or health violation
in a coal or other mine, or because such miner,
representative of miners or applicant for
employment ·is the subject of medical evalua
tions and potential transfer under a standard
published pursuant to section 101 or because
such miner, representative of miners or applicant for employment has instituted or caused
to be instituted any proceeding under or
related to this Act or has testified or is
about to testify in any such proceeding, or
because of the exercise by such.miner, representative. of miners or applicant for employ~nent on behalf of himself or others of any
statutory right afforded by this Act.

!/

The inspector did not state when he arrived at the
quarry or when he issued the citation and the citation was
not introduced in evidence.
2

1 Martin-Marietta seems not to- have reduced this termination to writing. If it did, it did not introduce it in
evidence.

lBO.l

4

ISSUE
Did Martin-Marietta violate § 105\c) when it discharged
Johnny Howard?
DISCUSSION
In Secretary of Labor, ex· rel. Pasula v. Consolidation
Coal Company, 2 FMSHRC 2786 (1980), the Commission announced
a four-part test for weighing the evidence in a discrimination case.
Id. at 2799-2800. To establish a prima facie
case, Howardrnust show that he engaged in protected activity
which played some role in the decision to fire him.
Howard's complaints about the brakes on his loader were
certainly protected by§ 105(c). The parties agree that the
brakes were often faulty.
The risk of harm this posed to
individuals operating the loader or working near it is
uncertain, but § 105(c) protects a miner when he notifies
his employer of an "alleged" danger.
It is equally clear that Howard's call to OSHA was protected by§ 105(c). The statutory right to request a safety
inspection is the centerpiece of the Mine Act.
30 u.s.c.
§ 813(g). Congress believed that "[i]f 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." S. Rep. No. 95-181, 95th Cong., 1st Sess., at 35,
reprinted in (1977) U.S. CODE CONG. & AD. NEWS at 3435.
It
is immaterial that Howard called OSHA rather than MSHA. A
layman cannot be expected to be familiar with the jurisdictional boundaries between the two agencies.
The more difficult issue is whether Howard's absence
from work on July 24, 1979, was protected by§ 105(c). His
absence actually resulted from two events: his refusal to
work on the loader and his departure from the premises to
call OSHA.
Howard's refusal to work on the loader was protected by
§ 105(c). A miner may refuse an assigned task if he honestly and reasonably believes that the task is hazardous to
him. Secretary of Labor, ex rel. Robinette v. United Castle
Coal Co., 3 FMSHRC 803 (1981) . . Howard's good faith and
reasonableness were corroborated by witnesses for MartinMarietta, who agreed that the brakes on the loader were
faulty at the time he complained and on many previous occasions. The risk of harm posed by the faulty brakes is
uncertain, but it is a fair inference that faulty brakes are
a safety hazard.
If it is reasonable to refuse to work on a
machine that gives one a headache, Pasula, supra, at 2793,
surely it is reasonable to refuse to work on a machine with
faulty brakes.

1602

5

Howard's departure from the premises on July 24, 1979,
presents a close question. An employee has the right to
remove himself from danger, but as a general rule, he is not
protected when he leaves the premises, making himself unavailable for alternate work and disrupting production.
However, Howard did more than simply leave the premises.
Before he left, he told his foreman and the plant supervisor
that he was leaving to call OSHA. He testified that he
believed company policy prohibited him from using a phone on
the premises for this purpose. Neither Foy nor Brisley disabused him of ·this belief. Had one of them informed Howard
that he could call OSHA without leaving work, I might view
his departure in a different light. But when a miner
pelieves that there exists a situation requiring an immediate safety and health inspection, I hold that he has an
absolute right to leave company property to call for an
~nspection if he believes he cannot do so on company property. Martin-Marietta made no issue of the fact that Howard
did not return until late in the afternoon. Therefore, I
find that his absence from work from approximately 7:00 a.m.
to 3:00 p.m. on July 24, 1979, was protected by§ 105(c).
It is clear that Howard's protected activity played
some role in the decision to discharge him. Brisley testified that "he was terminated for leaving the job and for
insubordination with the plant foreman." Tr. at 165.
"Leaving the job" obvi·ously refers to Howard's conduct on
July 24, 1979.
Martin-Marietta may affirmatively defend by showing
that Howard engaged in unprotected activity and that he
would have been fired for that activity alone. Pasula,
supra, at 2799-2800.
It has pointed to a number of factors
which supposedly contributed to its decision to discharge.
Brisley alleges that Howard had a drinking problem. However, he was disciplined for this months before the incident
Jin question and there was no testimony that the alleged
problem recurred. Howard once left work while he was on
med~cation for his back problem.
He testified that he had
his supervisor's permission, however, and none of MartinMarietta's witnesses contradicted him. He left work one
hight in October of 1978 because some truck drivers were
teasing him. Brisley, however, came to his house to ask him
~o r~tu7n ~ince he val~ed.him.as 7n employee.
He received
no discipline for the incident. -4
He left work on July 25,
1979, soon after arriving in the morning. But he was told

!/

"[I]f the unprotected activity did not originally
concern the employer enough to have resulted in the same
adverse action, we will not consider it." Pasula, supra, at
2800.

160B

6

by Foy that he had been fired or quit. Wh.en Brisley found
him at the store and asked him to return, he obeyed.
Th~ evidence simply does not support an inference that
Martin-Marietta relied on any of these considerations when
it fired Howard. Still, it did rely on "insubord~nation
with the plant foreman," meaning his behavior toward Foy on
the morning of ~?ly 24, 1979. Assuming that Howard was
insubordinate, I cannot conclude that he would have been
fired if his insubordination had not been coupled with his
departure from the premises to call OSHA.

In my judgment, Howard was fired for requesting a
safety inspection.
I seriously doubt that there was even a
"mixed motive" on the company's part, for while it has
chronicled a number of unprotected activities, none of them
played a role in Howard's discharge.
Brisley's testimony
shows that rather than invoking specific instances of misconduct, he told Howard that the company could not seem to
satisfy hi~, that he was making people mad at him, that he
was hurting feelings and losing friends.
These remarks,
coming so closely on the heels of Howard's announcement that
he would call OSHA, lead me to believe that what upset
Brisley was the fact that he had taken his complaint to
"outsiders." Still, Brisley had apparently not decided what
to do with Howard at the time he uttered these remarks.
Only after the company had been visited and cited ~or a
violation by an MSHA inspector did the company decide to
discharge him. Under these circumstances, Respondent has a
heavy burden to show that Howard would have been fired for
reasons unrelated to his call for an inspection.
It has
failed to carry this burden.
Therefore, I find that in discharging Howard, MartinMarietta violated§ 105(c). I will retain jurisdiction of
this case until the relief to be awarded is determined.
CONCLUSIONS OF LAW
1.
I have jurisdiction over the subject matter and
parties to this proceeding.
2.
Martin-Marietta Corporation violated § lOS(c) of
the Mine Act when it discharg,ed Johnny Howard on July 31,
1979.

~/

There is room for doubt on this matter. As commonly
understood, insubordination is more than simply a display of
anger and f.rustration directed at a machine and the company
in general.
It would seem to require some defiance or
displeasure directed at a specific superior.

7
ORDER
1.
Martin-Marietta shall offer reinstatement to
Howard i:r;i the position from which he was terminated, at the
rate of pay fixed for that position on the date of reinstatement.
2.
Martin-Marietta shall pay to Howard back pay
covering the period from July 31, 1979,-until the day he is
offered reinstatement.
Back pay equals the gross pay Howard
would have received minus interim, earnings. Martin-Marietta
shall be responsible for withholding from the award the
amounts required by state or Federal law and for making any
additional contributions which those laws require.
Interest
on the net back pay award shall be computed at, a rate of 6%
for that portion attributable to the period July 31, 1979,
through January 31, 1980, and 12% for the period thereafter.
3.
Martin Marietta shall pay a reasonable attorneys'
fee for services rendered by counsel for Howard.
4.
Upon being notified that the decision 'in this case
has become a final order of the Commission, the Secretary of
Labor shall institute proceedings to assess a civil penalty
against Martin-Marietta for the violation found herein.
5.
Martin-Marietta shall cease and desist from interfering with the rights of its employees covered by the Mine
Act to bring safety or health complaints to the attention of
state or Federal authorities.
It shall post in a conspicuous place a notice that i t has committed such a violation,
that it will refrain from doing so in the future and that it
e~courages its employees to exercise their rights under the
Federal Mine Safety and Health Act. The notice shall be
submitted to me for prior approval.
6.
Counsel for the parties shall advise me in writing
by July 10, 1981, whether they have agreed on ths amounts
due under paragraphs 2 and 3 of this order.
If so, they
shall subm,it those amounts to me together with the notice
described in paragraph 5.
Upon approval, I will issue an
order which finally disposes of the present proceedings.
If
they a~e unable to agree, further post-hearing orders will
be issued.

--1c:uvAM

,/W3n5 ~-

~ James A. Broderick

Chief Administrative Law Judge

Distribution: Next page.

lflOb

8

Distribution:

By certified mail.

Nathan Kiminski, Jr., Esq., Attorney for Johnny Howard, Complainant,
Schneider & O'Donnell, 601 Front Street, P.O. Box 662, Georgetown, SC 29440
Elliott D. Light, Esq., Assistant General Counsel, Attorney
for Martin-Marietta Corporation, 6001 Rockledge Drive, Bethesda,
MD 20034
Thomas A. Mascolino, Esq., Counsel for Trial Litigation, Office
of the Solicitor, Division of Mine Safety, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Special Investigation, MSHA, U.S. Department of Labor, 4015
Wilson Boulevard, Arlington, VA 22203

160(~

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

JU" 2 4 \g\\\

Civil Penalty Proceeding

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

Docket No. BARB 78-362-P
A/O No. Ol-01310-02005V
Gayossa Pit

v.

RON COAL COMPANY,
Respondent
DECISION
Appearances:

Murray Battles, Esq., Office of the Solicitor, U.S.
Department of Labor, Birmingham, Alabama, for
Petitioner;
Ronald Morgan, President, Ron Coal Company, Inc.,
Jasper, Alabama, for Respondent.

Before:

Judge Stewart

The above-captioned case is a civil penalty proceeding brought
pursuant to section 109 of the Federal Coal Mine Health and Safety Act
of 1969, 30 U.S.C. § 801 et ~· The hearing in this matter was held
on May 11, 1981, in Birmingham, Alabama.
The notice of violation at issue herein, Notice No. 5-A.B.C., dated
March 2, 1977, was issued pursuant to section 104(c)(l) of the Act. The
inspector cited 30 C.F.R. 77.1004(b) which reads as follows:
Overhanging highwalls and banks shall be taken down
and other unsafe ground conditions shall be corrected
promptly, or the area shall be posted.
is~ue

The inspector described the condition or practice which led him to
the notice of violation as follows:

Unsafe conditions such as trees leaning over with
roots pulled out of the ground were ~resent directly
over the drill operator. The area had not been posted to
keep persons from entering. The highwall was approximately 40 feet high. The tree was approximately 10 inches
in diameter at the bottom. The drill operator was drilling
a hole approximately 3 feet from the bottom of the wall.
Notice No. 5 A.B.C. was terminated after the timely abatement of this
condition.

160?

Inspector A. B. Cates conducted an inspection of Respondent's operation
at the Gayossa Pit on the morning of March. 2, 1977. Ron Morgan, President
of Ron's Coal Company, accompanied the inspector during his inspection.
Both men testified at the hearing held in this matter.
Respondent was mining in an area that had previously been mined by
another company. At the time of the inspection, -Clyde Morgan, the father
of Ron Morgan, was drilling a hole at the base of the highwall left by the
earlier mining operation. The highwall was estimated to be between 35 and
40 feet in height. The inspector observed a tree extending over the upper
edge of this highwall above the area in which Clyde Morgan was drilling.
The tree was approximately 40 feet high and 10 inches wide at its base. The
inspector estimated that the tree extended 10 feet beyond the edge of the
highwall. If the tree fell, it would have fallen into the pit.
It is found that the overhanging tree presented a hazardous condition
and that the failure to remove it or post the area was in violation of the
cited standard. Ron Morgan testified that the tree had "been there" for
a long time. The inspector, however, obseryed that one-half of the tree's
roots were expo~ed. Furthermore, it had been raining prior to the inspection.
As a consequence, the ground was "fairly wet" and the likelihood that the
tree would fall was enhanced. In view of the inspector's uncontested
testimony that an extensive portion of the root system of the tree was
visible, Mr. Morgan's assertion that the tree was "just as solid as all the
other trees in the forest" is rejected.
It is also found that Respondent demonstrated a moderate d~gree of
negligence in failing to remove the tree or post the area. The presence
of the tree was readily observable. Even though the tree had "been there"
for a long time, its condition was such that its stability should not have
been presumed.
It was probable that the tree would have f~llen into the pit sooner or
later. It was improbable, however, that it would have caused injury to any
of Respondent's employees. Respondent's employees took only one cut, and
spent only part of one day in the vicinity of the overhanging tree before
moving to "the other side of the hill." None of Respondent's employees
drilled in the area in question again.
The inspector testified that Clyde Morgan was drilling directly under
the overhanging tree. Ron Morgan testified that drilling occurred 40 feet
to one side of the tree. He qualified his testimony, however, by admitting
that the tree could have struck the operator if it was forced in his direction.
It is found that the drill operator was close enough to the tree while he was
drilling to be threatened with injury .if the tree had fallen. It is also
noted that there was nothing to prevent any of Respondent's employees from
entering the area immediately below the overhanging tree. If the tree had
fallen and struck someone standing underneath it, it is probable that the·
injury would have been serious.

Respondent demonstrated good faith in the abatement of the condition.
Cl:yde Morgan cut the tree down immediately. I t is noted that Respondent
need only have posted the area to have met the·requirements of the mandatory
standard.
At the time the inspection was conducted, Respondent had 2 prior paid
violations. The parties st~pulated that Respondent's prior history of violations was good,. It was a small operation with 5 employees and a daily output
of 50 to 75 tons of coal. Finally, it was the unrebutted testimony of
Ron Morgan that Respondent had cash flow problems and would have to borrow
money against its assets. to pay a penalty.
At the conclusion of the hearing, Petitioner moved that settlement in
the amount of $175 be approved for the violation at issue herein. The
violation had been assessed originally at $350. As grounds for the reduction
in penalty amount, counsel for Petitioner asserted that the negligence
demonstrated was "simple", that the violation was slightly s,erious, that
Respondent demonstrated good faith in the abatement of the condition and
that Respondent was a small operator.
The motion for approval of settlement was granted at the conclusion
of the hearing. The approval of the settlement is hereby AFFIRMED.
ORDER
IT IS ORDERED that Respondent pay the agreed upon sum of $175.00 within
30 days of the date of this decision,:if payment has not already been made.

Forrest E. Stewart
Administrative Law Judge
Distribution:
Murray A. Battles, Esq., Office of the Solicitor, U.S. Department of
Labor, 1929 Ninth Avenue South, Birmingham, AL 35205 (Certified Mail)
Mr. Ronald Morgan, President, Ron Coal Company, Inc., Box 2282,
Jasper, AL 35501 (Certified Mail)

lfiOH

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF ~EONARD
CUNNINGHAM, et al.,
Complainants

JUN 2 4 1981

Complaint of Discrimination
Docket No. WEVA 80-668-D
Alpine Mine

v.
SUBREG CORPORATION,
Respondent
DECISION AND ORDER
The parties move to dismiss the captioned discrimination complaint
on the ground that the matter has been settled by an agreement between
the complainants and the operator dated June 4, 1981.
Based on an independent evaluation and de novo review of the
circumstances, I find the settlement proposed is in accord with the
purposes and policy of the Act.
Accordingly, it is ORDERED that settlement be, and hereby is
APPROVED. I t is FURTHER ORDERED that the operator pay the amount of
the back pay and employment benefits stipulated to and'a penalty of $100
on or before Wednesday, July 15, 1981
d that subject to payment the
captioned matter be DISMISSED.

Judge
Distribution:
Richard A. Steyer, Esq., Loomis, Owen, Fellman & Howe, 2020 K St., NW,
Washington, DC·20006 (Certified Mail).
Joyce Hamrla, Esq., UMWA, 900 15th St., NW, Washington, DC 20005
(Certified Mail)
David E. Street, Esq., U.S. Department of Labor, Office of the Solicitor,
3535 Market St., Philadelphia, PA 19104 (Certified Mail)
Leonard Cunningham, Route 1, Box 161 A, Lost Creek, WV 26385 (Certified
Mail)

1610

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

JUN 2 4 \98l

Civil Penalty Proceeding

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

Docket No. YORK 80-55-M
A.O. No. 27-00135-05002
Ducharme Pit

v.
DUCHARME SAND & GRAVEL,
Respondent
DECISION
Appearances:

Constance B. Franklin, Esq., U.S. Department of Labor,
Boston, Massachusetts, for the petitioner;
Clifford R. Kinghorn, Jr., Esq., Nashua, New Hampshire,
for the respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of civil penalties
filed by the petitioner against the respondent pursuant to section llO(a~
of the Federal Mine Safety and Health Act of 1977, seeking civil penalty.
assessments for 13 alleged violations of certain mandatory safety standards
set forth in Part 56, Title 30, Code of Federal Regulations. Respondent
filed an answer to the proposal, and pursuant to notice, a hearing was
convened on June 2, 1981, in Lowell, Massachusetts, and the parties appeare~.
and participated therein.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164,
30 U.S .. C. § 801 et seq.
~O

u.s.c. § 820(i).

2.

Section llO(i) of the 1977 Ac,t,

3.

Commission Rules, 20 C.F.R. § 2700.1 et seq.
Issues

The principal issues presented in this proceeding are (1) whether
respondent has violated the provisions of th~ Act and implementing regulations

1611

as alleged in the proposal for assessment of civil penalty filed, and, if
so,· (2) the appropriate civil penalty that should be assessed against the
respondent for the-allged violation based upon the criteria set forth
in section llO(i) of the Act. Additional issues raised by the parties
are identified and disposed of where appropriate in the course of this
decision~

In determining the amount of a civil penalty ·assessment, section llO(i)
of the Act requi~es consideration of the following criteria: (1) the
operator's history of previous violations, (2) the appropriateness of such
penalty tQ the siz_e of the business of the operator, (3) whether the
operator was negligent, (4) the effect on the operator's ability to continue
in business, (5) the gravity of_ the violation, and (6) the demonstrated
good faith of the operator in attempting to achieve rapid compliance after
notification of the violation.
Stipulations
The parties stipulated to the following:
1. Respondent is subject to the provisions of the Act and to the
enforcement jurisdiction of the petitioner.

2. The citations in question were issued by an authorized representative
of the Secretary of Labor and duly served on the respondent.
3. The respondent is a small family-owned sand and gravel operator
employing approximately seven full-time employees.
Discussion
The respondent in this case is charged with 13 alleged violations
of certain mandatory safety standards found in Part 56, Title 30,
Code of Federal Regulations. The citations and conditions or practices
cited are as follows:
1.

208669, 9/13/79, 30 CFR 56.9-87
The Caterpillar 980 B S/N 89P 2580 front-end loader was
not provided with an automatic reverse signa_l. The. loader
was observed operating in close proximity to two welders
that were prefabricating steel on ground level.

2.

208670, 9/13/79, 30 CFR 56.9-2
The Caterpillar 480-B 89P 2580 front-end loader was not
provided with a working secondary braking system able to
hold the equipment on the primary crusher hopper ramp.

1 {) l ::·

3.

208671, 9/13/79, 30 CFR 56.12-32
Inspection electrical box covers were not replaced on the
following areas after repairs had b'een made. Primary
feeder vibrator, primary crusher motor, primary conduit ·elbow
at crusher motor, and the secondary crusher.

4.

208672, 9/13/79, 30 CFR 56.14-1
The primary cr4sher counterweight was not provided with
a guard. The work platform led an employee right up to the
rotating coun.terweight.

5.

208673, 9/13/79, 30 CFR 56.14-1
The primary crusher flywheel and V-belt drive were not provided with a guard. The crusher work platform was so constructed
that an employee could make physical contact.

6.

208674, 9/13/79, 30 CFR 56.11-1
Safe access was not provided to service ~he following conveyor
headpuileys. The mine operator will have to survey the entire
plant for other areas.
Citation 208674 was subsequently modified by the inspector on
9/17/79, as follows:
The citation should read as follows. Safe access was
not provided to service the following conveyor headpulleys. No. 1 conveyor, return conveyor, radial
stacker feeder, and the radial stacker. The
mine operator will have to survey the entire plant
for other effected [sic] areas.

7.

208675, 9/13/79, 30 CFR 56.9-7
An automatic emergency stop device or a guard was not provided for both sides of return conveyor troughing idlers.

8.

208676,. 9/13/79, 30 CFR 56.9-7
An automatic emergency stop devi~e or a guard was not
provided for the radial stacker feed conveyor troughing idlers.

9.

208677, 9/13/79, 30 CFR 56.14-1
An adequate tail pulley guard was not prdvided for the radial
stacker feed conveyor. Back and top section missing and side
sections were not covering the pinch point and tail pulley blades.

10.

208679, 9/13/79, 30 CFR 56.14-1
The Caterpillar 966-B S/N 75A 4309 front-end loader was not
provided with an automatic reverse signal.

11.

208679, 9/13/79, 30 CFR 56.14-1
An adequate tail pulley guard
,.. was not provided for the return
conveyor. Back and top sections were missing.

12.

208680, 9/13/79, 30 CFR 56.14-6
The front section of V-belt drive guard· was not replaced on
the 3 foot telsmith crusher.

13.

308681, 9/13/79, 30 CFR 56.9-22
Berms were not provided on the primary hopper dumping ramp.
Both sides were elevated approximately fifteen feet.

Testimony and evidence presented by the petitioner
MSHk Inspector Donald C. Fowler confirmed that he issued Citation No.
208669, on September 13, 1979, after conducting an inspection of respondent's
mining operation. He also confirmed the fact that he was accompanied on his
inspection by a representative of the respondent company and he co~firmed
that he issued the remaining citations which are in issue in these
proceedings. Mr. Fowler testified as to the conditions which he found
and which prompted him to issue the citation for a lack of a reverse
backup alarm on the front-end loader in question, including his opinion
concerning the gravity of the conditions cited as well as the question
of negligence and good faith compliance on the part of the respondent. (Tr. 27-58).
Testimony and evidence presented by the respondent
Mine Operator Walter Ducharme cqnfirmed that he is a co-owner of the
respondent mining company, and he testified concerning the circumstances
surrounding the issuance of Citation No. 208669._ He indicated that the
front-end loader in question had a factory-installed backup alarm, but
that a wire had become disconnected and rendered it inoperative when
the inspector observed it in operation. He also alluded to the fact that
he was requested by a local town councilm~n to disconnect the backup
alarms because they were making·too much noise and resulted in complaints _
from persons living in a near-by town. Mr~ Ducharme disputed the inspector's
contention that two welders working near the loader were placed in a
hazardous position by the lack of a backup alarm and he indicated that the
workers were some distance away working behind a steel structure which
isolated them from any possibility of being run· over by the loader in
question (Tr. 61-78).

1614

Subsequent settlement disposition of the citations
At the conclusion of the testimony and evide.nce concerning the first
cited citation, and at the request of the parties, I rendered a tentative
bench decision wherein I advised the parties that I believed the evidence
established the fact of violation, that the violation resulted ~ram ordinary
negligence, that it was serious, and that the respondent exhibited rapid
good faith compliance in achieving abatement of the conditions cited.
I also made tentative findings concerning the size of respondent's operation,
the effect of the penalties on respondent's ability to remain in business,
and an initial finding that the history of prior violations would not
warrant any increases in the penalties assessed in this case.
The -parties were afforded an opportunity to confer with each other
out of the presence of the court for the purpose of finalizing a proposed
settlement, and pursuant to Commission Rule 29 CFR 2700.30, were afforded
an opportunity to present their oral arguments in support of a settlement
of all of the citations in issue in this case for my consideration, and
these arguments were made on the record (Tr. 79-88). In addition, the
parties stipulated as to the authenticity and admissibility of copies
of all of the citations and abatements issued in this case, including copies
of the inspector's narrative statements pertaining to each citation
wherein the inspector comments on the questions of gravity, negligence, and
good faith compliance as to each of the citations (exhibits G-1 through G-13).
After careful consideration of the arguments p~esented by the petitioner
in support of the proposed settlement, including a consideration of the
pleadings and exhibits, which are a part of the record in this case, I have
made the following findings and conclusions concerning the statutory civil
penalty assessment criteria found in section llO(i) of the Act.
Fact of violations
Respondent has conceded the fact of violation as to each of the
citations issued in this case, and they are AFFIRMED.
Size of Business and Effect of Civil Penalties on Respondent's Ability
to Remain in Business
The parties stipulated that the respondent is a small family-owned
sand and gravel company employing seven full-time employees. Although
respondent indicated that it has a "marginal" operation, no evidence
was presented that the assessment of the civil penalties for the citations
in question will adversely affect·its ability to remain in business and
I conclude that they will not.
Good faith compliance
Petitioner agreed that the conditions and practices cited by the
inspect<"l'.' in each of the citations issued in this case were abated in
good faith by the ".'espondent prior to the time fixed by the inspector. I
conclude that resi:Jondent exercised rapid good faith compliance in abating
the citations issued and have considered this fact in approving the
settlement disposition of' the citations in question.

.

1 1.'0 1. ,)r:·

History of Prior Violations
Petitioner stated that the respondent had been served with two prior
citations in July, 1978,, for alleged violations of 30 CFR 56.9-7 and 56.14-1.
However, petitioner could not confirm that civil penalties were assessed
or paid for those citations, and respondent asserted that the citations were
subsequently dismissed, but could not confirm that fact. Under the circumstances,
since there is no evidence of any paid prior citations, I can only conclude
that respondent has no prior history of violations for purposes of the
penalty assessments levied for the citations in question in this proceeding.
Further 1 assuming that the respondent had paid the two previous assessments,
I cannot conclude that two prior citations would warrant any additional
increases in the assessments .for the citations in question here.
Negligence
I conclude and find that with the exception of Citations 208672, 208673,
and 208679, the remaining citations resulted from the respondent's failure
to exercise reasonable care to prevent the conditions cited and that this
amounts to ordinary negligence. The three-citations listed concern
violations of the guarding standards found in 30 CFR 56.14-1, and petitioner
asserted that respondent had been led to believe by a prior inspection
that the guards which were installed on the equipment cited by the inspector
on September 13, 1979, were adequate. Under the_ circumstances, I cannot
conclude .that respondent was negligent in those instances and I have considered
this fact in approving the settlement dispositions for the citations in
question.
Gravity
The information contained in the inspector's narrative statements
fqr each of the cited violations reflects that all of the conditions and
practices cited by the inspector were serious, and I adopt these observations
by the inspector as my finding with respect to this question.
Conclusion
After careful review and consideration of the pleadings, arguments,
and information of record in support of the proposed settlement, I conclude
and find that it is reasonable and in the public interest. Accordingly,
pursuant to 29 C.F.R. 2700.30, the settlement is APPROVED, and the citations,
initial assessments, and the settlement amounts are as follows:
Citation No.

Date

30 CFR Standard

Assessment

208669
208670
208671

9/13/79
9/13/79
9/13/79

56.9-87
56.9-2
56.12-32

$

60
78
40

Settlement
$

35
68
30

Citation No ••

Date

30 CFR Standard

Assessment

Settlement

208672
208673
208674
208675
208676
208677
208778
208679
208680
208681

9/13/79
9/13/79
9/13/79
9/13/79
9/13/79
9/13/79
9/13/79
9/13/79
9./13/79
9/13/19

56.14-1
56.14-1
56.11-1
56.9-7
56.9-7
56.14-1
56.9-87
56.14-1
56.14-6
56.9-22

$

36
48
56
56
56
48
52
56
56
48
690
$

$

10
10
56
40
40
10
35
10

31
40
$ 415.

Order
Respondent IS ORDERED to pay civil penalties in the settlement
amounts shown above in satisfaction of the citations in question within
thirty (30) days of the date of this decision and order, and upon receipt
of payment by MSHA, this.proceeding is DISMISSED.

~~.~J~~
Administrative Law Judge

Distribution:
Clifford R. Kinghorn, Esq., Boyer, Kinghorn & Harkaway, 36 Chandler St.,
Nashua, NH 03060 (Certified Mail)
Constance B. Franklin, Esq., U.S. Department of Labor, Office of the
Solicitor, JFK Bldg., Govemment Center, Boston, MA 02203 (Certified Mail)

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

WILLIA11 R. JEWETT,
Complainant

JUN 25 9J1

Complaints of Discharge,
Discrimination, or Interference
Docket Nos. DENV 79-3lf6-M and
CENT 80-204-DM

v.
MISSOURI PORTLAND CEMENT COMPANY,
Respondent

Kansas City Mine and Plant

DECISION DISMISSING COt1PLAINTS
Counsel for respondent filed on June 8, 1981, in the above-entitled proceeding a copy of a release signed by complainant. The release states that
complainant has released and forever discharged respondent from all suits,
actions, causes of actions, damages, claims, or demands, in law or in equity,
which complainant ever had, has, or hereafter might have, from the beginning
of the world to the present time, with respect to any claims, including those
involved in the complaints filed in this proceeding in Docket Nos. DENV 79346-M and CENT 80-204-DH.
Complainant's release of all claims made in this proceed.ing are based
on a settlement agreement between him and respondent dated May 21, 1981.
That settlement agreement shows that respondent agreed to pay complainant
$3,873.00 and agreed to abide by certain procedural matters in connection
with an age discrimination complaint filed by complainant under the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq.
A hearing was scheduled to be held in this pro~eeding on November 14,
1979, but that hearing was indefinitely continued at complainant's request
so that complainant could obtain an attorney to represent him at the hearing.
After complainant had decided not to hire an attorney to represent him, the
hearing was rescheduled to be held on October 15, 1980. The hearing was
thereafter continued again at complainant's request because he stated that
he was engaged in settlement negotiations with respondent. In the order
granting the second continuance I specifically stated that complainant would
b.e expected to file a request that his complaints be dismissed if he should
reach a settlement with respondent.
On December 17, 1980, respondent's counsel submitted for my approval a
draft of a proposed settlement agreement. In a letter dated December 18~
1980, I returned the draft of the settlement agreement after I had signed
the draft to indicate that it would.be a satisfactory method of discharging
the complaints.filed in this proceeding. About 5 months after I had returned
the draft of the settlement agreement, I wrote a letter dated May 11; 1981,
in which I requested that an executed copy of the proposed release be sent
to me along with a statement by complainant that he wished to have his complaints in this proceeding dismissed on the basis of the settlement agreement.
Complainant ignored the letter of May 11, 1981, but respondent's counsel
immediately replied to my letter by submitting on May 18, 1981, a copy of the

1618

settlement agreement and a letter in which he stated that complainant had
apparently not yet signed the settlement agreement or release. On June 8,
1981, counsel for respondent submitted a release signed by complainant on
January 3, 1981.
Complainant has still not filed a letter requesting that his complaints
in this proceeding be dismissed, but the release sent to me by respondent's
counsel shows that complainant has released respondent from any claims
which could possibly be raised in this proceeding. Therefore, I find that
the facts hereinbefore discussed support a conclusion that the complaints
filed in this proceeding should be dismissed.
WHEREFORE, for the reasons given above, it is ordered:
The complaints of discharge, discrimination, or interferen~e filed in
Docket Nos. DENV 79-346-M and CENT 80-204-DM are dismissed.

~(]-~

Richard C. S t e f f e y 7
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:
Mr. William R. Jewett, 4206 West 73rd Street, Prairie Village, Kansas
66208 (Certified Mail)
Lawrence E. Moncrief, Esq., Attorney for Missouri Portland Cement
Company and H.K. Porter Company, Inc., Porter Building, Pittsburgh,
PA 15219 (Certified Mail)

lll1B

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

Civil Penalty Proceeding

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

BIG THREE COAL COMPANY,
Respondent

Docket Nos.

Assessment Control Nos.

KENT 80-289
KENT 80-290
KENT 30-324
KENT 80-325
KENT 80-329

15-05179-03010
15-05179-03012
15-05179-03013
15-05179-03014
15-05179-03015

No. 1 Mine
DECISION
Appearances:

Darryl A. Stewart, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Charles E. Lowe, Esq., Lowe, Lowe & Stamper,
Pikeville, Kentucky, for Respondent.

Bafore:

Administrative Law Judge Steffey

Pursuant to a notice of hearing dated November 17, 1980, as amended
January 13, 1981, a hearing in the above-entitled proceeding was held in
Pikeville, Kentucky, on March 5, 1981, under section 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 315(d).
The issues in civil penalty cases are whether violations of the mandatory health and safety standards occurred and~ if so, what civil penalties
should be assessed, based on the six criteria set forth in section llO(i)
of the Act.
After the hearing had been convened i~ this proceeding, an inspector
testified in support of Citation No. 703127 which alleged that respondent
had violated 30 C.F.R. § 75.301 because the volume of air.in the last open
crosscut was less than the minimum quantity of 9,000 cubic 'feet per minute
required by section 75.301. The inspector stated that the air velocity was
. so low that it would not turn the blades on his anemometer (Tr. 10-12). The
inspector testified that he had gone to respondent's· No. 1 Mine to investigate
a roof-fall accident. Hhile the inspector was in the mine, he wrote Citation
No. 708127, but the inspector stated that the low air velocity in the last
open crosscut had no bearing on the cause of the accident and that the citation should be considered as a routine citation written as if the inspector
had been conducting a "spot" inspection, that is, an inspection other than
the four regular inspections required each year by section 103(a) of the Act.
The inspector did not consider the violation to be serious because no
coal was being produced on the day the citation was written (Tr. 13-14).

2

The inspector stated that the anemometer w.ould not turn if the air velocity
was less than 50 feet per minute. He concluded that the air velocity was
somewhere between 0 and 50 feet per minute. He stated that other persons
involved in investigatin& the accident were in the last open crosscut and
that no one had any difficulty in breathing (Tr. 22-23). The inspector said
that the cause of the air deficiency was the fact -that no curtain had been
hung in the second open crosscut from the face and the lack of a curtain
caused the air to be coursed from the second open crosscut to the return
before being directed into the last open crosscut (Tr. 24).
The inspector first based his belief that the violation was associated
with ordinary negligence by stating that the preshift examiner should have
noticed the lack of air in the last open crosscut and should have reported
it to mine management, but the inspector retracted that claim after he
acknowledged that the mine had been closed by an order written under section
103(k) of the Act so that an investigation of the accident could be made.
Since no one could have made a preshift examination while the mine was closed,
the inspector was unable to say exactly how the operator could have known
that a curtain had not been installed in the last open crosscut (Tr. 18). The
inspector testified that the violation had been; corrected in less time than
he had allowed for abatement in his citation (Tr •. 15).
Larry Ratliff, who is a half owner of Big Three Coal Company, claimed
that the curtain in the second open crosscut could have been knocked down
between the occurrence of the accident on September 18, 1979, and the time
that the inspector went into the mine the next day (Tr. 32). Although the
inspector testified that occurrence of the accident had no bearing on the
lack of a curtain in the second open crosscut, there is no real certainty
as to whether the curtain had never been erected at all, or had been installed during the previous production shift and had been torn down after
the accident occurred.
·
The evidence supports a finding that a violation of section 75.301
occurred. As to the crit,eria of gravity and negligence, the evidence supports a finding that the violation was nonserious and that it was associated
with a low degree of negligence in view' of the fact that neither the inspector nor the owner could say for certain that the curtain had been in place
during the time that coal had last bee~ produced in the mine.
After the parties had presented evidence with respect to the first violation alleged in this proceeding, Mr. VLarry Ratliff, who is half owner of
Big Thre~ Coal Company, presented some detailed testimony bearing on the
criteria of the size of respondent's business and whether the payment of
penalties would cause respondent to discontinue in business. Mr. Ratliff
testified that respondent had opened its mine in August 1979 and had closed
the mine on June 15, 1980, after occurrence of~a massive roof fall which
covered up respondent's continuous-mining machine, as well as a feeder and
a shuttle car which respondent had been leasing from Island Creek Coal
Company (Tr. 39).

1H2J

3

Before respondent closed its mine, it had employed approximately 21
miners and had produced about 150 tons of coal per day. Respondent was
under contract to produce the coal for Island Creek Coal C~mpany. Island
Creek paid respondent $19.25 per ton, less $4.80 per ton for such services
as removal of impurities from the coal, and maintenance of a reclamation
fund, providing electric power, and~use of bathhouse facilities. Respondent
also had to pay all labor costs as·sociated with producing coal and pay for
hauling the coal to Island Creek's prepearation plant (Tr. 37-39).
Mr. Ratliff, in addition to having a 50-perce~t interest in Big Three
Coal Company, also had a half interest in Vanhoose Coal Company. The Vanhoose
Company stopped mining coal on April 4, 1980, and the 265 Lee Norse continuousmining machine being used by the Vanhoose Company was transferred to Big
Three's Mine and Big Three assumed the payments on the Lee Norse whi.ch
Vanhoose Company had been making prior to its discontinuance in business
(Tr. 47). It was not possible to recover the continuous-mining machine
after the massive roof fall occurred in respondent's mine. Respondent was
also unable to recover a feeder and a shuttle car which were being leased
from Island Creek. Mr. Ratliff testified that the cost of the timbers and
other equipment required for recovering the equJpment was estimated to be
$387,000, whereas the origi~al cost of the Lee Norse was $278,000. Respondent's insurance on the Lee Norse was sufficient to pay the remaining amount
due on it as well as $49,000 in debts which respondent owed to Ingersoll
Rand (Tr. a4; 46-47; 50).
When Island Creek found that Mr. Ratliff was unable to recover its feeder
and shuttle car which had been covered up by the roof fall, Island Creek
cancelled its contract with Big Three Coal Company and Mr. Ratliff was unable
to reopen the Big Tl:r.ee Hine at a different location. Mr. Ratliff's counsel
mailed to me on May :..d, 1981, some financial data a:nd a copy of the only
income tax return which Big Three has filed. The return covers the entire
period that Big Three was in business. According to the tax return, Big Three
incurred a net loss of $96,016.79. Other data submitted by respondent show
that it has no assets to pay existing obligations amounting to $109,931.79.
Respondent's counsel in this proceeding stated at the hearing that respondent planned to file a bankruptcy petition within a week or 10 days after
the hearing was held on March 5, 1981 (Tr. 56). In a letter to me dated
May 25, 1981, respondent's counsel stated that respondent still plans to
file a bankruptcy petition in the near future.
Mr. Ratliff now has no interest in any active coal mine (Tr. 35). He is
now running a hardware store (Tr. 30) and Mr. Ratliff does not plan to mine
coal at any time in the future. His position as to the business of producing
coal was given at the hearing (Tr. 52):
I would like to state it for the record, my feelings right
to this day, if there is never another lump of coal mined until
I have got any part in it, they will never mine another lump.

1622

4

When the -evidence summarized above was obtained at the hearing, I asked
Mr. Ratliff why he thought that any worthwhile good would be accomplished by
having inspectors testify as to the remaining 25 violations involved in this
consolidated proceeding in view of the fact that his only defense was inability to pay penalties. His reply to that question was (Tr. 53):
Well my feeling is Big Three has no assets. He have got
nothing that anybody can get. If Big Three had anything we would
be more than happy to sell it and pay these debts. But we just don't
have anything.
The evidence in this proceeding shows that respondent did not request
a hearing because it wishes to contest whether the violations occurred, but
simply wanted to present evidence to show that respondent would be unable
to pay penalties even if it agreed to a settlement under which it would pay
a portion of the amounts proposed by the Assessment Office. Although respondent has not yet filed a petition in bankruptcy, there is no reason to doubt
its statement that it is planning to do so. If large penalties were to be
assessed, the Department of Labor could collect them only by filing as a
creditor in the bankruptcy proceeding because respondent's evidence indicat·es that it has no assets which could be seized and sold in order to
collect the penalties. Even if some assets could be discovered in the bankruptcy proceeding, the collection of large civil penalties would reduce the
amount which other creditors could obtain. Since Mr. Ratliff is out of the
coal business and does not intend to resume the business of producing coal,
assessment of large penalties would have no deterrent effect because he
would not personally be.paying the penalties from any assets which he has
not already lost from his venture into the coal business.
I stated at the hearing that I would review the citations and order
which are the subject of the five Proposals for Assessment of Civil Penalty
and would reduce the penalties "by a considerable amount'' in light of the
fact that respondent is out of business and has no assets from which penalties can be paid (Tr. 56). If inspectors had been called to testify as· ·to
each of the 25 alleged violations as to which no testimony was taken, a
period of about 2 hearing days would have been required. Even if all of
the violations had been shown to have been very serious and to have been
accompanied with gross negligence, I would still have felt obligated to
assess relatively small penalties because a small company is involved and
because it is no longer in business and has no assets from which penalties
can be paid. Therefore, the remaining portion of this decision will consist
of a brief review of the total violations alleged in this proceeding and a
tabulation listing the alleged violations and the amount of the penalty
assessed for each violation, based on the six criteria.
Docket No. KENT 80-289
The first violation alleged by the Proposal for Assessment of Civil
Penalty filed in Docket N.o. KENT 80-289 was the violation of section 75.301
which was the subject of considerable testimony in this proceeding, as su~
marized in the first part of this decision. I have already found that the
violation was nonserious in the circumstances and that there was a low

1623

5

degre~

of negligence. The violation .was abated in less time than the irtspector provided, and after it was abated, respondent was supplying a
volume of 34,000 cubic feet per minute to the last open crosscut. Those
facts support a finding that respondent demonstrated better than a normal
effort to achieve compliance and that the penalty otherwise assessable
should be reduced by a small amount under the criterion of good-faith abatement. Respondent's witness stated that respondent had not previously been
cited for a violation of section 75.301. The foregoing "'findings, plus
additional considerations as to respondent's small size, and. adverse financial condition, war.rant assessment of a civil penalty of $10 for the violation of section 75.301 alleged in Citation No. 708127.
No te$timony was received with respect to the remaining three violations
alleged in Docket No• KENT 80-289. Citation No. 708128 alleged a violation
of section 75.1702 because the intake air escapeway was not properly separated from the conveyor belt entry because of respondent's failure to
erect a stopping outby the belt tailpiece. The Assessment Off ice considered that the violation resulted from o_rdinary negligence, that it was very
serious, and proposed a penalty of $114. The Assessment Office did not
reduce the penalty under the criterion of good-faith abatement even though
the violation was abated in less time than provided.for by the inspector.
The Assessment Office shows assignment of no penalty points under the criterion of history of previous ·violations for any of the violations alleged
in Docket No. KENT 80-289 because all of the violations were written in
September 1979 shortly after respondent commenced producing coal.
Citation No. 707945 alleged a violation of section 75.200 because
respondent failed to install reflectors at the last row of roof supports.
The Assessment Office considered that the violation was the result of ordinary negligence, that it was moderately serious, and proposed a penalty of
$44. The Assessment Office did not reduce the penalty under the criterion
of good-faith abatement although respondent ?bated the violation in 15 minutes
which was 10 minutes less than the time given by the inspector.
Citation No. 707946 alleged a violation of section 75.604(a) because a
permanent type splice in the trailing cable to the coal drill was not mechanically strong and lacked adequate electrical conductivity and flexibility.
The Assessment Office considered that the violat~on was th~ result of ordinary negligence, that it was moderately serious, and proposed a penalty of
$66. Abatement was performed within the 30 minutes provided for by the .
inspector.
I find that the three violations, as to which no testimony was received,
occurred. The penalties proposed by the Assessment Off ice are a litttle on
the high side for failure to give respondent due credit for rapid abatement.
Of course, the Assessment Office had no evidence as to respondent's financial
condition. My order will hereinafter show reductions in the total penalties
of $290 proposed.by the Assessment Office to a total of $122, or approximately
50 percent, based on the fact that respondent is out of business and has no
assets from which penalties can be collected. Of coµrse, the penalty of $10
assessed for the violation of section 75.301 is based on evidence received
at the hearing and does not have to be compared to the penalty proposed by
the Assessment Office.

Docket No. KENT 80~290
The Proposal for Assessment of Civil Penalty filed in Do~ket No. KENT
80-290 alleged occurrence of five violations. Citation No. 725312 alleged
a violation of section 77.701 because respondent had failed to provide a
frame ground for a-starter box. Citation No. 725313 alleged a violation
of section 77.506 because respondent had used a solid wire, instead of a
fuse, for the wire supplying power to the office and supply trailer.
Citation No. 725314 a,lleged a violation of section 75.902 because a failsafe ground check monitoring circuit had not been provided for, the power
circuit for the feeder on the conveyor beilt. Citation No. 725315 alleged
a violation of section 75.1722 because respondent had failed to provide a
protective guard for the conveyor drive chain on the feeder. Citation No.
725316 alleged a violation of section 75.518 because respondent had used
~ solid wire, in lieu of a fuse, for the wire providing power to the control
transformer. The Assessment Office found that all of the violations re· sulted from ordinary negligence and found that the use of solid wires, instead of fuses, was the result of a very high degree of ordinary negligence.
All· of the violations were properly considered to be serious. The Assessment Off ice appropriately reduced the penalties for the violations of
sections 77.701 and 75.518 because they were abated rapidly. Finally, the
Assessment Office assigned an amount of $8 to each penalty under the criterion of history of previous violations.
The Assessment Office· proposed penalties of $52, $106, $56, $90, and $98,
respectively, or a total of $402, for the five violations alleged in Docket
No. KENT 80-290. I find that the Assessment Office proposed penalties
which are well supported by the facts alleged in the citations. I find that
all five violations occurred, but my order will hereinafter provide for
reductions of approximately 50 percent in each of the penalties, or a total
of $201, because_ of the fact that respondent is out of business and has no
assets from which penalties can be coll~cted.
Docket No. KENT 80-324
The Proposal for Assessment of Civil Penalty filed in Docket No. KENT 80324 seeks assessment of civil penalties for eight alleged violations. Citation
No. 709045 alleged a violation of section 75.1725 because a snuttle car lacked
operable headlights and was, therefore, not maintained in a safe operating
condition. Citation No. 708057 alleged· that respondent had violated s.ection
77.1107 by failing to provide a slippage switch to stop the No. 1 belt auto·matically in case of excessive slippage: Citation No. 708059 alleged a
violation pf section 75.1102 for failure to provide ~ slippage switch for
the No. 2 belt head. Citation No. 705980 alleged a violation of section
75.316 because respondent had not erected permanent_ brattices as close to
the working face as is required. Citation No. 707996
alleged a violation of
_,,,
section 75.400 because respondent had allowed loose coal, float coal dust,
oil cans, and paper boxes to accumulate for a distance of about 1200 feet in
the No. 4 entry and adjoining crosscuts. Citation No. 707997 alleged a violation of section 75.200 because respondent had failed to provide additional
supports in an area which was 28 feet wide. Citation No. 725317 alleged a
violation of section 75.1710-1 because respondent had failed to provide a

1625

7

cab or canopy for a shuttle car being used in 60-inch coal. Citation No.
725318 alleged a second violation of section 75.1710-1 because respondent
had failed to provide a canopy for its other shuttle car being used in 60inch coal.
The Assessment Office considered that all of the eight violations
were the result of ordinary negligence. All of the violations were considered to be serious or very serious. Respondent was given no credit for
rapid abatement and the Subsequent Action she.ets show that no extraordinary
effort was made to abate any of the violations. Finally, the Assessment
Office assigned $8 to each penalty under the criterion of history of previous
violations.
I find that all eight violations occurred and that the Assessment Office
proposed penalties which are supported by the conditions described in each
of the citations. The penalties proposed by the Assessment Office were
$78, $44, $150, $114, $225, $106, $90, and $90, respectively, or a total of
$897, for the eight violations discussed above. My order will hereinafter
reduce the penalties by approximately 50 percent to a total of $449 because
of the fact that respondent is out of business and has no assets from which
penalties can be collected.
Docket No. KENT 80-325
The Proposal for Assessment of Civil Penalty filed in Docket No. KENT 80325 alleged occurrence of seven violations. Citation No. 708054 alleged a
violation of section 75.1710-1 because a canopy had not been installed on a
cutting machine being used in 60-inch coal. Citation No. 70.8056 alleged·
a violation of section 75.1710~1 because a canopy had not been installed on
a shuttle car being used in 60-inch coal. Citation No. 709043 alleged a violation of section 75.313 because the methane monitor on the loading machine
was not in operable condition. Citation No. 707989 alleged a violation of
section 75.1725 because from 30 to 40 bottom rollers on the No. 2 conveyor.
belt were stuck. Citation No. 707998 alleged a violation of section 75-1710-1
because the canopy had been removed from the loading machine; the violation
was abated by removal of the cutting machine from mine property. Citation
No. 726231 alleged a violation.of section 75.1100-l(b) because respondent
had failed to provide a waterline for firefighting purposes along the conveyor belt for a distance of about 800 feet. Citation No. 726234 alleged
a violation of section 75.326 because air being used to ventilate the Nos. 1
and 2 conveyor belts was traveling in reverse direction, the condition being
the result of· adverse roof conditions and water seepage.
The Assessment Off ice found that all of the violations were the result
of ordinary negligence and that all of them were serious or moderately serious.
The Assessment Office appropriately reduced no penalties because of respondent's
having showh a rapid effort to achieve compliance. The Subsequent Action
sheets show that no extraordinary effort was made to achieve compliance in
any case. Finally, the Assessment Office assigned $8 to each penalty under
the criterion of respondent's history of previous violations. The Assessment
Office proposed penalties of $90, $90, $44, $52, $78, $72, and $150, respectively, or a total of $576, for the seven violations.

1C2f·

8

It should be noted that Citation No. 726231 incorrectly alleged a violation of section 75.1100-l(b). That subsection refers to portable water
cars, whereas the condition described in the citation was that respondent
had failed to provide a waterline along a conveyor belt. A waterline is
required by section 75.1100-2(b). Inasmuch as the Subsequent Action sheet
terminating the citation shows that respondent did provide a waterline,
there is no doubt but that respondent was aware of the section of the regulations with which it was required to comply. The Commissi~n held 'in
Jir.i Walter Resources, Inc., 1 FMSHRC 1827 (1979), that a citation should
not be vacated simply for failure to show the exact section of the regulations which has been violated, so long as the citation is sufficiently specific to explain to the operator the condition which is considered to be
hazardous and which needs to be corrected. Therefore, my order in this
proceeding will amend Citation No. 726231 to cite a violation of section
75.1100-2(b) instead of section 75.1100-l(b). My order will also amend the
Proposal for Assessment of Civil Penalty so as to allege a violation of
section 75.1100-2(b) and will assess a penalty for a violation of section
75.1100-2(b) instead of a penalty for a violation of section 75.1100-l(b).
I find, after making the correction discussed in the preceding para~
graph, that all seven violations occurred and that the Assessment Office ·
proposed appropriate penalties in each instance. My order will hereinafter
assess total penalties of $288 which are 50 percent less than those proposed
by the Assessment Office because of the fact that respondent is out of
business and has no assets from which penalties can be collected.
Docket No. KENT 80-329
The Proposal for Assessment of Civil Penalty filed in Docket No. KENT 80329 seeks assessment of civil penalties for two alleged violations of section
75.200. The first violation was alleged in Citation No. 726230 which stated
that respondent had failed to follow its roof-control plan by not installing·
straps or crossbars for a distance of about 60 feet. The second violation
of section 75.200 was cited in Order of Withdrawal No. 726235. issued under
the inuninent-danger provisions, or section 107(a), of the Act. The violation
alleged in the order was that respondent had removed seven cuts of coal from
the.Nos. 4 and 5 pillar blocks and had installed only four breaker posts,
whereas the roof-control plan requires installation of eight breaker posts
and a row of line timbers installed on 4-foot centers.
The Assessment Office found that the first violation of section 75.200
was the resul~ of ordinary negligence, that it was moderately serious, and
proposed a penalty of §98. The Assessment Office found that the second
violation of section 75.200 was the result of gross negligence, was very
serious, and proposed a penalty of $445.
I find that both violations of section 75.200 occurred and that the
Assessment Office appropriately evaluated the criteria in proposing the
total penalties of $543 described above. My order will hereinafter reduce
the proposed penalties to $272, or by about 50 perdent, because respondent
is no longer in business and has no assets from which penalties can be
cqllected.

162'i

9

WHEREFORE, for the reasons hereinbefore given, it is ordered:
(A) The Proposal for Assessment of Civil Penalty filed in Docket No.
KENT 80-325 is amended to show that it seeks a penalty for a violation of
30 C.F.R. § 75.1100-2(b) instead of 30 C.F.R. § 75.1100-l(b) and Citation
No; 726231 is amended to show that it alleges a violation of 30 C.F.R.
§ 75.1100-2(b) instead of 3o' C.F.R. § 75.1100-l(b).
(B) Within 30 days from the date of this decision, respondent shall
pay civil penalties totaling $1,332.00. The penalties assessed herein
are allocated to the respective violations as follows:
Docket No. KENT 80-289

. ..................... $
.....................
. .....................

Citation No. 708127 9/19/79 § 75.301
Citation No. 708128 9/19/79 § 75.1707
Citation No. 707945 9/24/79 § 75.200
Citation No. 707946 9/24/79 § 75.604(a)
Total Penalties Assessed in Docket No. KENT 80-289

...................
........ $

10.00
57.00
22.00
33.00
122.00

Docket No. KENT 80-290

..... ................. $ 26.00
...................... 53 .oo
......................
28.00
45.00
. ....................
......................
49.00
........ $ 201.00

Citation No. 725312 1/28/80 § 77. 701
·•
Citation No. 725313 1/28/80 § 77. 506
Citation No. 725314 1/29/80 § 75.902
Citation No. 725315 1/29/80 § 75.·1722
Citation No. 725316 1/29/80 § 75.518
Total Penalties Assessed in Docket No. KENT 80-290
Docket No. KENT 80-324

...............• ..... $ 39.00
....................
22.00
75.00
....................
.......................
57.00
...................... 113.00
. .....................
53.00
................... 45.00
45.00
...................
........ $ 449.00

Citation No. 709045 10/12/79 § 75.1725
Citation No. 708057 10/16/79 § 77 .1107
Citation No. 708059 10/16/79 § 7 5 .1102
Citation No. 705980 1/3/80 § 75.316
Citation No. 707996 1/29/80 § 75.400
Citation No. 707'997 1/29/79 § 75.200
Citation No. 725317 1/29/80 § 75.1710-1
Citation No. 725318 1/29/80 § 75.1710-1
Total Penalties Assessed in Docket No. KENT 80-324
Docket No. KENT 80-325

.................. $ 45.00
45.00
.....................
22.00
....................
26.00
...................
39.00
.................
36.00
75.00
.......................
........ $ 288.00

Citation No. 708054 10/12/79 § 75.1710-1
Citation No. 708056 10/12/79 § 75.1710-1
Citation No. 709043 10/12/79 § 75. 313
Citation No. 707989 10/17/79 § 75.1725
Citation No. 707998 1/29/80 § 75.1710-1
Citation No. 726231 5/5/80 § 75.1100-2(b)
Citation ~o. 726234 5/6/80 § 75.326
Total Penalties Assessed in Docket No. KENT 80-325

..................

lfi2H

10

Docket No. KENT 80-329
Citation No. 726230 5/5/80 § 75.200 .•••••••••••••••••••••• $
Order No. 726235 5/12/80 § 75.200 ••...•••••••..••••.••••••
Total Penalties Assessed in D.ocket No. KENT 80-329 • • • • • • • • $

49.00
223.00
272.00

Total Civil Penalties Assessed in This Proceeding ••••••.•• $1,332.00

~ c' o:f*P"V_ ..

Richard C. Steffey~
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:
Darryl•A. Stewart, Attorney, Office of the Solicitor, U.S. Department
of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Charles E. Lowe, Esq., Attorney for Big Three Coal Company, Lowe,
Lowe & Stamper, P.O. Box 69, Pikeville, KY 41501 (Certified Mail)

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

JUN 251981

Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAL~TY AND HEAL TH
ADMINISTRATION (MSHA),
Petitioner

Docket No. KENT 81-12
Assessment Control
No. 15-12272-03002

v.
Chisholm Mine No. 2
PIKEVILLE COAL COMPANY,
Respondent
DECISION
Appearances:

George Drumming, Jr., Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
John M. Stephens, Esq., Stephens, Combs & Page,
Pikeville, Kentucky, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued March 12, 1981, a hearing in the
above-entitled proceeding' was held on May 7, 1981, in Prestonsburg, Kentucky,
under section 105(d) of the F7deral _Mine Safety and Health Act of 1977,
30 u.s.c. § 815(d).
After the parties had completed their presentations of evidence, I
rendered the bench decision which is reproduced below (Tr. 84-95):
This hearing involves a Proposal for Assessment of Civil Penalty
filed on November 21, 1980, by the Secretary of Labor in Docket No.
KENT 81-12, seeking to have a civil penalty assessed for an alleged
violation of 30 c.F.R. § 75.1101 by Pikeville Coal Company.
The issues in a civil penalty case are whether a violation of the
mandatory safety standards or the Act occurred and, if so, what penalty
should be assessed, based on the s~x criteria set forth in Section llO(i)
of the Federal Mine Safety and Health Act of 1977. I shall first make
some findings of fact.
1.
On June 9, 1980, Inspector Kellis Fields made an investigation at the Chisholm No. 2 Mine of the Pikeville Coal Company. At
that time, he examined the belt drive, located on the surface, for
the underground belt conveyor which extended up the No. 4 entry. He
observed that there was no fire suppression system on the belt drive,
and he therefore issued Citation No. 722892 alleging a violation of
section 75.1101. The language in that citation reads as follows:
"Deluge type water sprays or foam generators were not provided for
the main belt conveyor drive that is installed within 25 feet of the
No. 4 portal drift opening of the south side mains." Subsequently,

1630

2

on June 18, 1980, the inspector issued a modification of that citation
in which he inserted the words, "intake air" between the word "portal"
and "drift opening," so that the language would read that the belt
drive did not have "installed within 25 feet of the No. 4 portal intake
air", etc., the proper fire suppression system required by section
75.1101.
2.
At the hearing, the inspector explained that the reference in
his citation to the 25-foot distance from the highwall had been alleged
in the citation because the inspector's manual provided some guidelines
for the requirement of application of section 75.1101 to surface belt
drives, and those guidelines provide that the fire suppression system
is required if the belt drive is within 25 feet of the portal.
3.
The inspector made it clear in his testimony that while he
used the guidelines in the manual and made the measurement to show that,
in his opinion, he was justified under the manual for citing a violation
of section 75.1101, he believed that he was citing respondent for a violation of section 75.1101, not for a violation of a guideline in a manual.
Technically, he said that he could cite respondent for a violation of
section 75.1101 even if the belt drive were a thousand feet from the
portal. In other words, in his opinion, the distance from the portal
is not relevant for finding a violation of section 75.1101.
4.
Respondent presented its safety director at the Chisholm No. 2
Mine as a witness. His name is Charles Dotson. Mr. Dotson presented
as Exhibit A a diagram showing that the No. 4 entry has an apron located
over it with solid walls on each side of the apron to support it, and
he stated that when he measured the distance from the coal rib itself
to the belt roller, that he obtained a measurement of 38 feet 7 inches.
He also said that, in his opinion, the manual requires the measurement
to be made to the belt roller, rather than to the motor itself, that
had been used as a point of termination of measurement when the inspector obtained the distance of 25 feet from the motor on the belt conveyor
drive to the highwall. Mr. Dotson's Exhibit A also shows that if the
measurement had been made from the edge of the right wall facing the
No. 4 entry of the apron, it would have been a distance of 18 lcet
8 inches to the roller at the motor. The inspector obtained a distance
of 15 feet when he made a measurement from the wall of the apron to the
motor. The distance between the motor itself and the roller is two or
three feet, and I think that the angle from which the two gentlemen
made their measurements accounts for the remaining difference in the
masurements obtained by Mr. Dotson and Inspector Fields.
5.
It was the inspector's opinion that any fire that might start
on the belt drive, even though it was located outside the mine could
get into the No. 4 entry, which is also the belt line, and he said that
despite the fact that the belt line contains what is known as a neutral
split of air, it does take air into the mine from outside, and it does
therefore carry whatever is in the outside air, and if there were a fire
outside, it was his opinion that some smoke from the fire would be carried
up the belt line, and that it would be possible for the smoke to get into
the intake, and therefore, reach the working faces. He admitted that if

1631

3

that were to occor, there would have to be some problem in one or more
curtains being out at the end of .the belt line, or between the belt line
and the intake and return.
6.
Mr. Dotson presented as Exhibit B a diagram of the ventilation
system . in the Chisholm No. 2 Mine and his diagram shows that there are
-- first of ail there's a check curtain just ·inby the No. 4' entry portal,_
and that is supposed to keep all but a small amount of air from going
up the belt line, and, of course, some oxygen has to be in the belt line
in order to supply life to the people who work along the belt line from
time to time, or travel it. In addition to the check curtain at the
intake or portal of the No. 4 entry, there are other check curtains
arranged just inby the tailpiece of the 'belt line, and those check curtains prevent air from the belt line traveling to the face. Of ~course,
there is also a check curtain just outby the belt tailpiece. All of
the protective check curtains would prevent air from getting into the
intake if the air should be carrying smoke from a fire from the outside.
As all parties agree, there would have to be some kind of damage to the
ventilation system in order for smoke from the outside to be carried to
the working face up the No. 4 entry.
7.
From the standpoint of.gravity, not only would it be difficult
for any smoke from a fire to get up the No. 4 entry, but at the time the
citation was written, there was already installed in the vicinity of the
head drive, about which we are talking, a large tank containing water,
and that tank is equipped with pumps and water lines so that if ·a fire
had occurred on the surface a person on the surface would have been
able to combat the fire by the use of a hose attached to that water
supply.
8.
Mr. Dotson testified that if the inspector had not written
this citation that respondent would not have installed a fire suppression system using water on this belt drive on the outside. In fact, the
citation was abated by the installation of a dry chemical system because
Mr. Dotson said that outside the mine the deluge water system, referred
to in 9ection 75.1101, would not have been appropriate because it would
have frozen in the wintertime and would have become inoperative.
I believe that those are the principal facts that should be controlling in a decision in this case. Respondent makes two primary arguments with respect to this notice of violation. First of all, Mr. Stephens
for respondent, has argued that the fac;ility here, the belt drive, is on
the surface of the mine, and that section 75.1101 clearly is a portion
of the regulations which is designed to apply to underground mines, and
he argues that it was improper to cite a belt drive on the surface for a
violation of a safety standard which clearly applies only to underground
facilities. Mr. Drumming, onbehalf of t{le Secretary of Labor, contends
with respect to that arg4ment, that the beit conveyor involved definitely
extended underground, and therefore the underground portion couldn't work
if it didn't have a drive located somewhere, and even though the drive
happened to be on the surface, that that drive was an integral part of

4
an underground belt conveyor system, and therefore was appropriately
cited under a section of the regulations which is applicable to
underground mines.
I am in sympathy with Mr. Stephens' position and I think there is
a lot of merit to his argument here, but I have for 8 years been applying that section to underground belt drives, even though some of those
belt drives have been located on the surface, and I have taken the position that Mr. Drumming takes in this case, which is that since this
belt drive is an integral part of that first flight of the belt conveyor that goes underground, there is no way that we can exempt the
belt drive on this portion of the conveyor belt from the underground
provisions of the regulations. Therefore, I agree that it is appropriate for section 75.1101 to be cited in connection with a belt drive
which is located on the surface.
We then come to Mr. Stephens' other argument, or at least one of
his other arguments, and that is, he says that although he doesn't like
certain portions of the manual because they also refer to application
of section 75.1101 to surface facilities, he says that as a matter of
fact, if you are going to follow the manual, that this particular belt
drive was farther from the portal than 25 feet and, therefore, that
Inspector Fields was not really following the guidelines when he cited
section 75.1101.
As to whether Inspector Fields followed his guidelines depends in
large part on how you look at the measurements of the two individuals
who were witnesses in this case. I think we must get back to the fact
that the possibility of any smoke going underground would depend on
that smoke going into the No. 4 entry, and to get into the No. 4 entry,
the smoke has to pass by the two supports of the apron, which are on
the outside of the mine, and which really are the beginning of the No. 4
entry. So, if you considered the belt drive to be within the 25-foot
distance required by the manual, then even under Mr. Dotson's measurements, the belt drive would be within 25 feet of the No. 4 portal. Consequently, I think that the manual would have been complied with in this
instance, even if that were necessary.
I think, however, that I have to agree with Mr. Drumming and Inspector Fields that we're here dealing with a citation of a regulation and not
with a policy in a manual. The Commission stated in Secretary of Labor
v. Old Ben Coal Company, 2 FMSHRC 2806 (1980), that failure to follow a
manual by itself is not a sufficient basis for vacating a notice of violation or a citation. The Commission held in that case that such instructions are not officially promulgated and do not prescribe rules
of law binding upon an agency. So, I would say, if I were confronted
with a choice here wh~re the inspector is required to follow the manual
down to the last inch in order for him to cite section 75.1101, I would
not say that he has to follow the manual. Therefore, even if the
measurements didn't come within the 25-foot provision, I would, and do,
hold that it is not necessary for him to follow the manual in order to
cite a violation of section 75.1101.

1633

5

I believe that I have taken care of the basic legal arguments
that M~. Stephens has made, and having found that those arguments
should not prevai1, I find that a violation of section 75.1101
occurred.
Having found that a violation occurred, it is uow necessary to
assess a civil penalty based upon the six criteria. The parties have
stipulated that Pikeville Coal Company is subject to thr Act and that
I have jurisdiction to hear and decide the case, and that respondent
operates the Chisholm No. 2 Hine. It has also been stipulated that
respondent is a large operator, that respondent would not be adversely
affected by the assessment of a civil penalty, and that its ability to
continue in.business would not be adversely affected by pa'.)'ing a civil
penalty. Those stipulations cover two of the criteria that have to be
considered.
It has been stipulated as to a third criterion, that respondent
demonstrated a good-faith effort to achieve rapid compliance. As to
a fourth criterion,· history of previous violations, it was stipulated
that respondent has not previously been cited for a violation of section
75 .1101.
The remaining criteria to be considered are negligence and gravity.
As to negligence, Mr. Dotson stated that he thought that there was almost
no possibility that smoke from any fire on the outside could get up this
No. 4 entry where it would endanger anyone working underground, and he
stated for that reason, the company interpreted, and he interpreted,
section 75.1101 as not being applicable to this belt drive. In addition
.to the other reason that has already been given, namely; that the belt
drive was on the surface, section 75.1101 was, in his opinion, not applicable because the belt drive was more than 25 feet from the drift opening,
.and was subject to freezing in winter. All these factors, in his opinion,
made this belt drive exempt from having to have an aut9matic fire suppression system on it. Moreover, he pointed out that someone had to be
stationed on the surfa~e, in the vicinity of this belt drive, and was
stationed on the surface; that all the employees in this company, both
those stationed on the surface and assigned to work underground, a e
trained to apply fire-fighting equipment and methods and, therefore,
could have fought any fire that might have developed. They could have
done so through the use of the fire hose and other facilities on the
surface. Consequently, I cannot find that Respondent was negligent in
having violated sect.ion 75.1101 under those conditions.
As to the criterion of gravity, I have already indicated in my
findings of fac~ above tpat there was almost no probability that any
.smoke from a fire on the belt drive would have gone underground and
would have been a hazard to anyone working underground. In view of
the fact that someone was on the surface ~t all times, it is very likely
that any fire that might have started would have been seen pS soon, or
about as soon, as an automatic system could have taken affect. It
should be pointed out also that the company installed a dry chemical
system so that it would work in any kind of weather regardless of
freezing temperatures.

1B34

6

In.addition to that, I might say that I've had several cases involving Pikeville Coal Company, and it is a very safety-oriented
company. It does try to see that hazards are reduced around its mine
and I think it has an excellent reputation in that regard.
Because of all the aforestated extenuating factors and circumstances, I believe that a civil penalty in this instance should be
the minimum permitted by the Act. Therefore, I assess a civil penalty
of $1. 00.
WHEREFORE, it is ordered:
Within 30 days from the date of this decision, Pikeville Coal Company
shall pay a civil penalty of $1.00 for the violation of section 75.1101
alleged in Citation No. 722892 dated June 9, 1980.

~ C. S-t=-JJJJ_,,

Richard C. Steffey ~
Administrative Law Judge
Distribution:
George Drumming, Jr. Attorney, Office of the Solicitor, U.S. Department of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville,
TN 37203 (Certified Mail)
John H. Stephens, Esq., Attorney for Pikeville Coal Company, Stephens,
Combs & Page, P.O. Drawer 31, Pikeville, KY 41501 (Certified Mail)

0
,_)
1 L'3!

.

FEDERAL MINE S~FETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINJSTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 25 9ll

Civil Penalty Proceeding

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

Docket No. KENT 81-49
Assessment Control
No. 15-11566-3007. F

v.
No. 3 Mine
V AND M MINING COMPANY
OF PAINTSVILLE, INC.,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

George Drumming, Jr., Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
G. C. Perry III, Esq., Paintsville, Kentucky, for
Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to a notice of hearing dated March 12, 1981, a hearing in the
above-entitled proceeding was held in Prestonsburg, Kentucky, on May 5, 1981,
under section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. t 815(d).
After the hearing was convened, counsel for the parties stated that
they.had entered into a settlement ·agreement under which respondent had
agreed to pay a penalty of $2,000 for the single violation of 30 C.F.R.
§ 75.200 alleged in this proceeding, instead of the penalty of $4,000 proposed by the Assessment Off ice.
Section llO(i) of the Act gives six assessment criteria which are required to be used in determining the size of civil penalties. The parties
had been able to stipulate as to all of the six criteria except the question
of whether the operator was negligent with respect to the occcurrence of the
violation. Therefore, counsel for the parties asked that they be permitted
to present evidence solely on the.criterion of negligence. The testimony
of three different MSHA inspectors was· introduced·. After testimony had been
received by three different inspectors, the parties reopened their settlement
discussions and agreed that a settlement penalty of $2,000 was not supported
by the record. Consequently, the final settlement agreement was that respondent would pay a penalty of $1,000.
The parties stipulated that respondent is subject to the provisions of
the Act, that I have jurisdiction to decide the issues, that respondent is
the operator of the No. 3 Mine which produces 137,000 tons of coal annually
and employs about 21 miners, that a miner named Elijah Jude was fatally
injured in a roof fall which occurred in respondent's No. 3 Mine on February 25,
1980, that the inspector who issued the withdrawal order and citation involved

1B3b

2

a

in this case is
duly authorized representative of the Secretary of Labor,
that respondent has violated section 75.200 on three.prior occasions during
the 24 months preceding the occurrence of the violation at issue in this
proceeding, that respondent demonstrated a good-faith effort to achieve
compliance after the citation and order were written, and that the violation
was serious in view of the fact that it caused the death of one miner (Tr. 4-5) •

•

Inspector John S. South wrote Citation and Order No. 707822 whiGh is
the subject of the Proposal for Assessment of Civil Penalty • He testified
that he is responsible for investigating accidents and that he was asked to
investigate the cause of a roof 'fall which occcurred at respondent's mine
on February 25, 1980 (Tr. 10). The roof fall consisted of a single piece
of sandstone which measured 53 feet in length, 23 feet in width, and from
15 to 20 feet in thickness (Exh. 10). The roof fel_! without warning while
the continuous-mining machine was cutting coal. The operator of the
continuous-mining machine ran in one direction and escaped the fall, but
the victim ran in another direction and was caught beneath the·massive rock
(Exh. 10, p. 4). The rock was so heavy that it could not be_moved with two
300-ton jacks and two 50-ton jacks (Tr. 32; 36). The body of the miner who
wa~ killed had to be removed by chipping away the rock and digging into the
floor of the mine. A period of 15 hours was required to recover his body ·
(Tr. 32-33). Three inspectors assisted in the removal of the miner's body
and each of them testified that they had never seen a roof fall which was
made up of a single rock as large.as the one here encountered •.
The inspector who.wrote the order stated th~t respondent had violated
the first safety precaution in its roof-control plan which provides that if
hazardous conditions are encountered, the operator is to install roof supports in addition to the standard 30-inch bolts required by the roof-control
plan (Tr. 12; Exh. 9). The inspector explained that, in this instance, the
additional support would normally consist of installing straps along with
roof bolts. The inspector agreed, however, that even if the operator had
been using straps in this instance, they would have had no effect whatsoever
on holding the roof because the piece that fell was from 15 to 20 feet thick
and no roof bolt would have been able to anchor above a rock that size • . The
inspector agreed that there is no known technology which could have prevented
a roof fall of the size that occurred in respondent's mine (Tr. 14-15).
Another aspect of the roof fall which tended to exonerate respondent
from any negligence was the fact that, although a hill seam existed in the
huge piece of sandstone that fell, the inspector was unsure that the hill
seam could have been observed on both sides of the entry prior to the fall
(Tr. 17). Another inspector was positive that the hill seam could not have
been detected before" the roof fall occurred. He testified that if he had
been mining in the same entry involved in the accident, he would have been
·proceeding in the same way respondent was produc.ing coal. It was his belief
that the roof fall could not have been prevented by any known technology
(Tr. 25). Another factor which contributed to the roof fall was the fact
that a strip mine on the surf ace had been shooting coal directly above
respondent's mine and that work could have loosened the roof of respondent's
mine (Tr. 20).

3

After three different inspectors had presented testimony indicating
that they did not believe respondent could have foreseen the fact that the
roof fall would occur and that they were unaware of any roof-control methods
which could have prevented the fall, the parties agreed that the settlement
penalty should be reduced from the $2,000 first discussed (Tr. 5) to the
amount of $1,000 agreed upon at the end of the hearing (Tr. 37).
The preponderance of the evidence which I have discussed above shows
that respondent could not have detected any hill seams prior to the accident.
If so, respondent·would have had no reason to install the additional support
which is required by its roof-control plan when hazardous conditions are encountered. When it is considered that a small operator is involved, one may
be inclined to wonder if a settlement amount of $1,000 was fair to respondent.
I believe that a penalty of $1,000 is appropriate if one considers all
the implications which can be derived from the total record. Since therhearing opened with a statement by counsel that the case had been settled, ·I did
not go into all the conditions describ.ed in Citation and Order No. 707822
which I would normally have pursued with the inspectors. For example, no
testimony was received as to allegations in the citation and order to the
effect that respondent had been driving some entries and crosscuts at widths
greater than were permitted by the roof-control plan. Also it was alleged
that respondent had performed some work 25 feet inby permanent roof support
(Exh. 4). Moreover, respondent has been cited for three prior violations
of its roof-control plan (Exh. 1). I am not finding that the allegations
discussed in this paragraph were proven because no testimony was received
with respect to them and respondent had no reason to address them since the
witnesses were presented as to a single aspect of the settlement agreement.
I am referring to these matters solely to show that in a fully contested
proceeding, it is very likely that the evidence would have supported findings
as to the six criteria which would have warranted assessment of a penalty as
large as the penalty of $1,000 agreed upon by the parties.
I find that the evidence presented by the parties did fully justify a
reduction of the penalty of .$4,000 proposed by the Assessment Office to the
settlement amount of $1,000.
WHEREFORE, it is ordered:
(A) The motion for approval of settlement is granted and the settlement
agreement is approved.
(B) Pursuant to the settlement agreement, respondent shall, within
30 days from the date of this decision, pay a penalty of $1,000 for the violation of section 75.200 alleged in Citation and Order No. 707822 dated
February 27, 1980.

~C-~

Richard C. Steffey~
Administrative Law Judge
(Phone: 703-756-6225)

1H3H

4

Distribution:
George Drumming, Jr., Attorney, Office of the Solicitor, U. S. Department
of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN 37203
(Certified Mail)
G. C. Perry III, Esq., Attorney for V and M Mining Company of Paintsville,
Inc., P.O. Drawer C, Paintsville, KY 41240 (Certified Mail)

163~J

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

JUN 25 1981

Civil Penalty Proceeding

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

Docket No. VA 80-166
Assessment Control
No. 44-03761-3019 V

v.
No. 2 Mine
ELKINS ENERGY CORPORATION,
Respondent
DECISION
Appearances:

Leo J. McGinn, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Robert T. Copeland, Esq., Copeland & Thurston,
Abingdon, Virginia, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued Ma~ch 3, 1981, a hearing in the
above-entitled proceeding was held on April 21, 1981, in Wise, Virginia,
under section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 815(d).
After the parties had completed their presentations of evidence,
I rendered the bench decision which is reproduced below (Tr. 107-118):
This proceeding involves a Petition for Assessment of Civil Penalty
filed in Docket No. VA 80-166 on October 24, 1980, by the Secretary of
Labor seeking to have a civil penalty assessed for an alleged violation
of 30 C.F.R. § 75.200 by Elkins Energy Corporation.
I shall make some findings of fact on which my decision will be
based.
1.
Inspector Charles Reece went to Elkins Energy Corporation's
No. 2 Mine on June 4, 1980, to make some respirable dust investigations.
He traveled to the face area ~bout 8:00 a.m. While he was in the face
area, he observed that the No. 3 entry had been cut to a depth which
appeared to be more than the 20 feet permitted under the roof:control
plan. He talked to the roof-bolting machine's operator who advised
the inspector that he had made a test hole that morning, and also
that he had just finished completing the installation of a row of
bolts 4 feet outby the row of bolts on which he was working at that
time. The inspector made a measurement from the row of bolts which
had last been installed up to the face area ·after the place had been
completely bolted, and determined that the distance was 28 feet.

1640

2

2.
The inspector's measurement of 28 feet was based upon a
statement made by a witness who was not· available to testify in the·
proceeding today. The inspector, however, drew a diagram, which is
Exhibit 4 in this proceeding, and that diagram shows that the inspector's own observation would permit him to testify, which.he did,
that the distance from the roof bolts which were being installed at
the time the inspector was on the section was a diatance of 24 feet.
The evidence shows in this case that a 14 Joy continuous-mining
machine was being used to produce coal; and ·that the distance from
the forwardmost bit on the Joy continuous-mining machine to the
controls is a distanc~ of 21-1/2 feet. If the measurement of 24 feet
is used as the distance which the machine was trammed beyond the last
permanent roof support, the controls of the machine would have been
out from under the supported roof a distance.of 'only 2-1/2 feet.
One of the company's witnesses testified that under that situation
the hand of the operator would have been.under unsupported roof
but not his body.
3.
The continuous-mining machine here involved was equipped
with a canopy so that the controls of the miner are under the canopy,
and the result is that, even if the operator's hands and arms were
beyond the last permanent roof support, the operator and his hands
and arms would have been under the canopy. Additionally, if the
continuous-mining machine had been advanced a distance of 8 feet
beyond the last row of permanent supports, the canopy would have
protected the operator from a possible roof fall.
4.
The roof-control plan is Exhibit 2 in this proceeding. That
plan provides oa page 4 that the maximum depth the continuous-m~ning
machine may be advanced beyond the last row of. permanent supports is
20 feet. Page 11 of Exhibit 2 provides in paragraph 3 that the operator of the continuous-mining machine shall not advance the controls
of such equipment inby the last row of roof bolts.
5.
The inspector's citation, which is Exhibit 1 in this proceeding; states that several mountain breaks existed in the face .
area. He testified, however, that he observed no mountain breaks in
the No. 3 entry where the mining machine advanced beyond the last
row of permanent supports •. One of the operator's witnesses testified
that he observed mountain·breaks in the entry adjacent to the No. 3
entry, but that he saw none in the No. 3 entry. The main roof and
innnediate roof in this mine are comprised of sandstone. The inspector
testified that, while he didn't think any roof was completely safe,
of the various types of innnediate roof that he encounters, that he
considered sandstone to be the least subject to falling parti~les
and hazardous conditions. The inspector was not aware of any:roof
falls which had occurred in this mine at the time he made his inspection. One of the operator's witnesses testified that no roof falls
had occurred. The inspector testified that the roof-bolting machine
operator and his helper had installed the proper number of safety
supports prior to connnencing bolting in the No. 3 entry.

1H41

3

6.
The chief financial officer of the Elkins Energy Corporation testified in this proceeding. His name is W. Jack Davis.
Mr. Davis testified that Elkins Energy has been showing a net loss
for a considerable period of time. In 1977 the company had a net
loss of $306,847 (Exh. D). In 1978, i t showed a net loss of
$2,274,925 (Exh. C). In 1979 the company went through some formal
bankruptcy proceedings. At that time another company by the name
of Sylvia Ann Coal Company acquired the stock of Elkins Energy and
began making a joint return with Elkins Energy, and in that 1979
return, Elkins ·Energy itself showed a loss of $36,000 and the joint
return showed a loss of $86,313 (Exh. B). Under the bankruptcy
provisions, the secured creditors started receiving payments in
September 1979, and those payments vary over different periods,
depending upon the decisions made in the bankruptcy proceeding. The
unsecured creditors, however, are to be paid off on a quarterly basis
over a 4-1/2-year period. In 1980 Elkins Energy showed a net income
of $200,752.24 (Exh. A). Some of that net income has been used
to make payments to unsecured creditors beginning on March 13, 1980,
and some more will be used to make a payment as of June 13, 1981.
The company's liabilities are $4,130,140.91 in excess of its assets
(Exh. E).
7.
Und~r the bankruptcy provisions, there are four operating
officers and an additional management person, namely, Mr. Davis, who
received from $25,000 to $30,000 a year in salary, but the bankruptcy
provisions control payments of funds out of the company's cash flow.
The company has a certain amount of flexibility so that it might
be able to pay a penalty of up to $500 without having to discharge
payment of the penalty under the provisions of payments to unsecured
creditors. Any amount over $500, and this is purely an estimate
by Mr. Davis, would have to be done on a quarterly basis over a
period of 4-1/2 years. Therefore, any large penalty that I might
assess in this proceeding would have to ~e paid in the same manner,
that is, on a quarterly basis.
8.
Elkins Energy Corporation, at the present time, is not producing any- coal because of the strike. If it were producing coal,
and assuming the strike ends and prod~ction resumes, the company
operates three different mines, the No. 6A Mine, the No. 10 Mine,
and the No. 12 Mine. The average production from all three mines
totals 35,000 tons per month, and the total employment, including
managerial personnel, is 125 employees. All of the company's coal is
sold under a contract with either Clinchf ield Coal Company or Flat Gap
Mining Company. The No. 6A Mine has an estimated life of 5 to 7 years.
The No. 10 Mine has an estimated life of 6 months, and the No. 12 Mine
has an estimated remaining life of from 10 to 15 years.
I believe that those are the primary findings of fact which I have
gleaned from the testimony given here today. I believe that the testimony supports a finding that a violation of section 75.200 occurred
because, even if we restrict the testimony to the personal observations

4
of the inspector, there is no doubt but that the evidence supports
the fact that the continuous-mining machine controls were advanced
·beyond the last row of permanent supports, which would be a violation of the provisions in the roof-control plan which I mentioned in
my findings above.
Having found that a violation occurred, it is necessary that I
assess a penalty. The Act does not permit a judge to find that,a
violation occurred and waive the assessment of a penalty. The size
of the company's business has been discussed in the findings of fact,
and they indicate that the company is a relatively small operator.
I did not include anything as to the criterion of history of previous
violations in my findings above because those previous vioiations are
set forth in Exhibit 3 in this proceeding and Exhibit 3 indicates that
the company has a history of only four previous violations for the
last 24 months preceding the occurrence of the violation cited in
this case.
One of those was a violation of section 75.200 which was cited
in February of 1980. It has been my practice over the years to
increase the penalty otherwise assessable under the other five criteria
if I find that an operator has violated on a prior occasion the same
section of the Act or regulations which is before me in any given
proceeding. Since there has been a previous violation of section
75.200, I find that whatever penalty is otherwise assessable should
be increased by $25 .under the criterion of history of previous
violations.
I made no reference in the eight·findings of fact set forth above
to the criterion of whether the operator demonstrated a good-faith
effort to achieve rapid compliance. The entries on Citation No. 687711
shows that it was issued at 9:45 a.m. by the inspector, and that the
violation was abated by 3:15 p.m. the same day. The evidence in this
case shows that the inspector waited until the No. 3 entry had been
completely bolted before he measured the distance from the last row
of permanent supports to the face, and he testified that he didn't even
write the citation until the area had been completely bolted. Consequently, at the time the inspector wrote the citation, the roof bolting
that needed to be done in this entry had already been completed.
The inspector said that roof bolting was only a portion of the
abatement that he required, the other portion being that when a violation of the roof-control plan occurs, the operator is required to
explain the roof-control plan to the crew so that they will know that
a violation occurred and will avoid similar oversights in the future.
The company's safety director, Mr. Donnie Short, explained the
roof-control plan about 3 o'clock to both the day shift, which was
leaving the mine, and to the oncoming shift, which was due to begin
working at 3:00 p.m. Consequently, the total abatement of the violation is based on the explanation of the roof-control plan by the
operator's safety director at approximately 3:00 p.m.

1643

5

It was speculated in this proceeding that the tramming of the
controls of the continuous-mining machine beyond the last row of
permanent supports was an act which was done by the second shift
which came to work at 3:00 p.m. Consequently, the inspector appropriately waited until both shifts had had the plan explained to them
before he abated the citation. I believe that those facts· support
a finding that the operator demonstrated a good-faith effort tQ
achieve rapid compliance, and that the penalty should neither be
increased nor decreased under the criterion of good-faith effort
to achieve rapid compliance.
The last findings of fact set forth above, that is, Nos. 7 and 8
show that the operator is currently carrying on its business under
provisions of the Bankruptcy Act and, consequently, can only pay penalties based on the provisions of the court's disposition of that filing
in bankruptcy. Since respondent has an outstanding obligation to pay
off both secured and unsecured creditors in a considerable a~ount,
I think it would be appropriate to find that large penalties would
have an adverse effect on the company's ability to continue paying
off its creditors and, therefore, any penalty assessed in this proceeding should take that criterion into consideration.
The remaining two criteria are negligence and gravity. Insofar
as negligence is concerned, the evidence supports a finding that there
was at least ordinary negligence because the continuous-mining machine's
controls were advanced farther than they should have been. Although
the roof-control plan, which is Exhibit No. 2 in this proceeding,
became effective only a few days before the citation was written,
Mr. McGinn stated in his closing remarks that the old roof-control
plan, which has a date of March 2, 1979, contained the same provisions that I used in finding that a violation of the roof-control plan
occurred. Consequently, the operator was aware of the provisions of
his roof-control plan, and we cannot say that the section foreman was
unaware of the fact that the controls of the continuous-mining machine
should not have been advanced beyond the last permanent roof supports.
As to the criterion of gravity, the evidence and the findings
of fact that I have already made show that the immediate roof was
sandstone which is less hazardous than some shales and other types
of immediate roofs. Also, fortunately, the continuous-mining machine
was equipped with a canopy which did have a safety factor built in
to it, if a person does go beyond permanent roof support.
Additionally, there is no evidence in the case to show that anyone
other than the operator of the continuous-mining machine went beyond
permanent roof support, and the operator of the roof-bolting machine
had installed the proper temporary supports before he began to install
the permanent supports. Consequently, we do not have any evidence
that a large number of people went beyond permanent sup'port in this
instance. Consequently, the gravity of the situation is not as great
as it might have been. Of course, as the.inspector pointed ou~, roofcontrol violations are the most serious ones in the coal mines because

1644

6

roof falls still are a primary contributor to death and serious
accidents in the mines. Therefore, none of them are to be taken
lightly.
By way of summary, since we have a situation in which the
company is already in bankruptcy, and one which involves a small
operator, and a situation where there was ordinary negligence,
and not a great degree of gravity, I believe that a penalty of $200
should be assessed, to which $25 should be added for the history of
previous violations, so that a penalty of $225 will be assessed
in this proceeding.
WHEREFORE, it is ordered:
Respondent, within 30 days from the date of this decision, shall pay
a civil penalty of $225.00 for the violation of 30 C.F.R. § 75.200 alleged
in Citation No. 687711 dated June 4, 1980.

~~-~'

Richard C. Steffey
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:

Leo J. McGinn, Trial Attorney, Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Robert T. Copeland, Esq., Attorney for Elkins Energy Corporation,
212 West Valley Street, P.O. Box 1036, Abingdon, VA 24210 (Certified Mail)

· 1645

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

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

v.

JUN 25 t98\

Civil Penal.ty Proceeding
Docket No. WEVA 80-614
A.O. No. 46-01283-03043F
Hampton No. 3 Mine

WESTMORELAND COAL COMPANY,
Respondent
DECISION AND ORDER
On June 24, 1981, this matter came on for a hearing on the parties'
motion to approve settlement of charges that the operator's faulty
pillaring practices in the No. 9 Right Section of the Hampton No. 3
Mine resulted in the deaths of a section foreman and an assistant mine
foreman. The settlement proposed is a reduction in the amount initially
assessed from $13,000 to $4,000.
The parties' prehearing submissions and the information adduced
at the settlement hearing showed that:
A.

The charge that the operator had engaged in partial
pillaring practices in violation of 30 C.F.R. 75.201-2(d)
was of doubtful validity because (1) the adverse roof
conditions and falls of roof in the 4th and 5th p_illars
in the third pillar line may have justified leaving
substantial portions of the outby wings (30 C.F.R.
75.201-2(e)), and because of (2) the inconclusive nature
of the testimony as to the size of the partial pillars,
if any, left .in the challenged pillar line.

B.

The charge that the operator violated its approved roof
control plan by failing to set trisets or cribs before
pulling the pushout stump in the No. 5 pillar in the fourth
pillar line (the scene of the accident) was clearly
established as the proximate cause of the roof fall that
killed the two foremen and endangered the lives of three
other miners. In mitigation, the operator showed (1:')
a disturbing lack of clarity (now corrected) in the roof
control plan, a deficiency for which MSHA shares responsibility, and (2) the institution of management controls
that will effectively preclude the exercise of bad judgment that led the foremen to risk their lives and those
of the contract miners.

lli4b

In the light of the foregoing, the parties proposed to amend their
motion so as to allocate $1,000 to the first violation and $3,000
to the second violation. Based on an independent evaluation and de novo
review of the circumstances the trial judge concurred and directed
that the motion to approve settlement be granted.
Accordingly, it is ORDERED that the motion to approve settlement,
as amended, be and hereby is GRANTED. It is FURTHER ORDERED that the
operator pay the amount of the settlement agreed upon, $4,000, on or
before Wednesday, July 15, 1981. and tha subject to payment the
captioned matter be DISMISSED.

Distribution:
David Street, Esq., U.S. Department of Labor, Office of the Solicitor,
3535 Market St., Philadelphia, PA 19104 (Certified Mail)
Robert Steinberg, Esq., Crowell & Moring, 1100 Connecticut Ave., NW,
Washington, DC 20036 (Certified Mail)

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

Phone (703) 756-6236

LESLIE COAL MINING COMPANY,
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

JUN 26 1111

Contests of Citations
Docket No. KENT 79-375-R
Citation No. 713366; 8/31/79
Docket No. KENT 79-376-R
Citation No. 715998;·9/5/79
Docket No. KENT 80-217-R
Citation No. 729889; 3/18/80
Leslie Mine

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
LESLIE COAL MINING.COMPANY,
Respondent

Civil Penalty Proceedings
Docket No. KENT 80-259
A/O No. 15-07082-02028S
Docket No. KENT 80-314
A/O No. 15-07082-03035
Leslie Mine
DECISION

Appearances:

John M. Stephens, Esq., Stephens, Combs & Page,
Pikeville, Kentucky, for Contestant-Respondent;
Darryl A. Stewart, Esq., Office of the Solicitor,
U.S. Department of Labor, for Respondent-Petitioner.

Before:

Judge Charles C. Moore, Jr.

These combined civil penalty and review proceedings were heard
February 24, 1981, in Prestonsburg, Kentucky. Two citations and a
withdrawal order alleging violations of 30 C.F.R. §75.200 are at issue. 1/
Per stipulations introduced at .the hearing, Leslie Mine is medium-sized,
producing 177,818 tons of coal annually, has a moderate prior history
consisting -of 235 violations during two and one-half years, and imposition of the maximum civil penalty will not adversely affect Contestant-.
Respondent's ["Contestant's"]. ability to remain in business.

1/ 30 C.F.R. §75.200 prescribes, in part, "[t]he roof and ribs of all
active underground roadways, travelways, and working places shall be
supported or otherwise controlled adequately to protect persons from
falls of the roof or ribs."

The first citation became the basis of a withdrawal orde~ five days
later. A second citation alleging a violation of §75.200·in ·a diffe.rent
section of the mine was issued by Inspector Oney, who had·issu,ed.the
withdrawal order.
Inspector Smith issued citation 713366 on August 31, 1979, during
an investigation of a non-fatal roof fall in the 009 working section of
the Leslie Mine. The roof fall, not at issue here, had occurred in the
third entry between Spads 971 and 999 (see Contestant's Exhibit ["Ex."] C-2).
The fall encompassed most of the entry between the crosscuts (Ir. 43-46).
The remaining portion of the entry had been timbered to ·prevent the fall
from spreading to a power center inby Spad 999 in the third entry •. '.!:../ A
power cable had been routed around the fall into the second entry and
back to the power center.
The inspector observed large cracks and cutters in the roof around
the fall (Tr. 11). 3/ Water was dripping and flowing from the roof in
large quantities, "like a faucet" (Tr. 14-15). Tbis roof is composed of
laminated or layered shale with additional parts of sandstone and
fossilized material (Tr. 15). As such, it is structurally weak and the
presence of dripping and flowing water increases the likelihood of roof
falls (Tr. 16). Ten roof falls had occurred in the Leslie Mine during
the five months before this citation was issued (Tr. 27, 152).. Metal
straps and four, five and six foot resin roof bolts supported the roof
and metal plates were also put up in some areas (Tr. 16, 17, 40, 173 and
Ex. C-6). It was stipulated that Contestant was following an approved
roof control plan when both citations and the order were issued and that
a violation of the plan is not alleged. Section 75.200 may be violated,
however, if roof 1.s inadequately. supported regardless of whether a plan
is being followed.
After observing these conditions, Inspector Smith issued a citation
pertaining to three areas near the fall. !±_/ The citation was to have
been abated five days later. Inspector Oney entered the area September 5,
1979, while conducting a regular inspection and observed cracks in the
roof and dripping water (Tr. 51). He saw no evidence of additional roof
support and issued withdrawal order 715998 intending to cover the same
area as the citation. The order differed from the citation, however, in
that it failed to include an area around Spad 999 that was included in
the citation, and was unclear with respect to the measurements of the

l.I "Inby" is a term of direction meaning toward the working face, an<;l
"outby" refers to the direction away from a working face. a dictionary.
of mining, mineral and related terms, Bureau of Mines, U.S. Department of
the Interior, 1968.
1/ The inspector. defined a "cutter" a:s a crack occurring where the roof
meets the ribs, indicating stress (Tr. 13).
!±_/ The first area was the crosscut between Spad 971 and 997; the second
was a section of roof in the second entry beginning 60 feet inby Spad 997
and extending 100 feet into the intersection; the tliird was a: section of
roof beginning at Spad 999 and extending outby 40 feet.

1B4B

area cited around Spad 997. An additional ambiguity in the citation's
language, carried over into the order, was not discovered until the
hearing. The first inspector had intended to cite the crosscut between
the second and third entries (between 997 and 971) but the citation
read, "80 feet to the left of Spad 997," which could have been interpreted to mean that part of the crosscut between the first and second
entries. This caused some confusion for Contestant as to·the proper
placement of cribs and timbers to abate"the citation. A witness for
Contestant testified that he first realized that some of the timbers and
cribs had been misplaced while accompanying the inspector who issued the
order. He requested that the compliance date be extended in order to
remedy the error but the inspector refused (Tr. 181). On redirect
examination, the inspector stated that he did not recall the witness
making such a request'(Tr. 185). The order was abated three months
later after cribs and timbers had been installed to the satisfaction of
the inspector.
The inspector gave several reasons for his opinion that the roof
was not adequately supported. As a roof control specialist, these were
the worst conditions he had ever seen (Tr. 14-15). A fall had recently
occcurred in the area of the citation as had ten roof falls at this mine
in the five months preceding issuance of the citation. Water flowing
from the roof posed a threat of electrical shock should a piece of wet
roof fall on the high voltage cable (Tr. 25). Although he admitted it
was possible to have sound roof despite the presence of large quantities
of water, the inspector felt that such was not the case here (Tr. 38~39).
Three witnesses for Contestant testified that the roof was adequately
supported before the citation was issued, and that the timlters and cribs
installed to abate the order had not taken weight since their installation
(Tr. 124-125,'144, 158-159, 166, 173-174). Two of those witnesses had
recently visited the area; the third had only spoken to miners who
regularly worked there (Tr. 124-125). Mr. Wooten, who.was Contestant's
safety director when the citation was issued (Tr. 165), testified that a
crack was discovered up in the roof when test holes were drilled in the
area in preparation for mining (Tr. 166). Contestant then began using
five and six foot bolts instead of four foot bolts, as required by the
roof control plan (Tr. 166).
.
In view of the fact that this was admittedly bad roof, that a roof
fall had just occurred and that Contestant did not prove to my satisfaction
that greater roof support was used in the cited area than had been used
in the fall area, I think the inspector was justified in issuing the
citation. It follows that since no action was taken to abate the citation
by September 5, 1979, the withdrawal order was also proper. Both the
citation and the order are affirmed.
While I disagree with Contestant's evaluation of its roof condition,
I find that Contestant knew of the conditions and did not consider the
area dangerous. Its degree of negligence was therefore small. As to
gravity it must be remembered that the inspector did not issue an imminent
danger order. A penalty of $300 will be assessed.

lll50

Citation 799889 was issued when Inspector Oney was conducting a
regular safety and health inspection in the 010 working section of the
Leslie Mine.and observed a vertical crack, one-half inch wide and 24
feet long, extending the length of the intersection between the entry
and the crosscut at Spad 1608 (Ex. C-3, Tr. 69). After speaking to the
roof bolting machine operator and using the "sound and vibration" method,
he also found a horizontal crack 48 inches up the roof (Tr. 75-77). 2_/ &_/
He saw that the cribs and timbers immediately outby the intersection had
taken weight (Tr. 69), so much so in fact that the wedges installed
between the timbers and the roof to insure a tight fit were "mashed
almost flat," (Tr. 77). Eight foot roof bolts were being installed (Tr.
90). Four, five, six and eight foot roof bolts and metal straps supported
the area (Tr. 117). Timbers and cribs had been installed in the second
entry outby Spad 1608 before the citation was issued. The entry was an
active coal haulage road when the citation was issued but is no longer
actively used (Tr. 102., Ex. C-3).
A witness for Contestant, Mr. Vaughan, testified that he visited
the area after the citation was issued and found only one crib had taken
weight (Tr. 127). Two timbers were so loose that he was able to knock
them out with a small mason hammer (Tr. 116).
The inspector and one witness for Contestant testified that cribs
and timbers in the area have taken weight since the citation was abated
(~r. 97, 159-160).
Upon returning to the area after the citation was
abated, the inspector observed that more timbers had been added and that
others had broken so that it was difficult to tell which timbers had
been installed to abate the citation, and whether they had taken weight,
in order to determine whether or not the additional -support mandated in
the citation was needed (Tr. 97). One witness for Contestant testified,
however, that the area was timbered off pursuant to a company policy
requiring escapeways to be timbered regardless of roof conditions in
order to prevent falls (Tr. 127). This testimony was refuted by another
witness for Contestant who testified that the cited area was not an
escapeway; that the witness was "off one overcast" (Tr. ·162). ]_/
Although the existence of the vertical crack was well established
at the hearing there was some ques.tion as to whether MSHA proved the
existence of the ho.rizontal crack. All of the Contestant's witnesses,

'if

"Sound and vibration" testing is an accepted method for detecting
horizontal cracks. It consists of placing one hand on the roof then
tapping the roof with a hammer. In this case the inspector found that
the roof "sounded heavy" indicating weight on the roof bolts, suppor.ting
his conclusion that a horizontal crack existed (Tr. 77). Peabody Coal·
Company, 2 FMSHRC 987 (April 1980) and Itmann Coal Company, 1 FMSHRC 1591
(October 1979).
&_I A vertical crack is a crack in the roof visible to the naked eye.
A horizontal crack is a separation of strata up in the roof not visible
to the naked eye. Its existence is established by using the sound and
vibration method, above, or by drilling test holes.
7/ An "overcast" is "[aJn enclosed airway to permit one air current
to pass over another one without interruption." a dictionary of mining
mineral and related terms, supra.

l. ~) 5 l

however, acknowledged that detection of a horizontal crack was the
reason longer bolts were installed (Tr. 121, 122, 134, 159, 173-174).
The real dispute was whether the roof was adequately supported when the
citation was issued.
The inspector felt more support was needed and that the intersection
would have fallen had not additional support been installed (Tr. 81).
Contestant, on the other hand, was of the opinion that the area was
adequately supported when the citation was issued (Tr. 159-160).
When experts disagree as to the .safety of a particular situation it
presents a difficult question. The Government has the burden or proof,
but I believe a close question should be decided in favor of safety. I
hold that on balance, the Secretary has shown that the intersection
needed more roof support. I accordingly affirm the citation.
As to the penalty, I find a low degree of negligence. As to gravity,
I take into consideration the fact that no imminent danger order was
issued. A penalty of $100 will be assessed.
ORDER
Contestant is ordered to pay to MSHA, within 30 days, a penalty of
$400.

~sf1lz,rwA
Charles C. Moore, Jr.
Administrative Law Judge
· Distribution:
John M. Stephens, Esq., Stephens, Combs & Page, P.• O. Drawer 31,
Pikeville, KY 41501 (Certified Mail)
Darryl A. Stewart, Esq., U.S. Department of Labor, Office of the
Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203
(Certified Mail)
Mr. Robert Carter, President, United Mine Workers of America,
District 30, Williamson Road, Pikeville, KY 41501 (Certified Mail)

1652

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

Civil Penalty Proceeding

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

Docket No. CENT 81-40
A/O No. 03-01401-03008V

v.

Bradley Stephens #1 Mine

AEARTH DEVELOPMENT, INC.,
Respondent
DECISION
Appearances:

Eloise Vellucci, Esq., Office of the Solicitor, U.S.
Department of Labor, Dallas, Texas, on behalf of
Petitioner
Michael Walker, President, Aearth Development, Inc.,
Little Rock, Arkansas, for Respondent.

Before:

Judge Stewart

The above-captioned case is a civil penalty proceeding brought
pursuant to section 110 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 801 et~ (hereinafter, the Act). The hearing in this
matter was held on May 13, 1981, in Fort Smith, Arkansas.
Two orders pursuant to section 104(d)(l) of the Act were at issue in
this proceeding. Both orders were issued by Inspector Les·ter Coleman· on
July 8, 1980, for alleged violations of 30 CFR 77.1710(e). Section
77.1710(e) requires that each employee working in a surface coal mine
shall be required to wear suitable protective footwear. In both instances,
it was established that mine management knew that these two employees were
not wearing protective footwear. Michael Walker asserted at the hearing
that management had informed both employees that protective footwear was
required. Although the Respondent's employees were expected to pay for the
shoes themselves, Respondent had arranged for credit to be extended to those
employees who could not afford to pay for the shoes immediately. It is also
evident that management permitted these employees to continue work even
though they had not obtained safety shoes. Respondent notified its employees
of the requirement that they wear protective footwear, but did not enforce
the requirement. In so doing, Respondent violated Section 77.1710(e).

Respondent demonstrated a moderate degree of ?egligence in permitting
these two employees to work without protective footwear. Management knew
that the men were not wearing safety shoes but, as the result of misinformation provided by a state inspector, believed that hard-toed shoes·were
required by law only if the employee was working under hazardous conditions.
Furthermore, both individuals had been apprised of the requirement that they
wear protective footwear and provision had been made for them to procure it.
The inspector issued Order No. 793090 upon observing a laborer wo.rking
in the pit while wearing only ordinary leather shoes. The laborer was
cleaning coal with a shovel. The spoil bank was located immediately adjacent
to the pit. The spoil was comprised of loose material and contained debris
which ranged in size up to two or thr_ee feet in diameter. The inspector
was concerned that material would fall from the spoil bank into the pit and
strike the laborer. If a large enough piece of material struck the laborer
on the foot, it could have caused bruises or broken bones.
The testimony of Michael_Walker, president of Aearth, established that
the height of the spoi1 bank above the floor of the pit was approximately
39 feet. The pit itself was estimated by the inspector to have been
approximately 65 feet wide and 150 feet long. The laborer was working
approximately 35 feet away from the edge of the spoil at the time he.was
observed by the inspector. The inspector believed that the laborer was
close enough to be struck by debris falling from the spoil pile. Moreover,
the laborer's responsibilities also brought him into the area of the pit
immediately adjacent to the spoil bank.
The inspector issued Order No. 793091 after he observed a laborer
wearing non-steel toed boots while assisting in the repair of a front-end
loader. The individual involved was a trainee equipment-oiler. When
observed, the laborc.r was helping to remove a turbocharge-r: from the loader.
The turbocharger was approximately 18 inches by 24 inches and weighed 35 to
40 pounds. Michael Walker admitted that if it had dropped on the laborer's
foot, it would have caused inJury. He suggested, however, that the laborer
would not have lifted the turbocharger himself but would have used a boom
to do so, thereby reducing the likelihood that it would have fallen onto
his foot.
At the outset of the hearing, the parties stipulated that the information
presented on the conference worksheet concerning Respondent's history of
violations and size was accurate. The parties agreed that Respondent's
history of violations was minimal anµ that its mine was small. Michael
Walker admitted that the ability of Respondent tb continue in business
would not be adversely affected by any penalty assessed herein.

1()54

1--:.

The parties proposed at the conclusion of the hearing to settle this
case for $100 per violation. The assessment proposed for each violation
had been $300. On the basis of the testimony given and evidence adduced
at the hearing, the settlement was approved at that time and Respondent
was ordered to pay the sum.of $200 within 20 days of the hearing.
The approval of settlement· is hereby AEFIRMED.
ORDER
IT IS ORDERED that, if it has not yet done so, Respondent pay the sum
of $200 to Petitioner within 30 days of the date of this decision.

Forrest E. Stewart
Law Judge

Administra~ive

Distribution:
Eloise Vellucci, Esq., Office of the Solicitor, U.S. Department of
Labor, 555 Griffin Square Building, Suite 501, Dallas, TX 75202 (Certified
Mail)
Michael Walker, President, Aearth Development, Inc., P. 0. Box 3514,
Little Rock, AR 72203 (Certified Mail)

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

JUN 29 1981
Application for Review

UNITED STATES FUEL COMPANY,
· Applicant

v.

Docket No. WEST. 79-81-R
Citation No. 789508; 4/10/79

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

King No. 5 Mine
Respondent
Civil Penalty Proceeding

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

Docket No. WEST 80-62
A.O. No. 42-01389-03011 V

v.
King No. 5 Mine
UNITED STATES FUEL COMPANY,
Respondent
DECISION
Appearances:

Richard H. Nebeker, Esq., Callister, Greene & Nebeker,
Salt Lake City, Utah, for United States Fuel Company;
Edward H. Fitch, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for the Mine
Safety and Health Administration.

Before:

Judge Cook

I.

Procedural Background

On May 7, 1979, United States Fuel Company (U.S. Fuel) filed an application for review in Docket No. WEST 79-81-R pursuant to section 105(d) 1/ of
the Federal Mine Saf-ety and Health Act of 1977, 30 u.s.c. § 801 et seq:(Supp. III 1979) (1977 Mine Act), requesting that Citation No. 789508 be

·!:../

Section 105(d) provides as follows:
"If, within 30 days of receipt thereof, an operator of a coal or other
mine notifies the Secretary that he intends to contest the issuance or
modification of an order issued under section 104, or citation or a notification of proposed assessment of a penalty issued under subsection (a) or (b)
of this section, or the reasonableness of the length of abatement time fixed

1656

declared invalid. The citation was issued at U.S. Fuel's King No. 5 Mine on
April 10, 1979, pursuant to section 104(d)(l) 2/ of the 1977 Mine Act and
contains allegations (1) that a condition or practice in violation of mandatory standard 30 C.F.R. § 75.316 existed in the mine; (2) that the violation
was caused by U.S. Fuel's unwarrantable failure to comply with such mandatory
standard; and (3) that the violation was of such nature as could significantly
and substantially contribute to the cause and effect of a mine safety or
health hazard. U.S. Fuel's application for review alleged, inter alia,
(1) that no violation of the cited mandatory standard existed; (2) that the
condition or practice set forth in- ·the citation was not caused by U.S. Fuel's
unwarrantable failure to comply with the 1977 Mine Act; and (3) that the
condition or practice set forth .in the citation was not of a nature which
fn. 1 (continued)
in a citation or modification thereof issued under section 104, or any miner
or representative of miners notifies the Secretary of an intention to contest
the issuance, modification, or termination of any order issued under section
104, or the reasonableness of the length of time set for abatement by a citation or modification thereof issued under section 104, the Secretary shall
immediately advise the Commission of such notification, and the Commission
shall afford an opportunity for a hearing (in accordance with section 554 of
title 5, United States Code, but without regard to subsection (a)(3) of such
section), and thereafter shall issue an order, based on findings of fact,
affirming, modifying, or vacating the Secretary's citation, order or proposed
penalty, or directing other appropriate relief. Such .order shall become
final 30 days after its issuance. The rules of procedure prescribed by the
Commission shall provide affected miners or representatives of affected miners
an opportunity to participate as parties to hearings under this section. The
Commission shall take whatever action is necessary to expedite proceedings
for hearing appeals of orders issued under section 104."
2/ Section 104(d)(l) provides as follows:
"If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory
health or safety standard, and if he also finds that, while the conditions
created by such violation do not cause imminent danger, such violation is of
such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard, and if he finds
such violation to be caused by an unwarrantable failure of such operator to
comply with such mandatory health or safety standards, he shall include such
finding in any citation given to the operator under this Act.· If, during the
same inspection or any subsequent inspection of such mine within 90 days
after the issuance of such citation, an authorized representative of the
Secretary finds another violation of any mandatory health or safety standard
and finds such violation to be also caused by an unwarrantable failure of
such operator to so comply, he shall forthwith issue an order requiring the
operator to cause all persons in the area affected by such violation, except
those persons referred to in subsection (c) to be withdrawn from, and to be
prohibited from entering, such area until an authorized representative of the
Secretary determines that such violation has been abated."

165~

:ould significantly and substantially contribute to the cause and effect of anine safety or health hazard. An answer was filed by the Mine Safety and
iealth Administration (MSHA) on May 25, 1979.
Various notices of hearing were issued which ultimately scheduled the
proceeding in Docket No. WEST 79-81-R for hearing on the merits on November 7,
ind 8, 1979, in Salt Lake City, Utah. Such hearing was held as scheduled with
representatives of both parties present and participating. The parties made
:losing arguments following the presentation of the evidence.
On November 21, 1979, U.S. Fuel filed a motion styled "Motion to Re-open
the Hearing, or in the Alternative to Have Admitted as Evidence, the Affiiavits of Walter L. Wright, General Superintendent, and Bruce Sherman, the
i.finers' Representative, Attached Hereto." The same day, MSHA fi~ed a statenent in opposition thereto. On December 4, 1979, an order was issued granting
J.S. Fuel's motion to reopen the hearing for the purpose of presenting the
testimony of Messrs. Walter L. Wright and Bruce Sherman. The order contained
i notice of hearing scheduling the hearing to reconvene on February 4, 1980,
ln Salt Lake City, Utah. Thereafter, an order was issued continuing the
1earing to 2 p.m., on June 2, 1980, in Salt Lake City, Utah.
On November 26, 1979, MSHA filed a proposal for a penalty in Docket No.
11EST 80-62 pursuant to section llO(a) of the 1977 Mine Act alleging one
rlolation of 30 C.F.R. § 75.316, as set forth in 104(d)(l) Citation No.
789508, issued on April 10, 1979.
U.S. Fuel had not filed an answer to the proposal as of May 16, 1980.
[t should be noted that the Rules of Procedure of the Federal Mine Safety
ind Health Review Commission (Commission) require a party against whom a
)enalty is sought to file and serve an answer within 30 days after service
,f a copy of the proposal on the party. 29 C.F.R. § 2700.28 (1979). As a
result of such failure to file an answer, Chief Administrative Law Judge
James A. Broderick issued an order on May 16, 1980, requiring U.S. Fuel to
;how cause on or before May 30, 1980, as to (1) why it should not be deemed
to have waived its right to a hearing and contest of the proposed penalty,
ind (2) why the proposed order of assessment should not be summarily entered
iS the final order of the Commission and collection procedures instituted.
)n May 22, 1980, the Commission's docket office received a telephone communi:ation from counsel for U.S. Fuel pertaining to the order to show cause, and,
>n May 23, 1980, the case was assigned to the undersigned Administrative Law
Judge.
Thereafter, a telephone conference was held during which the undersigned
Law Judge and represent~tives of the parties participated.
[t was agreed that both cases would be submitted for decision based upon the
~ecord developed in Docket No. WEST 79-81-R on November 7 and 8, 1979, in
>alt Lake City, Utah, and based upon a stipulation to be filed by the parties.
~dditionally, a schedule was set for the filing of briefs.
As a result of
:he telephone conference, an order was issued on May 29, 1980, cancelling the
June 2, 1980, hearing.
~dministrative

lo5H

Both the stipulations and U.S. ·Fuel's brief were filed on June 17, 1980.
U.S. Fuel filed its answer to the proposal for a penalty on June 20, 1980.
"MSHA filed a brief on July 9, 1980.
After the briefs were filed, it was decided to postpone the issuance of
a decision in these cases until such time as the Commission issued its decision in Secretary of Labor, MSHA v. Cement Division, National Gypsum Company,
Docket No. VINC 79-154-PM, addressing the issue as to when a violation is of
such nature as could significantly and substantially contribute to the cause
and effect of a mine safety or health hazard, as that criterion is used in
section 104 of the 1977 Mine Act. 3/ Chief Administrative Law Juqge James A.
Broderick issued his decision in the National Gypsum case on December 26,
1979, wherein he applied the rule of law announced by the Interior Board of
Mine Operations Appeals in Alabama By-Products Corporation, 7 IBMA 85, 94,
83 I.D. 574, 1 BNA MSHC 1484, 1976-1977 CCH OSHD par. 21,298 (1976). See,
1 FMSHRC 2115 (1979). The Connnission granted the mine operator's petition for
discretionary review on January 31, 1980, and issued its decision on April 7,
1981. See, Secretary of Labor, MSHA v. Cement Divison, National Gypsum
Company~ FMSHRC 822, 2 BNA MSHC 1201, 1981 CCR OSHD par. 25,294 (1981).
II.

III.

Violation Charged in Docket No. WEST 80-62
Ci ta tiOI). No.

Date

30 C.F.R. Standard

789508

April 10, 1979

75.316

Witnesses and Exhibits

3/ An article appearing in 4 Mine Regulation & Productivity Report No. 25
(New York: McGraw-Hill, Inc.) (July 4, 1980) at pg. 2 stated, in part, as
follows:
"The Mine Safety and Health Review Commission has expressed dissatisfaction with the legal precedents that federal inspectors follow to decide
whether operators' violations are significant and substantial (S&S). In a
public meeting, the commission. voted 3 to 1 (Commissioner Al Lawson dissented)
to overturn a decision of Administrative Law Judge James Broderick that upheld
nine S&S findings attached to citations issued to National Gypsum (MR, 1/11).
"Broderick indicated that he was bound to follow the test for S&S violations laid out by the old Interior Board of Mine Operations Appeals (IBMA) in
its 1976 Alabama By-Products decision. Operating under that test, which says
that all violations could be S&S except technical ones or ones posing only a
remote chance of injury, federal coal mine inspectors have found about 61% of
coal violations to be S&S, while metal/nonmetal mine inspectors have found
about 91% of violations to be S&S, according to figures of the Mine Safety
& Health Administration.
"What will remain unanswered until the commission issues a final opinion
is how far MSHRC will move in the direction of the IBMA's pre-Alabama
By-Products definition of an S&S violation as one posing a risk of serious
bodily harm or death."

165B

A.

Witnesses

U.S. Fuel called as its witnesses Mr. Eddie Edwards, the continuous
miner operator; Mr. William Russell Allred, the miner's helper; Mr. Jose
Carlos Salas, the shuttle car operator; Mr. Buddy Gines, the section foreman;
Mr. Robert s. Martinez, a company safety inspector on April 10, 1979, and a
section foreman at the time of the hearing; and Mr. Louis J. Mele, the
<lirector of safety and training.
Both U.S. Fuel and MSHA called Federal mlne inspector Ted R. Milovich
as a witness.
B.

Exhibits

1. MSHA introduced the following exhibits in evidence during the
hearing:
§

M-1 is a typed copy of Citation No. 789508; April 10, 1979, 30 C.F.R.
75.316.

M-2 contains copies of Inspector Milovich's handwritten notes pertaining
to M-1.
M-2A is a typed copy of M-2.
M-3 is a copy of the ventilation system and methane and dust control
plan in effect at the King No. 5 Mine on April 10, 1979.
M-4 is a drawing prepared by Inspector Milovich.
M-5 is a copy of the inspector's statement pertaining to M-1.
2. U.S. Fuel dia not introduce any exhibits in evidence during the
hearing.
3. The parties filed stipulations on June 17, 1980, stipulating the
admission in evidence of (a) the November 15, 1979, affidavit of Bruce
Sherman; (b) an attached Exhibit "A," which is a copy of U.S. Fuel's controlling company information report; and (c) an attached Exhibit "B,." which
is a computer printout compiled by the Directorate of Assessments setting
forth the history of previous violations at U.S. Fuel's King No. 4 and King
No. 5 Mines for which assessments have been paid, beginning January 1, 1970,
and ending May 29, 1980.
IV.

Issues

A. The following issues are presented in the above-captioned application
for review proceeding:

1B60

·

1. Whether the condition described in 104(d)(l) Citation No. 789508
constitutes a violation of mandatory standard 30 C.F.R. § 75.316.
2. If the condition described in 104(d)(l) Citation No. 789508 consti-.
tutes a violation of mandatory standard 30 C.F.R. § 75.316, then whether
such violation was of such nature as could significantly and substantially
contribute to the cause and effect of a mine safety or health hazard, and
whether such violation was caused by the mine operator's unwarrantable
failure to comply with mandatory standard 30 C.F.R. § 75.316.
B. Two basic issues are involved in the above-captioned civil penalty
proceeding: (1) .did a violation of mandatory standard 30 C.F.R. § 75.316
occur, and (2) what amount should be assessed as a penalty if a violation
is found to have occurred? In determining the amount of civil penalty that
should be assessed for a violation, the law requires that six factors be
considered: (1) history of previous violations; (2) appropriateness of the
penalty to the size of the operator's business; (3) whether the operator was
negligent; (4) effect of the penalty on the operator's ability to continue
in business; (5) gravity of the violation; and (6) the operator's good faith
in attempting rapid abatement of the violation.
V.

Opinion and Findings of Fact

A.

Stipulations

1. During the hearing on November 7, 1979, the parties·stipulated that
the King No. 5 Mine is involved in interstate commerce (Tr. 7).
2. The parties filed stipulations on June 17, 1980, stating, in part,
as follows:
·[a] The above two docket numbers concern the same
identical citation, Number 789508 issued on April 10, 1979,
by MSHA Inspector Ted R. Milovich.
[b] A hearing was held in Docket No. WEST 79-81-R
in Salt Lake City, Utah, on November 7 and 8, 1979, before
Administrative Law Judge John F. Cook.
[c] The parties stipulate that the two cases should be
consolidated and the record should be closed with the
inclusion of the Affidavit of Mr. Bruce Sherman being
admitted as part of the record. The Secretary specifically
states that he is not opposed to the addition of Mr. Sherman's
affidavit dated November 15, 1979, but further that he does
not attest to the accuracy or truth of said Affidavit.

ll16J

[d] The parties stipulate that the attached Exhibit "A"
com.titut-es a copy of U.S. Fuel's Controlling Company
Info.·mation Report which indicates a total production of
746,298 tons of coal was mined in 1979.
[e] The parties stipulate that the attached Exhibit "B" ·
constitutes a printout of all paid violations by the company
and ma; be used in determining· the company's history or [sic]
prior violations.
[f] The payment of any penalty in this matter will not
affect U.S. Fuel Company's ability to remain in business.
[g]

The violation was abated in normal good faith.

[h] The parties will file short briefs in this matter
with U.S. Fuel's brief to be mailed on or by June 16, 1980,
and MSHA's brief will be mailed on or by July 9, 1980.
B.

Occurrence of Violation

Federal mine inspector Ted R. Milovich issued section 104(d)(l) Citation
No. 789508 at U.S. Fuel's King No. 5 Mine during the course of his April 10,
1979, inspection. The citation alleges a violation of mandatory standard
30 C.F.R. § 75.316 in that "[tlhe ventilation, methane and dust control plan
was not being complied with in the No. 1 right entry of the first south
section. The line brattice was 28 feet outby the point of deepest penetration and coal was being cut with a Joy continuous mining machine. No methane
[was] detected. The plan allows 15 feet." (Exh. M-1). The applicable provision of the King No. 5 Mine's approved ventilation system and methane and
·dust control plan required that 11 [l]ine brattice or tubing will be installed
at a distance no greater than 15 feet from the area of deepest penetration to
which any portion of the face has been advanced in working faces from which
coal is being cut, mined, or loaded." (Fourth and fifth pages of Exh. M-3,
Tr. 45-46). A parenthetical statement following the requirement states that
"15 feet is needed to allow proper maneuvering of the continuous miner. The
King Mine has never in 70 years of mining, generated Methane of detectable
quantity in any working place. 11 (Fifth page of Exh. M-3)~ Mandatory s':andard
30 C.F.R. § 75.316 requires that:
A ventilation system and methane and dust co.ntrol plan
and revisions thereof suitable to the conditions and the
mining system of the coal mine and approved by the Secretary
shall be adopted by the operator and set out.in printed form
on or before June 29, 1970. The plan shall show the type
and location of mechanical ventilation equipment installed
and operated in the mine, such additional or improved equipment as the Secretary may require, the quantity and velocity
of air reaching each working face, and such other information
as the Secretary may require. Such plan shall be reviewed
by the operator and the Secretary at least every 6 months.

1662

The applicable portion of the regulation requires the mine operator to
adopt a ventilation system and methane and dust control plan approved by
the Secretary. The mine operator violates 30 C.F.R. § 75.316 by failing to
comply with the approved plan. Peabody Coal Company, 8 IBMA 121, 84 I.D. 469,
1 BNA MSHC 1573, 1977-1978 CCH OSHD par. 22,111 (1977); Zeigler Coal Company,
4 IBMA 30, 82 I.D. 36, 1 BNA MSHC 1256, 1974-1975 CCH OSHD par. 19,237 (1975),
aff'd sub nom. Zeigler Coal Company v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976).
The evidence presented by MSHA and U.S. Fuel paint starkly different
pictures of the facts surrounding the issuance of the citation. In the
absence of these two patently inconsistent versions of the events, the
findings of material fact in these cases could be concisely stated without a
prolonged discussion and analysis of the testimony of the individual witnesses.
However, because the two versions are patently inconsistent, it is considered
appropriate to discuss the testimony of the various witnesses in some detail.
Federal mine inspector Ted R. Milovich was accompanied on his inspection
by Mr. Robert Martinez, the company safety inspector, and Mr. Bruce .Sherman,
a representative of the miners (Tr. 34). They entered the section and pro-ceeded toward the face areas by walking inby through the belt entry (Tr. 34,
43). As the inspection party approached the feeder breaker, the inspector
observed a shuttle car, operated by Mr. Jose Carlos Salas, dumping a load of
coal (Tr. 34-36). Being a somewhat suspicious person, 4/ the inspector
quickened his pace to follow the shuttle car into the w0rking place (Tr. 34).
Following the shuttle car required the inspector to make a right turn into
a crosscut after passing the feeder breaker, and to thereafter make a left
turn into the No. 1 right entry. This entry was adjacent to the belt entry
(See,~·.£•, Exh. M-4).
Messrs. Martinez and Sherman followed the same route
as the inspector, but, because the inspector had quickened his pace, they
arrived at the face area of the No. 1 right entry shortly after the inspector
arrived there (See ~·.B_•, Tr. 301, 312).
Upon reaching the face area, the inspector made a series of observations
which resulted in the issuance of the subject citation. A box cut on the
right side of the entry was the point of deepest penetration to which the
face had been advanced (Tr. 38). The evidence presented d~ring the hearing
establishes that the box cut was 5 feet deep. (See, ~·.B_•, Exh. M-4). Face
ventilation was being provided through the use of line brattice which had
been installed on the left side of the entry (Tr. 38). The line l~attice was
attached to timbers, or posts, which appear to have been installed for that
purpose (See,~·.£·, Exh. M-4). According to the inspector, Mr. Eddie Edwards,
the continuous miner operator, was cutting coal from the left side of the face
Inspector Milovich testified on this point as follows:
"As he was leaving I stepped up my pace to follow this shuttle car into
the working place, because I am somewhat of a suspicious person. I suspect
that when a shuttle car operator observes an inspector they go up to the face
and they say, 'the inspector is coming,' and things can change rapidly."
(Tr. 34).

!!./

1U63

and loading it aboard Mr. Salas' shuttle car, which was positioned under the
continuous miner's tail (Tr. 35-36, 96, 370, 373). The inspector testified
that he observed sparks being generated from the left side of the cutting
wheel when the continuous miner's ripper head made contact with the roof ·
(Tr. 30, 346, 347, 370, 373). Visual observation enabled the inspector to
determine immediately that the line brattice was not being maintained to
within 15 feet of the point of deepest penetration. The inspector .testified
that he knew immediately that the 15 foot requirement had been violated
because the continuous miner's cab was inby the end of the line brattice (Tr •
. 364, 369). The cab is approximately 20 feet from the cutting bits on the
front of the machine (Tr. 121).
The inspector exchanged comments with members of the crew, and requested
that nothing be moved or disturbed until such time as he discussed the matter
with mine management (Tr. 36-37). Members of mine management were summoned
to the scene and arrived shortly thereafter.
The continuous miner was backed out of the face area after management·
personnel were accorded the opportunity to observe the condition (Tr. 63) •
.The inspector testified that the line brattice was attached to and terminated
at the fourth post outby the face (fourth post). The _third post outby the
face (third post) was standing, but no line brattice was attached to it. The
first post outby the .face (first post) and the second post outby the face
·(second post) were lying on the ground on the left side of the entry. The
cap pieces for the two downed posts were on the right rib siding (Exh. M-4,
Tr, 57-62). The inspector's testimony reveals that the four posts and the
line brattice were in that same position and condition when he first entered
the face area and observed the continuous miner cutting coal from the left
side of the face (Tr. 364, 373-374). His testimony further reveals that no
line brattice was lying on the ground or was otherwise immediately available
which could have been extended inby the fourth post (Tr. 50-51, 62 4 360, 362,
367, 373, 381-382, 384-386). In fact; the inspector testified that. he asked
the company personnel to extend the line brattice on the fourth post to its
maximum extension, and .that when they did so he discovered only approximately
16 or 17 inches of line brattice which could be extended inby that post
(Tr. 39-50).
A series of measurements were made using the fourth post as·the point
of reference. These·measurements revealed that the line brattice terminated
at a point approximately 28 feet outby the point of deepest penetration to
which any portion of the face had been advanced, i.e., 13 feet, or almost a
full cut, more than permitted by the approved ventilation system and methane
and dust control plan (Tr. 37-38, 46-47, Exh. M-4). The inspector testified
that none of the company personnel present expressed the view that the
measurement was being made using the wrong post as the point of reference,
or stated that additional line brattice was present either on the ground or
under the miner which should have been accounted for in the measurement.
(See !:_•_g_., Tr. 43, 362, 374-375, 379).

1664

The inspector further testified tpat the citation was abated by two men
who brought in additional brattice material, erected the two fallen posts
and thereafter extended·the line brattice (Tr. 50-51, 64, 376).
In summary, the testimony of Inspector Milovich maintains that actual
mining and loading activities were being performed at the face of the No. 1
right entry at a time when the line brattice terminated at a point approximately 28 feet outby the point of deepest penetration to which any portion
of that face had been.advanced. His testimony further maintains that there
was no additional line brattice in the area which could have been used to
comply with the applicable provision of the approved ventilation system and
methane and dust control plan.
U.S. Fuel maintains that Inspector Milovich's version of the events surrounding the issuance of Citation No. 789508 is patently erroneous. Briefly
stated, U.S. Fuel maintains that the crew began work on the left side of the
No. 1 right entry by cleaning up some sloughage along the left rib. According to U.S. Fuel, Mr. Salas had transported one shutt!e car load of this
material to the feeder breaker and had just returned for a second load when
the inspector arrived in the face area. According to U.S. Fuel, the contin~
uous miner was pushing.sloughage into the face when Inspector Milovich
·arrived. U.S. Fuel maintains that the first post was knocked down by the
continuous miner while maneuvering to clean up the sloughage, and that it was
the only post that had been knocked down prior to the time that the inspector
had the continuous miner operator back the machine out of the area along the
left rib. U.S. Fuel maintains that this post was knocked down while the crew
was working on the first shuttle car load of sloughage from the left side of
the entry. It is U.S. Fuel's position that the second post was knocked down
when ~he inspector had the miner operator back the machine out of the area
along the left rib. Additionally, U.S. Fuel maintains that the line brattice
was properly installed to within 15 feet of the point of deepest penetration
at all relevant times, and that the line brattice ~as accid~ntly knocked down,
along with the post, while maneuvering the continuous miner to clean up the
sloughage.
U.S. Fuel employed the testimony of six witnesses and the affidavit of
Mr. Bruce Sherman to set forth its version of the events surrounding the
issuance of Citation No. 789508. However, their evidence contains numerous
inconsistencies, especially in nine key _areas, which reflect adversely on
their credibility. Specifically, their evidence is inconsistent insofar as:
(1) when the posts were installed on the left side of the entry; (2) identifying the post to which the line brattice was attached; (3) when the two
posts were knocked down; (4) what activities were occurr;J.ng .in the face area
when the inspector arrived there; (5) the location of the\ line brattice after
it was knocked down and what the various witnesses did or 'did not.say to the
inspector concerning the location and condition of the lin~' orattice;
.
(6) whether the witnesses saw measurements being made; (7) wqether additional
brattice material was brought in to abate the violation; (8) ~hether the
inspector and Mr. Eddie Edwards, the continuous miner operator, engaged in
a conversation at the kitchen; and (9) whether Mr. Buddy Gines, the section

,.

,)
1 ''61

foreman, was in the face area shortly prior to the inspector's arrival there.
Eight of these areas are discussed in detail below. The ninth, whether
Mr. Gines was in the face area shortly prior to the inspector's arrival, will
be discussed in a subsequent portion of this decision.
The first area of inconsistency is of a somewhat minor nature and
relates to when the line posts were installed on the left 3ide of the entry.
Mr. Edwards, the continuous miner operator, affirmat~vely testified that he
installed those line posts (Tr. 127-128). Mr. William Russell Allred, the
miner's helper, indicated that at least one of the four posts at issue was
standing up from the previous shift (Tr. 160).
The second area of inconsistency relates to identifying the inby most
post to which the lin~ brattice was attached immediately prior to the time
that such line brattice was supposedly knocked down by the continuous miner.
Mr. Edwards testified that the line brattice was attached up to and including
the first post outby the face (Tr. 116, 123, 130-131, 133-134). Mr. Allred
testified that the line brattice was attached only up to and including the
second post outby the face prior to Mr. Edward's beginning his activities on
the left side of the entry (Tr. 162, 163, 165, 192-193). Mr. Salas, the
shuttle car operator, testified that the line brattice was attached up to
and including the second post outby the face, and that the brattice came off
of the first post outby the face when the miner operator knocked the first
·timber down on his way going in (Tr. 202, 215-216). The affidavit of
Mr. Sherman states, in part, that he "observed that one timber (1st outby
from the face) was knocked out and the brattice was still wrapped around it."
This statement indicates that Mr. Sherman maintains that he observed evidence
that the line brattice had been attached up to and including ·the first post
outby the face. The testimony of Mr. Buddy Gines, the section foreman,
indicates that he maintains that the line brattice was attached up to and
including the first post outby the face (Tr. 271-272).
The third area of inconsistency relates to when the first and second
posts were knocked down. Messrs. Edwards and Salas maintained that the first
post was toppled by the continuous miner while maneuvering to clean up the
sloughage, and that the second post was knocked down when the inspector had
the miner operator back the machine out of the area along the left rib (Tr.
115, 123, 202, 205, 207). However, Mr. Edwards testified·at a later point
that he did not know whether he toppled one post while going in and the other
post while going out, or both while going in or both while going out (Tr.
129-130). Mr. Allred testified at one point in his testimony that it was
necessary to topple the first post in order to clean up the material present
(Tr. 162). However, he later contradicted himself by testifying that he did
not remember when Mr. Edwards knocked the posts down, that he did not even
remember Mr. Edwards knocking them down, and that he really did not know
whether Mr. Edwards knocked them down while going in or while pulling out
(Tr. 173-174). Of even greater significance on this point is the testimony
of Mr. Louis J. Mele, U.S. Fuel's director of safety and training. Mr. Mele
was one of the company officials summoned to the face area of the No. 1 right
entry by Mr. Martinez. Mr. Mele testified that he observed the two posts

166b

lying on the ground when he arrived in the face area. He further testified
that he did not observe the two posts in thei~ entirety because they were
partially covered with coal (Tr. 397-398). His testimony that the two posts
were partially covered with coal is inconsistent with the position of other
witnesses for U.S. Fuel that the two posts, and particularly the second post,
had just been knocked down. Mr. Mele's testimony that the two posts were
partially buried is consistent only with Inspector Milovich's assertion that
. the two posts were down when he arrived in the face area and observed actual
mining activity in progress, because some type of activity would have been
required in order to partially bury the two posts.

The fourth area of inconsistency relates to what activities were
occurring in the face area when Inspector Milovich arrived there. Mr. Edwards
testified that he was cleaning sloughage from along the left rib, using the
head of the miner to break up some large pieces that had sloughed down from
the left rib, and loading the material aboard the shuttle car which was
positioned under the continuous miner's tail (Tr. 114-115, 146-147, 151-152).
On direct examination, he testified as follows:
I backed the miner up, I moved over, and I was moving
in, and there was sloughage from the rib that had fallen
down, and I was continuing to clean that sloughage up with
my machine. In order to get that sloughage cleaned up -there is chuncks in there as big as [the bench in the
courtroom where the hearing was held] and you have to start
the cutter head to cut the coal to let it go up to the
conveyor into the [shutt le car]. That's what I was doing.
I was cutting up the sloughage; I entered the face, and then
there was a big chunk right there; I started to cut it, and
when I turned around to see how full the [shuttle car] was,
and I seen Mr. Milovich coming down, and then I shut the
machine off and I started back, and that's when he wrote up
the citation.
1

(Tr. 114-115).
Mr. Allred's testimony on this point, although not as detailed, indi·cates that the crew was in the process of loading the shuttle car when the
inspector arrived (Tr. 162). Mr. Salas' testimony, however, contradicts the
testimony of Messrs. Edwards and Allred because he maintained that no loading
was in progress. Mr. Salas testified as follows on direct examination:

Q.

Now, was your shuttle car in the position approxithat is shown on Exhibit M-4 at the time Mr. Milovich
arrived?

mat~ly

A.

No.

I was back a ways.

I was behind the tail.

Q. When you say you were behind the tail were you ready
to receive coal or was there something that would still be
necessary to do before the miner pumped coal into your buggy?

A. Before I go in the tail has to be up, but his tail
was down at the time and he was breaking up some gob in there.

Q. So he has a rear boom which is shown as -that projection from the miner over the shuttle car, and that boom had
not been raised sufficiently for you to get underneath at
the time that he was breaking up these lumps?
A.

No, not at the time.

(Tr. 198-199).
The fifth area of inconsistency relates to the location of the line
brattice after it was knocked down and what the various witnesses pid or did
not say to the inspector concerning the location and condition of the line
brattice. Generally, the operator's witnesses and the affiant maintain that
the toppled line brattice was on the floor of the entry, and that an argument
ensued over the subject of mining without proper ventilation.
Mr. Sherman's affidavit maintains that the toppled line brattice was
plainly visible.
Mr. Edwards testified at one point that the line brattice was on the
ground underneath the continuous miner, and that that was why the inspector
did not see it (Tr. 116-117). However, he later testified that the line
brattice was on the ground when the measurements were made and that it was
visible to anyone taking the trouble to walk around the left side of the
continuous miner (Tr. 154)°, and that he did not know why the inspector did
not see it (Tr. 143~144). As relates to any conversations with the inspector,
Mr. Edwards testified that Inspector Milovich came in, stopped, shook his
head and asked him "what the hell" he, Edwards, though he was doing (Tr. 124).
Curiously, for a man who maintains that the line brattice had been up;
Mr. Edwards never told the inspector (1) that the line brattice had been in
place, (2) that it had just been knocked down by the continuous miner, or
(3) that the line brattice was lying on the ground (Tr. 117, 129-130,
139-140). In fact, he testified that he did not respond to any of the inspector's direct questions concerning why the line brattice was not up (Tr. 117).
At one point he testified that he did not know why he failed to mention the
presence of the line brattice to the inspector upon learning that a ventilation violation had occurred (Tr. 152). He thereafter testified that he
failed to mention it because he was shaken by the experience (Tr. 152-153).
It appears that Mr. Allred was suffering from a poor memory insofar as
this, the most cr'bcial aspect of U.S. Fuel's case, was concerned. He testified that he did not know where the line brattice was (Tr. 171); that he did
not see the brattice cloth when the continuous miner was pulled back and the
measurements were taken (Tr. 172); and that he did not recall seeing any
brattice cloth tucked underneath the machine (Tr. 173). As noted previously,
Mr. Allred maintained at various points in his testimony that the line
brattice was attached up to and including the second post outby the face.

1668

Yet he testified, in the following passage, that he never brought this matter
to the inspector's attention simply because he never says much to Inspector
Milovich:
JUDGE COOK: If that was true, didn't you say something
to the Inspector as to what you thought the situation was?
THE WITNESS: Myself, no.
never did. Never did.

I don't say very much to him;

(Tr. 188).
Mr. Salas testified that he ~aw the line brattice on the ground after
the inspector's arrival on the section and before the continuous miner was
backed out of the face (Tr. 203-204). He further testified that the line
brattice was on the ground after the continuous miner was backed out of the
face, but he could not remember whether i t was visib;L~ on the left side or
whether it was underneath the continuous miner (Tr. 205). However, he later
testified that he never saw the line brattice on the floor after the miner
pulled out (Tr. 212). Additionally, Mr. Salas testified that he did not say
a word to the inspector concerning the violation, and indicated that he did
not look for the brattice cloth after the section was shut dow or while the
argument was in progress (Tr. 206, 217) even though he could have easily seen
the brattice cloth from his vantage point in front of the continuous miner
(Tr. 216-219). In fact, he claimed that he was unable to remember the topic
of the argument (Tr. 219). The implausibility of and apparent contradictions
contained in his testimony are amply illustrated by the following excerpts
from his cross-examination:

Q. Did you ever walk in front of the brattice
I mean
in front of the miner? Did you ever stand in fr~nt of the
miner?
A.

Yes.

Q.

When did you ever do that?

A.

After everybody was there.

Q. Everybody was there and you were standing in front
of the miner?
A.

They was just arguing.

Q.

Everybody was arguing.

A.

I didn't look around for it.

Where was the brattice cloth?

1o6B

Q. Oh, Jesus. The bratti~e cloth was hanging on the
second, third and.fourth posts when you were coming in; it
falls off the second post when Mr. Edwards moves his machine
in?
A.

Right.

Q. It falls off the third post and the second post falls
doW11 when he backs the machine back, and then you are standing
in front of he miner, with.everybody standing around· arguing,
and you don't know where the brattice cloth is?
A. I didn't know it was a violation before or I would
have looked for it.
(Tr. 216-217).

*

*

*

*

*

*

*

You remember [the condition and location of the brattice
prior to th~ time the machine was backed out of the face] but
you don't remember when you were standing in front of the
miner? Did it disappear?

A.

I wasn't looking for it.

Q.

What were they arguing about?

A. I can't remember.
were the ones.

It. was none of my business.

They

Q. But you don't remember? That's what you are· telling
me, you really don't remember where the·brattice·cloth was at
the point in time that you were standing in front of the
machine? Would you answer verbally for the record?
A.

No.

(Tr. 219).
Mr. Buddy Gines was summoned to the face area and arrived there prior to
the arrival of Mr. Mele's party. Mr. Gines testified that an·argument ensued
upon his arrival during which the inspector "got on me pretty bad for mining
without air" (Tr. 237). Mr. Gines testified that the inspector kept saying
that it was his responsibility to make sure that the crew did not cut past
their ventilation; and that he got the impression that Inspector Milovich
thought the crew had mined some considerable time with the posts and line
brattice down (Tr. 237-238). Mr. Gines further testified that he attempted
to explain to Inspector Milovich that the posts and line brattice wer~ there,
but that the inspector just kept getting on him about his responsibilities

16l0

and would not let him explain the matter (Tr. 238). This·angered Mr. Gines
and he therefore simply terminated the discussion with the inspector and took
a seat along·the right rib. He testified that he remained seated there during all subsequent activities and that he did not assist in the taking of
measurements or in anything else (Tr. 237-238, 252, 256, 262).
According to Mr. Gines, the line brattice and timbers were present (Tr.
271). Yet curiously, he did not brief Mr. Mele and his party about the
situation before they talked to the inspector. In fact, he did not even
speak to them when they arrived (Tr. 282). Such conduct is inconsistent
with Mr. Gines position that the crew had not mined past their ventilation.
Logically, one would expect Mr. Gines to explain the situation to Mr. Mele's
party and point out to them that the inspector's accusation was unfounded,
that the inspector would not let him proffer an explanation, and that the
inspector appeared unwilling to listen to reason. Instead, he said absolutely
nothing to them.
Additionally, Mr. Gines did not affirmatively testify that someone told
the inspector that measurements were being made in the wrong location. He
testified only that he thought he heard someone tell the inspector that the
measurement was being made ·in the wrong spot (Tr. 255).
Mr. Martinez testified that when he arrived at the.face, the first post
was lying on the ground and the line brattice was attached to the third post
and was angling down to the second post (Tr. 302-303). Mr. Martinez testified
that he assisted in making the 28 foot measurement (Tr. 304). It does not
appear that Mr. Martinez had any discussion with the inspector concerning the
fact that the posts had just been knocked down (Tr. 303). However, he testified on direct examination that other people made comments to the inspector
as relates to the point of reference used in making the measurement:

Q. You helped take that measurement? Did anyone from
the crew or supervisory personnel state to Mr. Milovich that
he was measuring from the wrong poi'nt?
A.

Yes, Sir.

Q.

Do you know who said that?

A. There were several comments on the measurement. The
supervisory, Andy Barnett and the. crew members appeared to be
-- as the brattice.was angled the[y) didn't believe it was
where it should be taken at. He was taking it from where it
was intact all the way to the roof, the way the measurement
was made.
(Tr. 304-305).
How~ver, he appeared to become evasive when cross-examined. on this point,
maintaining that he did not really remember what was said:

1671

Q. Did Mr. Mele or Mr. Barnett take the lead in advancing the company's position at the time? Was either one of
them more dominant than the other in talking to Milovich?
A.

Not that I recall.

Q.

Both of them were talking to him at the same time?

A.

People were talking.

Q.

But you don't remember what was said?

A.

Not really.

Q. Can you give me the flavor of what was said, what is
your recollection of what was said? What were the arguments
about?
A. People were arguing about the angle of the brattice
after we had backed out, talking about where the measurements
were taken. I really can't recall what they was talking. I
was going about my job.
(Tr. 331-332).
Mr. Mele testified that the line brattice was probably on the fourth
post on an angle when-he arrived in the face area (Tr. 390). He testified
that he saw the brattice cloth on the ground, but he had no idea as to how
such observation squared with Mr. Edwards' testimony that the brattice cloth
was under the continuous miner (Tr. 397).
It was apparent to Mr. Mele that Inspector Milovich had already taken
some measurements, because when the two men first met the inspector stated
that "the violation was 28 feet" (Tr. 390-391). Mr. Mele responded with the
statement that it did not appear that far (Tr. 390-391). Thereafter,
Mr. Mele assisted the inspector in making measurements. However, Mr. Mele
indicated at several points in his testimony that nobody mentioned to
Inspector Milovich that he was taking the measurements in. the wrong location.
He testified that he had no discussion with the inspector as to whether the
measurement should be made from where the line brattice was actually hung on
the post, or whether it should account for any of the additional brattice
that was sloping down (Tr. 391). He further testified that while he was
assisting in the measurement, nobody indicated that the measurement was being
made in the wrong spot (Tr. 399-400). His testimony on this point flatly
contradicts Mr. Martinez testimony on direct examination that he overheard
supervisors or crew members tell the inspector that the measurements were
being made in the wrong location.
In short, the reliable evidence shows that no statements were made to
Inspector Milovich indicating either that the line brattice had just been

167:!

knocked down, or that the measurements should have been made by taking irito
account additional line brattice that U.S. Fuel maintains was present. The
failure of U.S. Fuel's personnel to make such statements to the inspector
tends to prove that Inspector Milovich gave an accurate portayal of the
conditions existing at the face of the No. 1 right entry. The failure of
U.S. Fuel's personnel to point out such key facts to the inspector is conduct which is inconsistent with the position advanced by U.S. Fuel's witness' and affiant. The alternative would require the acceptance of an absurd
proposition in which discussions take place concerning mining without proper
ventilation, and measurements are made to determine how far the line brattice
terminates from the point of deepest penetration to which any port~on of the
face has been advanced, and yet nobody bothers to point out the crucial facts
necessary to avoid the issuance of a citation. Additionally, U.S. Fuel's
evidence contains numerous inconsistencies as to the position and location of
.the brattice cloth that it maintains had just been knocked down.
The sixth area of inconsistency concerns whether the witnesses saw
measurements being made. The inconsistency in this area is confined to the
testimony of Mr. Edwards.
Briefly stated, measurements were taken in the following fashion: The
first measurement was made by the inspector prior to the arrival of
Mr. Mele's party. He threw his tape measure, which had a nut on the end,
into the face and obtained a reading of approximately 28 feet (Tr. 37-38,
390-391). Inspector Milovich informed Mr. Mele of the reading when the
latter arrived. Mr. Mele responded that the distance did not appear that far
(Tr. 390-391). Company personnel assisted the inspector in taking another
set of measurements, with Mr. Mele holding the tape at the face. Once again,
a reading of approximately 28 feet was obtained (Tr. 37-38, 304, 317, 394).
At one point during cross-examination, Mr. Edwards denied that he saw
measurements being made:

Q. Now, did you watch any of the measurements going on?
Did you see the Inspector throw his tape up into the face with
a nut on the end of it and read out about twenty-eight feet?
A. I didn't see nothing like that. I wasn't there. I
wasn't paying any attention. All I know is that he started
to write out the citation.
(Tr. 122).
However, he contradicted himself at a later point in his cross-examination:

Q.

Did you see the Inspector measure the area?

A.

Yes, I seen him measure it.

Q.

Did you look at the tape at all?

A.

No, I didn't.

Q.

He measured it twice when you were there?

A.

Yes, I know he measured it.

Q.

Do you remember seeing him measure it twice?

A.

Yes.

Q. You saw him throw it up once by himself and then he
had somebody else walk up to the face at the roof support~
A.

Yes.

Q.

Who did he have walk up to the face?

A.

Lou Mele.

Q.

Who?

A.

Lou Mele.

(Tr. 137-138).

(Emphasis added).

The seventh area of inconsistency relates to whether additional brattice
cloth was brought in to abate the violation. The inspector testified that
the violation was abated by two men who brought in and installed additional
line brattice (Tr. 50-51, 64, 376). U.S. Fuel maintains, however, that the
violation was abated by reinstalling the line brattice which ..had fallen on
the ground, and that additional brattice cloth was not brought in for this
purpose. The most probative evidence adduced. )>y U.S. Fuel. in support ·of its
position 5/ is the affidavit of Mr. Sherman which states, in part, that: "We
rehung the brattice that had fallen off the timbers using the the [sic]
brattice laying on the ground along the rib line and some wrapped around the
5/ The testimony of Messrs. Edwards, Gines, Martinez and.Mele is less than
conclusive on this point. Mr. Edwards testified that he did not see additional brattice cloth brought in to abate the citation (Tr. 125), and that
nobody brought in extra brattice cloth (Tr. 141). However, the evidence
presented indicates that Mr. Edwards was in no position to make a personal,
firsthand observation of the abatement procedures because he was at the
kitchen, and not the face, when abatement occurred. Mr. Gines testified only
that he did not observe anybody bring in additional brattice cloth to abate
the citation (Tr. 257). Mr. Martinez testified only that he did not know
whether additional brattice cloth was brought in or, indeed, whether such
action was necessary (Tr. 310). Mr. Mele testified only that to his knowledge new brattice cloth was not brought in to abate the citation (Tr. 398).

1G7 ':t

timber. There was approximately 30 feet of the line curtain laying there."
However, Mr. .Allred gave testimony during cross"""examination which supports
the testimony of Inspector Milovich. Mr. Allred's testimony on this point is
as follows:

Q.

Okay. Where was the brattice cloth that was
connected to the three posts that were inby point "C"
[on Exhi bi.t M-4] ?
A.

I don't know.

Q.

Did you see any brattice cloth there?

A.

Did I see any?

Q.

Yes.

A.

After we backed up?

Q.

Yes.

A. No, I don't recall what happened to it. Somebody
else come in and fixed the place up. I don't know who did it.
I don't know why they went back out to brattice. I do know
the brattice was up to the farthest roofbolt post, but I am
the miner helper and I did put it out there.

Q. You have just told me several thi~gs: [The testimony
is omitted as relates to the first two topics identified.]
Three, you told me that somebody went out and got new
brattice cloth and came back in. Right?
A.

Right.

Q.

Did you see that hung?

A. No. If I remember right, I think we went to dinner
and had somebody else do the hanging up and measuring. I
can't remember for sure what happened there.

Q.

But you do remember somebody brought new brattice

cloth in?
A. No, I don't remember that. I think somebody told me
somebody brought some brattice cloth in. I didn't see no.body
bringing no brattice in. (Tr. 171-172).
The eighth area of inconsistency concerns whether Mr. Edwards and
Inspector Milovich conversed at the kitchen. According to Inspector

Milovich, a conversation did occur there during which Mr. Edwards once again
requested the .inspector to overlook what he had found (Tr. 376-377). ~/
Mr. Edwards denied ever making such statements at any time (Tr. 125-126),
and, in fact, maintained that he had had no conversations at all with the
inspector in the kitchen area (Tr. 196). Mr. Salas, however, testified that
the two men did converse in the kitchen area, but appeared to imply that they
simply reminisced about "old times" (Tr. 210). He testified that he was
unable to remember whether Mr. Edwards requested the inspector to overlook
the violation (Tr. 211). Additionally, Mr. Allred testified that the two men
engaged in a conversation in the kitchen area, but claimed that he was unable
to remember whether Mr. Edwards made the request (Tr. 178-179). However,
Mr. Allred's testimony does reveal that Mr. Allred discussed the violation
with the inspector at that time (Tr. 187).
In summary, Mr. Edwards maintained that he had no conversation with the
inspector in the kitchen area, while Messrs. Salas and Allred maintain that
the two men did converse there. The two positions are inconsistent.
Mr. Allred's testimony further indicates that the violation was discussed
with the inspector in the kitchen area. Inspector Milovich's testimony as to
the subject matter of his conversation with Mr. Edwards is considered
accurate.
In view of the foregoing, I conclude that the testimony of Federal mine
inspector Ted R. Milovich accurately sets forth the conditions existing in
the face area of the No. 1 right entry when the citation was issued, and that
U.S. Fuel has not produced credible evidence to rebut his testimony. J_/
6/ According to the inspector, the request was initially made in the face
area of the No. 1 right entry moments after he caught Mr. Edwards mining
without the required line brattice (Tr. 359).
It appears that Messrs. Edwards, Allred, Salas and Gines may have·had
a motive to be less than candid in their testimony. According to Inspector
Milovich, Mr. Walter Wright, the mine superintendent, arrived at the face
with Mr. Mele. Inspector Milovich testified that Mr. Wright appeared
particularly surprised at and quite upset with the condition, and that
Mr. Wright stated that he would fire everybody on the section (Tr. 37,
51-52, 378). Mr. Edwards testified that Mr. Wright was not present (Tr.
134). Messrs. Allred, Gines and Mart~nez testified either that they did not
remember seeing Mr. Wright or that they could not recall whether Mr. Wright
was present (Tr. 185-186, 253, 265, 331). There is, however, evidence in
the record which tends to corroborate the inspector's testimony that
Mr. Wright was present and that he made the statement attributed to him.
Mr. Mele testified that Mr. Wright could have been present, although
he was not certain (Tr. 388-389). Yet, Mr. Mele's testimony indicates that
the statement is characteristic of Mr. Wright. According to Mr. Mele:
"He said that many times when we had such violations. I heard that
several times, but I'm not too sure he was in there that day. I've heard
him say that many times when I talked to him about violations, 'We are ·going
to fire the boss; we are going to fire the crew.' That's just something that
he -- that is one of his -- we have never done it yet." (Tr. 398-399).

Zf

167h

Accordingly, it is found that a preponderance of the evidence establishes a
violation of mandatory standard 30 C.F.R. § 75.316. Actual mining and loading operations.were underway in the face area of the No. 1 right entry of the
King No. 5 Mine's first south section, and the line brattice terminated at a
point approximately 28 feet outby the point of deepest penetration to which
any portion of the face had been advanced. This condition violated the
provision .of the approved ventilation system and methane. and dust control
plan which required the line brattice or tubing to be installed at a distance
no greater.than 15 feet from the area of deepest penetration to which any
portion of the face has been advanced in working faces from which coal is
being cut, mined, or loaded.
C.

Negligence of the Operator

The facts presented in these cases reveal that as of April 10, 1979,
U.S. Fuel should have been more cognizant than usual of the need to maintain
good ventilation because the King No. 5 Mine had experienced a series of
three frictional coal dust ignitions during the recent past. The three ignitions occurred on March 21, March 23, and April 5, 1979, in another section
of the mine located approximately 2,600 or 2,700 feet from the section
involved in these proceedings (Tr. 14-15, Exh. M-4). 8/ Yet, the evidence
shows that the line brattice terminated at a point 28-feet outby the point of
deepest penetration to which any portion of the face of the No. 1 right entry
had been advanced while coal was being cut, mined or loaded, i.e., 13 feet,
or almost a full cut, more than the distance permitted by the-approved ventilation system .and methane and dust control plan (Exh. M-3, Tr. 46-47).
Under the plan, 15 feet is a full cut (Tr. 46-47, Exh. M-3). The findings
of fact set forth previously in this decision show that a substantial amount
of mining and loading had occurred without the required line brattice
installed. The only remaining question is whether U.S. Fuel's supervisory
personnel knew or should have known that the condition existed. The evidence,
as set forth below, shows that the section foreman had actual knowledge of
the condition and failed to· take corrective action.
As noted previously, the inspector quickened his pace to follow
Mr. Salas' shuttle car into the working place. As he went through the crosscut into the No. 1 right entry, he observed three miner's lights in the face
fn. 7 (continued)
Mr. Gines testified that he did not remember seeing Mr. Wright, and that
he did not hear Mr. Wright say that the whole crew should be fired (Tr. 253).
However, he testified that a union man told him later that he had heard that
Mr. Wright was going to fire him.
Finally, Inspector Milovich's testimony is in accord with statements
contained in his contemporaneous handwritten notes. The notes, written while
underground (Tr. 95), record Mr. Wright's presence and the statement that he
"would fire everyone on the section." (Exhs. M-2, M-2A).
8/ Counsel for MSHA indicated during the hearing that the three prior coal
dust ignitions were flash, self-extinguishing situations, and not explosions
(Tr. 106).

area (See, Exh. M-4). One of the three individuals had a lighted flame
safety lamp (Tr •. 34-35). Mr. Salas, the shuttle car operator, was not one
of the three men observed at the face because he was still driving the
shuttle car into the section when the observation was made (Tr. 44). A series
of observations and conversations enabled the inspector to determine that
Mr. Gines, the section foreman, was the individual in the face area with the
lighted flame safety lamp.
Shortly after the inspector observed the three lights, he and Mr. Gines
passed each other at a point approximately 175 feet from the face while walking down the No. 1 right entry. The inspector was walking inby and Mr. Gine~
was walking outby (Tr. 34-35, 71). The inspector did not actually see
Mr. Gines leave the face area because it appears that the shuttle car
obstructed his view at the crucial point in time (Tr. 45). However, Mr. Gines
was carrying a flame safety lamp when he and the inspector passed each other
(Tr. 34-36). Additionally, there were only two people present at the face,
discounting Mr. Salas, when the inspector arrived there. Neither of the two
men had a flame safety lamp. An unlighted flame safety lamp was inside the
continuous miner (Tr. 36, 45).
It appears that Inspector Milovich wanted to confirm his belief that
Mr. Gines had been in the face area, i.e., that Mr. Gines had been in a position to actually see the violation. After he stopped the mining activity,
he asked Mr. Allred where Mr. Gines was (Tr. 78). Mr. Allred stated that
Mr. Gines had just left (Tr. 36-37). When Mr. Gines returned to the face
area, the inspector asked him whether he had just left the face area.
Mr. Gines responded in the affirmative, stating that he had left "a little
while ago." The inspector followed up his question by asking Mr. Gines
whether he had seen how far the.line brattice terminated from the point of
deepest penetration. Mr. Gines answered by stating that it "didn't look that
far to me" (Tr. 37, 77). The inspector thereupon reached the conclusion .that
Mr. Gines, a supervisory employee of U.S. Fuel, had seen the violation, and,
accordingly, that the violation was caused by an unwarrantable failure to
comply with mandatory standard 30 C.F.R. § 75.316 (Tr. 35, 77).
U.S. Fuel's evidence was directed toward disproving both that Mr. Gines
was in the face area shortly before the inspector arrived there, and that
Mr. Gines had stated that the line brattice had not appeared that far back
when he was in the area a short time earlier. However, U.S. Fuel's witnesses
are not considered credible on these points.
Messrs. Allred and Edwards gave testimony which, if believed, would last
place Mr. Gines in the area before activities began on the left side of the
No. 1 entry (Tr. 155, 162, 167-170). Their testimony is inconsistent with
that of Messrs. Salas and Gines. The testimony of Messrs. Salas and Gines
places Mr. Gines in the vicinity of the face moments before the inspector's
arrival at the face, a much later point in time than that testified to by
Messrs. Edwards and Allred. Specifically, Mr. Salas had already taken one
load of material from the left side of the entry and had just returned to
the face area to pick up another load when the inspector arrived there. Yet,

lll7H

/

(
{

Mr. Salas specifically recalled seeing Mr. Gines in the No. 1 right entry
while driving the shuttle car toward. the face (Tr. 201). In fact, Mr. Gi.nes
admitted passing the inspector in the No. 1 right entry (Tr. 235-236).-.
Additionally, Mr. Gines contradicted Mr. Allred's testimony on a crucial
point. Mr. Gines testified that he had just finished speaking to Mr •. 'Allred,
who was straightening the cable on the continuous miner, before passing the
inspector (Tr. 234-255). Mr. Allred confirmed talking to 'Mr. Gines while
straightening the cable, but indicated that the conversation occurred before
activities began on the left side of the entry (Tr. 167-170).
Furthermore, part of U.S. Fuel's evidence tends to confirm Inspector
Milovich' s account. Mr. Gines, by his own admission, places himself itt the
vicinity of the face at the relevant time. Mr. Allred confirms telling the
inspector that Mr. Gines had "just left" the area (Tr. 167).
In view of these considerations' I find that Inspector Milovich correctly
deduced that Mr. Gines had just left the face area of the No. 1 right entry.
I further find that Mr. Gines admitted to the inspector that he had observed
the violative condition, but attempted to exculpate himself by maintaining
that "it didn't look that far" when he was last at the face a few minutes
earlier. Additionally, the evidence shows that Mr. Gines failed to take corrective action. His knowledge and his failure to act are imputable ·to U.S.
Fuel. See, ~·~·, Nacco Mining Company, 3 FMSHRC 848, 2 BNA MSHC 1272, 1981
CCH OSHD par. 25,330 (1981).
In view of the recent history of frictional coal dust ignitions at the
King No. 5 Mine, U.S. Fuel was under an affirmative obligation to be even
more cognizant than usual of the need to maintain proper ventilation. This
obligation was clearly not met. A substantial amount of mining and loading
was performed without complying with.the cited provision of the approved
ventilation system and methane and dust control plan. The section foreman
had actual knowledge of the violative condition and fa1led.to take corrective
action. The violation was readily visible (See, Tr. 121, 364, 369). Accordingly, it is ·found that U.S. Fuel demonstrated gross negligenc~.
D.

Unwarrantable Failure Criterion

The subject 104(d)(l) citation contains the allegation that th~ cited
violation was caused by the mine operator's unwarrantable failure to comply
with mandatory standard 30 C.F.R. § 75.316. A violation of a mandatory
health or safety standard is caused by an unwarrantable failure to comply
where "the operator involved has failed to abate the conditions or practices
constituting such violation, conditions or practices the operator knew or
should have known existed or which it failed to abate because of a lack of
due diligence, or because of indifference or lack of reasonable care."
Zeigler Coal Company, 7 IBMA 280,, 295-296, 84 I.D. 127, 1 BNA MSHC 1518,
1977-1978 CCH OSHD par. 21,676 (1977).
The findings of fact-and the discussion set forth in Part V(C) of this
decision clearly show that U.S. Fuel failed to abate a violative condition

ll>7B

that it knew or should known existed because of a lack of due diligen~e, or
because of indifference or lack of reasonable care. Accordingly, it is found
that the violation was caused by U.S. Fuel's unwarrantable failure to comply
with mandatory standard 30 C.F.R. § 75.316.
·
E.

Significant and Substantial Criterion

The citation contains the allegation that the violation was of such
nature as could. significantly and substantially contribute to the cause and
effect of a mine safety or health hazard. In National Gypsum Company,
3 FMSHRC 822, 2 BNA MSHC 1201, 1981 CCH OSHD par. 25,294 (1981), the
Commission held "that· a violation is of such nature as could significantly
and substantially contribute to the cause and effect of a mine safety or
health hazard if, based upon 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." 3 FMSHRC at
825. Additionally, the Commission stated that "[a]lthough the [1977 Mine
Act] does not define the key terms 'hazard' or 'significantly and substantially,' in this context we understand the word 'hazard' to denote a measure
of danger to safet.y or health, and that a violation 'significantly and substantially' contributes to the cause and effect of a hazard if the violation
could be a major cause of a danger to safety or health. In other words, the
contribution to cause and effect must be significant and substantial."
3 FMSHRC at 827. (Footnote omitted.) The particular facts surrounding the
violation reveal the following:
As a general matter, the concentration of ·float coal dust in suspension
is reduced if the proper amount of air and water is delivered to the face.
Float coal dust is a potential fuel for an ignition or explosion. Proper
ventilation reduces, but does not completely eliminate, the possibility of
an ignition (Tr. 16, 18-19).
The King No. 5 Mine is a relatively new mine. It is close to the surface
and has a large fan. There is adequate air in the mine, if it is properly
directed (Tr. 33). The inspector found 8,500 feet of air going over the continuous miner, and the plan required only 6,000 feet of air (Tr. 22). However, the inspector was of the opinion that the violation was of such nature
as could significantly and substantially contribute to the cause and effect
of a nµ.ne safety or health hazard because air will naturally follow the
shortest, most direct route into the return. With the line brattice installed
so far from the face, very little air would be ventilating the face because it
would be following the shortest route out the return. Therefore, there would
be a possibility that the velocity would not be as great at the face (Tr. 53).
A methane test was made and no methane was detected. Previous samples
collected for analysis had indicated that the mine did not liberate methane
(Tr. 54-55). However, an ignition source for float coal dust was clearly
present. Rock was being cut and was generating sparks and heat (Exh. M-5,

1H80

Tr. 30, 346-347, 370, 373). The injury resulting from or contemplated by
the occurrence of an ignition or explosion could reasonably be expected to
be serious.
In view of the foregoing, I find that the violation could have been a
major cause of a danger to safety or health. The particular facts surrounding the violation show the existence of a reasonable likelihood that the
hazard contributed to would result in an injury or an illness of a reasonably
serious nature. Accordingly, I conclude that the violation was of such nature
as could significantly and substantially contribute to the cause and effect
of a mine safety.or health hazard.
F.

Gravity of the Violation

The findings of fact set forth in Part V(E) of -this decision show that
the violation was serious.
G.

Good Faith in Attemptin& Rapid Abatement

The citation was issued at approxitqately 10:25 a.m.,.on April 10, 1979.
Abatement was due by 11:05. a.m. that same day. The citation was terminated
within the time set for abatement (Exh •..M-1). The parties stipulated that
the violation was abated in normal good faith (June 17, 1980, stipulations).
H.

Size of the Operator's Business

The parties stipulated that U.S. Fuel mined 746,298 tons of coal in
1979. U.S. Fuel's controlling company information report reveals that
496,078 tons of that coal was mined at the King No. 4 Mine, and that the
remaining 250,220 tons was mined at the King No. 5 Mine (June 17, 1980,
stipulations).
I.

History of Previous Violations

On June 17, 1980, the parties filed a computer printout prepared by the
Directorate of Assessments setting forth the history of previous violations
at the King No. 4 and King No. 5 Mines, beginning January 1, 1970, and ending
May 29, 1980. The parties stipulated that such computer printout may be used
in determining U.S. Fuel's history of previous violations.
Only those paid assessments for violations charged prior to April 10,
1979, may be properly considered in determining u.s Fuel's history of previous violations. See Peggs Run Coal Company, 5 IBMA 144, 82 I.D. 445,
1 BNA MSHC 1343, 1975-1976 CCH OSHD par. 20,001 (1975). The computer printout
reveals that U.S. Fuel had paid assessments for the time period beginning
January 1, 1970, and ending April 9, 1979, as follows:

1681

Mandatory Standards

Mine

All §

King No. 4

1277

57, ($2,500)

King No. 5

37

1 ($30)

1314

58 ($2,500)

Totals
(Note:
J.

§

75.316 (highest fine)

All figures are approximations).

Effect of a Civil Penalty on the Operator's Ability to Remain in Business

The parties stipulated that the payment of any penalty in this matter
will not affect U.S.· Fuel's ability to remain in business (June 17, 1980,
stipulations).
VI.

Conclusions of Law

1. United States Fuel Company and its King No. 5 Mine have been subject
to the provisions of the 1977 Mine Act at all times relevant to these
proceedings.
2. Under the 1977 Mine Act, the Administrative Law Judge has jurisdiction over the subject matter of, and the parties to, these proceedings.
3. Federal mine inspector Ted R. Milovich was a duly· authorized"representative of the Secretary of Labor at all times relevant to the issuance
of Citation No. 789508.
4. The violation of mandatory standard 30 C.F.R. § 75.316 charged in
Citation No. 789508 is found to have occurred as alleged.
5. The subject violation of mandatory standard 30 C.F.R. § 75.316
was caused by the mine operator's unwarrantable failure to comply with such
mandatory standard.
6. The subject violation of mandatory standard 30 C.F.R. § 75.316 was
of such nature as could significantly and substantially contribute to the
cause and effect of a mine safety or health hazard~
7. Citation No. 789508 was properly issued under section 104(d)(l) of
the 1977 Mine Act.
8. All of the conclusions of law set forth in Part V, supra, are
reaffirmed and incorporated herein.

VII.

Proposed Findings of Fact and Conclusions of Law

The parties made closing arguments at the conclusion of the hearing on
November 8, 1979. U.S. Fuel and MSHA filed briefs on June 17, 1980, and
July 9, 1980, respectively. Such closing arguments and briefs, insofar as
they can be considered to have contained proposed findings and conclusions,
have been considered fully, and except to the extent that such findings and
conclusions have been expressly or impliedly affirmed in this decision, they
are rejected on the grounds that they are, in whole or in part, contrary to
the facts and law or because they are immaterial to the decision in these
cases.
VIII.

Penalty Assessed in Docket No. WEST 80-62

Upon consideration of the entire record in these cases and the foregoing
findings of fact and conclusions of law, I find that the assessment.of a
penalty is warranted as follows in Docket No. WEST 80-62:
Citation No.

Date

30 C.F.R. Standard

Penalty

789508

4/10/79

75.316

$3,000

ORDER
Accordingly, IT IS ORDERED that the application for review in Docket
No. WEST 79~81-R be, and hereby is, DENIED, and that Citation No. 789508 be,
and hereby is, AFFIRMED.
IT IS FURTHER ORDERED that U.S. Fuel pay the civil penalty in the amount
of $3,000 assessed in Docket No. WEST 80-62 within 30 days of the date of
this decision.

Distribution:
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Richard H. Nebeker, Esq., Callister, Greene & Nebeker, 800 Kennecott
Building, Salt Lake City, UT 84133 (Certified Mail)
Administrator for Metal and Nonmetal Mine Safety and Health,
U.S. Department of Labor
Administrator for Coal Mine Safety and Health, U.S. Department of Labor
Standard Distribution

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400

DENVER.COLORADO 80204

JONao•

)

SECRETARY OF LABOR, MINE SAFETY AND ) CIVIL PENALTY PROCEEDING
)
HEALTH ADMINISTRATION (MSHA),
) DOCKET NOS. CENT 79-059-M
)
Petitioner,
CENT 79-211-M
)
CENT 79-300-M
)
v.
CENT 79-361-M
)
DENV 79-531-M
)
(Consolidated)
) DOCKET NOS. CENT 80-192-M
CAPTIOL AGGREGATES, INC. ,
)
CENT 80-213-M
)
Respondent.
(Consolidated)
)

) MINES: Capitol Cement Quarry & Plant

.)

and Del Rio Pit and Plant

DECISION
Appearances:
Sandra Henderson, Esq., Office of the Solicitor
United States Department of Labor, 555 Griffin Square Building
Dallas, Texas 75202
For the Petitioner,
Robert W. Wachsmuth, Esq., KELFER, COATNEY & WACHSMUTH, 311 Bank
of San Antonio, One Romana Plaza, San Antonio, Texas 78205
For the Respondent·,
Richard L. Reed, Esq., JOHNSON, KROZ & VIVES, 2600 Tower Life
Building, San Antonio, Texas 78205
For the Respondent.
Before: Judge Virgil E. Vail
Administrative Law Judge
The above-captioned civil penalty proceedings were brought pursuant to
section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq., (hereinafter referred to as "the Act"). The violations were
chargedin 8 citations issued to the respondent. following inspections. at
the respondent's Capitol Cement Quarry and Plant and Del Rio Pit and
Plant.
Prior to the presentation of evidence in the above cases, the parties
entered into a stipul~tion wherein specified citations would be settled
subject to a ruling on the issue raised by the respondent as to whether the
Federal Mine Safety and Health Administration had ·jurisdiction over the

1684

respondent's two mines involv.ed herein. The parties stipulated to certain
facts, presented oral arguments and submitted briefs in support of their
respective positions on the question of jurisdiction.
I. Issues

1. Whether respondent's mines involved herein are subject to the Act
under 30 U.S.C. § 803 (Supp. 1977), .and
2.

Whether respondent violated standards of the Act.

II. Jurisdiction
The respondent argues that the products from its mines are not sold
out of state and do not otherwise affect interstate commerce, and therefore
its mines are not subject to regulation under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 803 (Supp. 1977).
The petitioner argues that a de minus effect or even purely
intrastate activities may be foundto affect inters.tate commerce.
The undisputed and stipulated facts show that of over 200 customers to
whom respondent sell.s its products there is one customer, the State of
Texas, to which sales are used for the purpose of highway construction,
within the state of Texas. That it o'nly sells within the feasible shipping
and market area of the resp'ondent, which is a 200 mile radius of the plant
in San Antonio, Texas. Further, of the 200 customers to whom respondent
sells, tnere are three customers who have requested that their billings be
sent to an out-of-state address, but whose products are shipped within the
200 mile radius of respohdent' s plant and that no materials from the
respondent's plants were shipped outside the state of Texas (Tr. 22-26).
Section 4 of the Act provides: "Each coal or other mine, the products
of which enter Comriierce, o'r the operations or products of which affect
Connnerce, and each operator of a mine, and every· miner iri such mine shall
be subject to the provisions of the Act."
Section 3(b) of the Act define·s "Connnerce" as "trade, traffic,
conunerce, transportation, or connnunication among the several States, or
between a pla~e in a State and any place outside thereof, or *** between
points in the same State but thr~.ugh a point outside thereof."
I conclude that respondent's mine operations come within the Gonunerce
coverage of the Federal Mine Safety and Health Act of 1977. The material
mined by the respondent is used for construction of highways in the State
of Texas which are used in the regular stream of interstate connnerce.
Highway construction and maintenance have been held to be within interstate
coverage of Federal statutes. See N.L.R.B. v. Custom Excavating Inc.,
575 F. 2d 202 (7th Cir: 19)8} ..
In Fry v. United States, ''421 U.S. 542, 547 (1975), The Supreme Court
said, "Even activity that is purely intrastate in· character may be

J
1 "8.
'l
' '

regulated by Congress, Where the activity, combined with like conduct by

othe~s similar situated,' affects commerce among the States or with Foreign

Nations." See Heart of Atlanta Motels, Inc. v. United States, 379 U.S.
241, (1964); Wickard v. Filburn, 317 U.S. 111, (1942). In the oft-quoted
case of Wickard v. Filburn, supra, the Supreme Court held that wheat grown
by an individual farmer for his own consumption is subject to federal
regulations if it exerts a substantial economic effect on interstate
connnerce. The Court said that, even though the farmer's contribution to
the demand for wheat may be trivial, that is "not enough to. remove him from
the scope of federal regulations where, as here, his contribution taken
together with that of many others similarly situated, is far from trivial."
At p. 127.
In considering the narrow set of facts submitted in this case, that is
the use of materials for state highways, the use of the government postal
system for transporting the billings to addresses of customers outside the
State of Texas, and use of materials by over 200 customers within the State
of Texas, I find that the respondent's mines' products affected cormnerce,
and as such, are subject to the Act.
III. Settlement Proposals
CENT 79-211-M
At the hearing, the parties stated that they had agreed to settle the
two Citations nos. 169799 and 169.800 which involve citations issued at the
Del Rio Pit and Plant and are contained in DOCKET No. CENT 79-211-M. The
agreement for settlement provided that Citation no. 169799, with a proposed
penalty assessment of $12.00, be reduced to $8.00 arid that Citation no.
169800 with a proposed assessment of $22.00 be reduced to $17.00, subject
to my ruling on the ;urisdictional issue. ·.Having ruled that the mines
are covered under the Act, and having considered the proposed settleme.nt
and the six criteria as set forth in Section llO(i) of the Act, I conclude
the proposed settlements should be approved.
CENT 79-59-M
The Secretary moved at the hearing to vacate Citation no. ·169732. The
reason given for vacating this citation was a belief that the evidence
would not support the charge. Citation no. 169732 is therefore vacated.
CENT 79-361-M, CENT 80-213-M, CENT 80-192-M
At the hearing the parties agreed, subject to my ruling on the
jurisdictional matter, that the Secretary would vacate Citation no. 169476
(Docket No~ CENT 79-361-M) and respondent Would pay the full amount of the
proposed penalty assessments for Citation no. 170993 (Docket No. 80-213-M)
in the amount of $36.00 and Citation no. 170913 (Docket no. 80-192-M) in
the amount of $44.00. After reviewing the record, the statements of
counsel, and considering the six criteria of section 110( i) of the Act, and
further, based on my ruling that the mines involved herein are subject to
the jurisdiction of the Act, I approve the motion vacating Citation no.

168b

169476 and the proposed settlement of Citation no. 170993 and 170913 for
$36.00 and $44.00 respectively.
CENT 79-300-M
The parties entered into a stipulation at the hearing regarding
Citation no. 170405 which alleges a violation of 30 C.F.'R. 56.9-22. Said
standard provides that, "Berms or guards shall be provided on the O\.lter
bank of elevated roadways."
The parties agreed that there was no dispute regarding the facts
surrounding the issuanc~ of Citation no. 170405 but the respondent
contested whether the standard, alleged to·have been violated, applied in
this instance. The parties stipulated to the facts and then argued the
application of said facts to the law in their p~st-headng briefs.
A decision in this matter was also contingent upon my ruling on the
jurisdictional issue.
Citation no. 170405 reads~ in part, as follows: "The elevated ramp
leading to the solid fuel loading hopper was not equipped with a berm or
guard creating a hazard for the operator on the front end loader in. case of
running off the ramp."
The stipulated facts are ·:as follows:
1.

The length of the ramp involved was approximately thirty feet.

2.

The height of the ramp at the highest point was approximately four

feet.

3. The ramp was only used by a caterpillar front-end loader, or that
was the only piece of equipment that used it.

4. The ramp in que.stion was used for dumping solid fuel in the form
of petroleum coke into a solid fuel loading hopper. (Tr. 8).
In the responden~'s post-hearing brief, he argues that the only
question presented here is whether a ramp constitutes an "elevated roadway"
within the meaning of the standard .cited by the Compliance Officer (p. 14).
Altho.ugh respondent later in his pof?t-hearing brief raises the issue that
evidence as to ~he lack of berms on· the ramp was not included in the
stipulation. I discard his argument, as the transcript of the hearings
indicates the parties understood and agreed that the only issue to be
decided was "(w)hether the ramp involved is an elevated roadway within the
interpretation of the cited standard." (Tr. 8). This statement was made
by the attorney for the respondent and he is bound by such a representation. If he wished to raise the issue of whether there were berms on the
ramp the hearing would have been the proper time to do it.
The eviden-ce as stipulated to shows the "ramp" involved herein was
approximately thirty feet long, four feet high at the highest point and

used by a front-end loader to dump solid fuel into a loading hopper. (Tr.
8).
The standa.rd, 30 C.F.R. 56.9-22, refers to "elevated roadways"
requiring berms or guards. The definition of "roadways" in Webster's Third
New International Dictionary is: "A strip of land through which a road is
constructed and which is physically altered."
A "road" is defined as: "An open way or public passage for vehicles,
persons and animals . • . a private way."
In the reference to area travelled by the front end loader herein the
parties, at the hearing and in their post~hearing briefs, referred to the
structure as a "ramp." Webster's New Collegiate Dictio.nary (1979 Ed.) '
defines "ramp" as: "a sloping way: as a sloping low walk or roadway ·leading
froll). one level to another." .(emphasis added).
In view of the above and the fact that this "ramp" was used to drive a
piece of machinery back and forth over the structure, I find that the so
called "ramp" was a "roadway" as described in the standard •.
The respondent argues that the standard requires only installation of
a berm on "the outer bank of elevated roadways'' (emphasis supplied). This
question was considered by the Federal Mine Safety and Health Review
Commission and they rejected this argument. The Review Commission stated
that, "(i)f protection were extended only to .those elevated roads with one
open bank, while elevated roads with two opert banks were not required to be
bermed or guarded, miner safety would certainly be adversely affected." We
agree with the Corrnnission that the standard applies to all elevated banks.
Secretary of Labor (MSHA) v. Cleveland Cliffs Iron Co., Inc. Docket nos.
VINC 76-68-M and VINC 79-240-PM (February 1981).
I find froin the stipulated facts that the respondent did violate the
standard by failing to provide for berms on the roadway and based upon said
stipulation approve a penalty of $52.00.
DENV 79-531-M
On May 16, 1978, federal mine inspector, Dan Haupt, issued Citation
no'. 161704, alleging a violation of ~andatory safety standard 56.550(b). I The citation charged that, "The 988 caterpillar loader operator
was exposed to 168 percent of the permissible limit for an eight hour exposure to noise. ·Feasible engineering or administrative controls were not
being used to reduce this level in order to eliminate the need for hearing
protection."

1/ 56.5-50 (b) When employees' exposure exceeds that listed in the above.
table, feasible administrative or engineering controls shall be utilized.
If such controls fail to reduce exposure to within permissible levels,
personal protection equipment shall be provided and used to reduce sound
levels to within the levels of the table.

1l>8H

Respondent raises several legal and factual issues concerning the
validity of the citation. It. is not necessary to address all those
arguments in order to determine whether or not the citation should be
affirmed.
Mr. Haupt testified that he took a sound level reading of the loader,
and since the reading was very high, he decided to samp'le the noise level
of the operator. A DuPont D-100 dosimeter was used in conducting the eight
hour test. (Tr. 34). The inspector stated that the re·adout was 168% of the
allowable 100% level, or approximately 93.5 to 94 dBA. (Tr. 42).
On c·ross examinatio.n Mr. Haupt testified that he had received the
dosimeter from the district office in Dallas. He was uncertain as to how
long he had had it, although it had been at least one year. The dosimeter
had been calibrated before it was sent to him and had not been calibrated
since that time. (Tr. SO). Furthermore, he tesitifed that he did not know
how long it had .been since the calibration had been checked prior .to the
inspection. (Tr. 51). He stated, however, that the calibration was checked
on a monthly basis. (Tr. 51 & 63).
In the case of Secretary of Labor v. Maudlin Con$tniction Compan CENT
80-114-M (December 18, 1980 , I held that dosimeters must be calibrated
irmnediately prior to testing, in order to assure accurate test results.
The facts in that case and the one now under consideration are for all
practical purposes identical. The burden of proving the accur_acy of the
test results i-s with the Petitioner" ~e record is void of any facts that
would persuade me to depart from my previous position.
Therefore, Petitioner having failed to prove the accuracy ·of the test
results, the citation is vacated and the case dismissed.
ORDER.
CASE
CENT 7'9-59-M
CENT 79-:-211-M
CENT 79-300-M
CENT 79-361-M
DENV 79-531-M
CENT 80-192-M
CENT 80-213-M

CITATION NO.
169732
169799
169800
170405
169476
169704
170913
170993

FINAL DISPOSITION
Vacated
$ 8.00
$17.00
$52.00
Vacated
Vacated
$44.00
$36.00

It is hereby ORDERED that Respondent pay the penalties totaling
$157.00 within forty (40) days from the date of this decision.

Administrative Law Judge

168B

Distribution:
Sandra Henderson, Esq.
Office of the Solicitor
United States Department of Labor
555 Griffin Square
Dallas, Texas 75202
Robert W. Wachsmuth, . Esq
KELFER, COATNEY & WACHSMUTH
311 Bank of San·At\tonio
One Romana Plaza
San Antonio, Texas 78205
Richard L. Reed, Esq.
JOHNSON, KROZ & VIVES
2600 Tower Life Building
San Antonio, Texas 78205

.lllHO

FEDER.AL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER.COLORADO 80204

)

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

Petitioner,

•

)
)

v •.

)
)
)
)
)
)
)
)
)

ASARCO, INCORPORATED,
Respondent.

~~~~~~~~~~~~~~~~~-

JUN301MJ\

CIVIL PENALTY PROCEEDINC..
DOCKET NO. WEST 79-124-M
MSHA CASE NO. 05-00516-05010
DOCKET NO. WEST 79-125-M
MSHA CASE NO. 05-00516-05011
DOCKET NO. WEST 79-126-M
MSHA CASE NO. 05-00516-05012
DOCKET NO. WEST 79-207-M
MSHA CASE NO. 05-00516-05013
DOCKET NO. WEST 79-310-M
MSHA CASE NO. 05-00516-05014
DOCKET NO. WEST 81-12-M
MSHA CASE NO. 05-00516-05022
DOCKET NO. WEST 81-13-M
MSHA CASE NO. 05-00516-05023
MINE: Leadville Mine

Appearance:
James H. Barkley, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
For the Petitioner,
Earl K. Madsen, Esq.
BRADLEY, CAMPBELL & CARNEY
1717 Washington Avenue
Golden, Colorado 80401
For the Respondent
Before: Judge John A. Carlson
DECISION
law.

These cases involve the same parties and similar issues of fact and
Accordingly, they are consolidated.

The Secretary of Labor has charged Asarco, Inc., with violations of
several safety standards promulgated under the Federal Mine Safety and
Health Act. 30 U.S.C. § 801 et seq. At a hearing held on May 20, 1981, the
parties offered the followingdisposition of these cases.

1691

WEST 79-124-M
The Secretary moved to withdraw citation nos. 333491, 333492 and
328533 and their proposed penalties. (Tr. 6). AWI"ittenmotion ,_.as
submitted at the hearing .. As reas·on therefor, petitioner stated that there
was insufficient evidence to support these citations. (Tr. 6).
Pursuant to 29 C.F.R. 2700.11, the motion is granted. Citation nos.
333491, 333492 and 328533 and the corresponding proposed penalties are
vacated.
As· 'to the remaining cit at ions, Asai:co moved to withdraw its not ice of
contest. (Tr. 6). Pursuant to 29 C.F.R. 2700.11, the motion is granted.
The following citations and their respective penalties are affirmed.
Penalty

Citation No.
328524
.328525
328526
. 328527
328530
333486
328532
328534
328536
333488
333489
333490
333493
333494
333495

$180.00
195.00
275.00
195.00
180.00
160.00
345.00
370.00
195.00
160.00
225.00
225.00
180.00
210.00
210.00
$3,305.00
WEST 79-125-M

The Secretary moved to withdraw citation nos. 333397, 333390 and their
proposed penalties. (Tr. 8). A written motion was also submitted.
As reason therefor, petitioner stated that these citations had no
precedential value and.the Mine Safety and Health Administration (MSHA)
inspector who issued them. is no longer employed by the Agency. The
inspector is the only individual who can testify in. support of these
citations (Tr. 8). In the written motion the Secretary stated that there
was a lack of evidence to support these citations. Pursuant to 29 C.F.R.
2700.11·, the motion is granted. Citation nos. 33~397 and 333390 and their
respective proposed penalty are vacated,
Respondent moved. to withdraw its notice of contest to the remaining
Pursuant to 29 C.F.R. 2700.11, the motion is granted. (Tr. 9).

c~tations.

1692

The following cit at ions and the corresponding penalties are afftrmed.
Citation No.

Penalty

333385
333386
333387
333388
333389
333391
333392
333393
333394
333395
333396
333399
333400
333881
333883
333885

$

170.00
170.00
122.00
170.00
170.00
160.00
160.00
130.00
240.00
122.00
150.00
170.00
90.00
195.00
90.00
90.00
$2,399.00
WEST 79-126

Asarco moved to withdraw its notice of contest to all of the citations
at issue. (Tr. 10). Pursuant to 29 C.F.R. 2700.11, the motion is granted.
The following citations and corresponding penalties are affirmed.
Citation No.

Penalty

333889
333890
334435
334436
334438
334439

$

98.00
98.00
150.00
180.00
225. 00
305.00
$1,056.00
WEST 79-207

The Secretary moved to withdr'aw cit at ion nos. 333882, 333884, 333887,
330411 and 334437 and their proposed penalties. (Tr. 9, 10). A written
motion was also submitted.
As reason therefor, petitioner stated that as to the first three
citations, the MSHA inspector who issued them is no longer employed by the
Agency. The inspector is the only individual who can testify in support of
these citations. (Tr. 9). The Secretary also stated at the hearing and in
his motion that there is insufficient evidence to support the five
citations. (Tr. 10).

Purrnant to 29 C.F.R. 2700.11, the motion is granted·. Citation nos.
333882, 313884, 333887, 330411, 334437 and their respective penalty are
vacated.
Asarco 1ooved to with~raw its notice of contest to the remaining
citations. (Tr. 11~. Pursuant to 29 C.F.R. 2700.11, the-motion iJ grant~d.
The followirg citations and the corresponding penalties are aff~rmed.
Citation No.

Penalty

328535
328537
333398
334440·
330412
330413
3°30414
330416
334402
334403

$' 170.00
130.00
130.00
J8o.oo
225.00
210 .00
305.00
210.00
150.00
210.00
$1,920.00
WEST 79:...310-M

Asarco moved to withdraw its notice of contest to citation no. 330415
which is the subject of this proceeding-. (Tr. 12). Pursuant to 29 C.F .R.
2700.U, the motion is granted. Citation no. 330415 and the penalty of
jl80.00 are affirmed.
WEST 81-12-M
The Secretary moved to withdt.?·1 Citation nos. 566731, 566407, 566.408,
567031 and 567033 (Tr. 12, 13). A written motion ·was also submitted.
In support thereof, the Secretary stated as to Citation no. 566731
'that he had· insufficient evidence. (Tr. 12). Concerning Citation nos.
·566407, 566408 and 567031, the Secretary· stated that Asarco had a program
of regular inspections of the posts involved which may have revealed that
some were loose, the condition cited ·by the inspector. Therefore, the
circumstances may not have constituted a violation of the standard •. (Tr.
13).
As to Citation no. 567033, petitioner stated that the blasting wire in
question was properly supported, and therefore, no violation occurred.
Respondent stated that proper shunting and equipment were used and there
was no improper handling of the blasting box (Tr. 13). The Secretary
agreed to these facts~ (Tr. 15).
Pursuant to 29 C.F.R. 2700.11, the Secretary's motion is granted.
above citations and their respective penalties are vacated;

169'1

The

Asarco moved to withdraw its notice of contest to the remaining
Ci tat ions. (Tr. 14). · Pursuant to 29 .C. F. R. 2700 .11, the mot iori is g.ranted.
The following Citations and their respective penalties are affitmed.
Citation No.
566404
566405
566406
567026
567027
567028
567029
567030
567032
567034
566409
566410
567035
567036
56.7037

Penalty
$

84.00
60.00
255.00
34.00
48.00
78.00
78.00
240.00
140.00
180.00
98.00
84.00
..
90.00
60.00
90.00
44.00
$1,663.00
WEST 81-13-M

The Secretary moved to withdraw Citation no. 566732 and the proposed·
penalty. (Tr. 15). A written motion was also submitted. In support
thereof the Secretary stated that there was insufficient evidence to
support the Citation. (Tr. 15).
Pursuant to 29 C.F.R. 2700.11, the motion is granted.
566732 and the proposed penalty are vacated.

Citation no.

As to the remaining cit at ions, Asarco moved to withdraw its not ice of
contest. (Tr. 16). Pursuant to 29 C.F.R •. 2700.11, the motion is granted.
The following citations and corresponding penalties are affirmed.
Cit at: ion No.

Penalty

567038
567040

$114 .00
·90.00
$204.00

The Secretary stated that as to all citations he proposed to withdraw,
in the above cases except those withdrawn because of the unavailability of
the inspector, the petitioner and respondent reviewed all the evidence and
the. Secretary discussed the matters thoroughly with MSHA before submitting
its motion. (Tr. 15, 16).

E.espondent shall pay the penalty amount assessed for each docket'
number within 30 days of the date of this order.
SO ORDERED.

Judge
Distribution:
James H. Barkley, Esq.
Office of the Solicitor
United States Department of Labor
~585 Federal Building
1961 Stout Street
Denver, Colorado 80294
Earl K. Madsen, Esq.
BRADLEY, CAMPBELL & CARNEY
1717 Washington Avenue
Golden, Colorado 80401

169b