NARCH 1990
COl-lliiSSION DECISIONS
03-08-90
03-21-90
03-27-90
03-28-90
03-29-90

Local 2333, UMWA v. Ranger Fuel Corporation
Ozark-Hahoning Company
Odell Maggard v. Chaney Creek Coal Co.
Flippy Coal Company
Horgan Cor,Joration

WEVA 86-439-C
Pg. 363
LAKE 88-128-RM Pg. 376
Pg. 380
KENT 86-1-D
VA
90-8
Pg. 391
SE
89-50-M
Pg. 394

ADMINISTRATIVE LA\v JUDGE DECISIONS
03-01-90
03-01-90
03-02-90
03-08-90
03-08-90
03-08-90
03-09-90
03-09-90
03-13-90

Rochester & Pittsburgh Coal Co.
VP-5 Mining Company
Beth Energy Mines, Inc.
Hichael Damron v. Reynolds Metals Co.
William G. Hagy
Thomas J. Tabor, Jr.
Davjd Thomas/Georp.e Issacs v. Ampak Mining
Hinkle Contracting Corporation
Sec. Labor on behalf of 6 miners v.
Smooth Sailing Coal Co. & James Runyon

PENN 89-75
VA
89-56
PENN 88-149-R
CENT 89-131-DM
SE
90-43-R
SE
90-44-R
KENT 89-13-D
KENT 90-5-M
KENT 89-90-D

Pg. 397
Pg. 399
Pg. 403
Pg. 414
Pg. 422
Pg. 425
Pg. 428
Pg. 431
Pg. 437

03-13-90

Energy Fuels Coal, Inc. - includes various

WEST 89-237-R
\VEST 89-294-R
WEST 90-31-RN
PENN 88-267-D
KENT 89-161-R
\VEST 89-16-1-i
PENN 90-8-D

Pg. 446
Pg. 462
Pg. 463
Pg. 468
Pg. 536
Pg. 541
Pg. 543

KENT 89-176-R
KENT 89-210
VA
89-72-D

Pg. 544
Pg. 558
Pg. 563

WEST 89-79-D

Pg. 570

WEST 86-240

Pg. 572

03-13-90
03-15-90
03-16-90
03-19...:90
03-19-90
03-19-90
03-21-90
03-22-90
03-27-90
03-27-90

docket numbers through \VEST 89-294-R
Big Horn Calcium Company
Terry Fowler v. Atlas Services Corporation
Arch of Kentucky, Inc.
Channel & Basin Reclamation
Sec. Labor on behalf of Leonard Edwards v.
Rochester & Pittsburgh Coal Co.
Arch of Kentucky , Inc.
Green River Coal Co., Inc.
Sec. Labor on behalf of Amos Hicks v.
Cobra Mining, Jerry Lester & Carter Nesser
Sec. Labor on behalf of Jack Winninghoff v.
Black Pine Mining Company
Emery Mining Corporation/Utah Power & Light

ADMINISTRATIVE LAW JUDGE ORDER
03-21-90

Armando Rivas v. Phelps Dodge Morenci, Inc.

WEST 89-395-DM Pg. 595

MARCH 1990
Review was granted in the following cases during the month of March:
Secretary of Labor, MSHA v. Pennsylvania ElecLrie Company, Docket No.
PENN 88-227. (Judge Melick, January 23, 1990)
Secretary of Labor, MSHA v. Flippy Coal Company, Docket No. VA 90-8.
Decision of Chief Judge Merlin on March 9, 1990)

(Default

Review was denied in the following cases during the month of March:
Secretary of Labor, MSHA v. Peabody Coal Company, Docket No. WEST 89-96.
(Judge Lasher, January 22, 1990)
Consolidation Coal Company v. Secretary of Labor, Docket No. UEVA 89-234-R,
etc. (Judge Merlin, Interlocutory Review of January 24, 1990 Order)

COMMISSION DECISIONS

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

8, 1990

LOCAL UNION 2333, DISTRICT 29,
UNITED MI~~ wORKERS OF AMERICA

(UMWA)
v.

Docket No. WEVA 86-439-C

RANGER FUEL CORPORATION

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

DECISION

BY THE C0~1ISSION:
This compensation proceeding ar1s1ng under the Federal Mine Safety .
and Health Act of 1977, .30 U.S.C. § 801 et seq. (1982)("Mine Act" or
"Act"), is before the Commission for the second time. The United Mine
\~orkers of America ( "UMWA") seeks compensation from Ranger Fuel
Corporation ("Ranger") under the third sentence of section 111 for an
idlement of miners following the issuance of an imminent danger
withdrawal order pursuant to section 107(a) of the Act. ]) Previously,

11

Section 111 of the Mine Act provides in relevant part as follows:
[1] If a coal or other mine or area of such mine
is closed bv an order issued under section [103]
... , sectio~ [ 104] ••• , or section [ lOi) of this
[Act], all miners working during the shift when such
order was issued who are idled by such order shall
be entitled, regardless of the result of any review
of such order, to full compensation by the operator
at their regular rates of pay for the period they
are idled, but for not more than the balance of such
shift. [2~ If such order is not terminated prior to
the next working shift, all min.ers on that shift who

363

on interlocutory review, we held that Ranger's payment of a civil
penalty for a citation issued subsequent to the issuance of the imminent
danger withdrawal. order precluded Ranger from contesting in this
are idled by such order shall be entitled to full
compensation by the operator at their regular rates
of pay for the period they are idled, but for not
more than four hours of such shift. [3] If a coal
or other mine or area of such mine is closed by an
order issued under section [104] .. . or section .
[107) of this [Act] for a failure of the operator to
comply with any mandatory health or safety
standards, all miners who are idled due to such
order shall be fully compensated after all
interested parties are given an opportunity for a
public hearing, which shall be expedited in such
cases, and after such order is final, by the ·
operator for lost time at their regular rates of pay
for such time as the miners are idled by such
closing, or for one week , whichever is the lesser .
[4] Whenever an operator violates or fails or
refuses to comply with any order issued under
section [103] ...• section [104] ..•• or section
[107] of this [Act], all miners employed at the
affected mine who would have been withdrawn from, or
prevented from entering, such mine or area thereof
as a result of such order shall be entitled to full
compensation by the operator at their regular rates
of pay, in addition to pay received for work
performed after such order was issued , for the
period beginning when such order was issued and
ending when such order is complied with, vacated, or
terminated . . ..
30 U.S.C . § 821 (sentence numbers added).
Section 107(a) of the Act provides in pertinent part:
If, upon any inspection or investigation of a coal
or other mine which is subject to this chapter, an
authorized representative of the Secretary finds
that an imminent danger exists, such representative
shall determine the extent of the area of .such mine
throughout which the danger exists, and issue an
order requiring the operator of such mine to cause
all persons , except those referred to in section
[104(c)] of this title, to be withdrawn from, and to
be prohibited from entering , such area until an
authorized representative of the Secretary
determines that such imminent danger and the
conditions or practices which caused such imminent
danger no longer exist. ,,,
30 U.S . C.

§

817(a).

364

compensation proceeding the violation that was alleged in the citation.
We further held, however, that Ranger could challenge in this proceeding
· the causal relationship between the alleged violation and the issuance
of the imminent danger withdrawal order. We therefore remanded this
matter for further proceedings. Loc. U. 2333, UMWA v. Ranger Fuel
Corp., 10 FMSHRC 612 (May 1988) ("Ranger Fuel I"). On remand,
Coinmission Administrative Law Judge Gary Melick held that the imminent
danger withdrawal .o rder had not been timely contested by Ranger and had
become final for purposes of section 111. Finding that there was a
causal nexus between the withdrawal order and the violation alleged in
the citation, the judge awarded the complainants compensation and
prejudgment interest. 10 FMSHRC 1474 (October 1988)(ALJ). We granted
Ranger's petition for discretionary review.
The principal issues presented on review are: whether an operator
may challenge in a compensation proceeding the validity of an imminent
danger withdrawal order despite the operator's failure to contest t~e
order pursuant to section 107(e)(l) of the Mine Act (n. 3 infra);
whether there was a causal "nexus" between the withdrawal order and the
violation alleged in the subsequently issued citation; and whether
prejudgment interest may be awarded in a compensation proceeding. For
the reasons that follow, we affirm the judge's award of compensation and
interest but direct that interest be calculated according to the formula
set forth by the Commission in Secretary on behalf of Bailey v.
Arkansas-Carbona Co., S FMSHRC 2642 (December 1983), and, as applicable,
Loc. U. 2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (November
1988) ("Clinchfield II"), aff'd sub nom. Clinchfield Coal Co. v. FMSHRC,
No. 88-1873 (D.C. Cir. February ~1990). See also 54 Fed. Reg. 2226
(January 19, 1989).
I.

On May 29, 1986, William Uhl, an inspector of the Department of
Labor's Mine Safety and Health Administration ("MSHA"), conducted an
inspection of Ranger's Beckley No. 2 underground coal mine located in
Beckley, West Virginia. Inspector Uhl entered the mine at approximately
8:30 a.m. and proceeded to the 7-East section. While inspecting the
longwall in that section, Uhl heard what he termed a "large fall" in the
gob. Tr. 100-01. At about 10:00 a.m., Uhl arrived at a location in the
Number 3 Entry on the tail side of the longwall immediately adjacent to
the roof fall. Using a hand-held methane detector, he found the level
of methane gas to be in excess of five percent. (Methane becomes
explosive at a five percent concentration. Ranger Fuel I, supra,
10 FMSHRC at 614, citing Monterey Coal Co., 7 FMSHRC 996, ~000-01 (July
1985).) Uhl testified that the concentration of methane was too "heavy"
for him to attempt further readings inby. However, he took additional
readings outby, where the methane content was approximately one percent
lower.
Uhl believed that the immediate cause of the methane concentration
was a sudden inundation resulting from the roof fall that he had heard
and he also believed that the mine's ventilation bleeder system was not
working properly to dissipate the methane, due to a water blockage in a
passageway. Tr. 99, 102-04, 106-12, 115, 118, 125, 148. At 11:30 a.m.,

365

Uhl issued imminent danger withdrawal order No. 2577281 to Ranger
pursuant. to section 107(a) of the Mine Act (n . 1 supra) . The order
states in part:
An explosive mixture of methane gas in excess of
five (5) per(c]ent was present in the seven east
0-13-0 section in the number three •.• entry side of
the longwall ••. extending inby the face when tested
with an approved E.70 methane detector (calibrated
05-22-86) •.. •
0

As a result, ·Ranger withdrew all miners then underground.
Later that same day, Kenneth Perdue, Ranger's senior safety
supervisor, went to the 7-East section with two other foremen and took
methane readings between 2:00 and 4:00 p.m. Perdue testified that there
was not an explosive mixture present in the locations that he · sampled
and that none of his methane readings exceeded two to three percent .
Perdue acknowledged, however, that excessive levels of methane were
found when a gob probe was extended into the gob area. The highest
methane reading obtained by Perdue using the gob probe was four percent .
Perdue also testified that his inspection of the bleeder system showed ·
sufficient ventilation and that the bleeder system was doing what it was
supposed to do . In Perdue ' s opinion, Inspec~or Uhl's five percent
methane reading was caused by the roof fall and because the bleeder
system had not had enough time to dissipate the methane .
Between 6:00 and 8:00p.m. Inspector Uhl's 3upervisor, Jules
Gautier, arrived at the mine with a group of MSHA inspectors and
proceeded underground to evaluate the bleeder system and determine what
area was affected. Gautier testified that, at that time, further
methane samples indicated that there was still an explosive mixture of
methane present and, due to the water accumulation resulting in a
blockage, he could not effectively evaluate the bleeder system.
The next day, May 30, 1986, MSHA personnel met with Ranger
officials but did not go underground to inspect the mine. Ranger
requested that the withdrawal order be modified to allow the miners in
other sections to return to work. The request was denied because,
according to Gautier, the methane samples taken the previous evening
showed an explosive mixture of methane in the tail entries and, due to
the problems with the water accumulation, it was not known to what ·
extent methane was present. On May 31, 1986, after another visit by
NSHA inspectors, MSHA modified the withdrawal order, permitting the west
and north end of the mine to resume operation because the methane was no
longer in the explosive range in the tail entry. The order remained in
effect for the 7 East and 8 East sections, however, because the
inspectors still could not reach the bleeder area.
On June 3, 1986, Gautier received an oral report concerning the
results of methane bottle samples that had been collected on May 29 and
31, 1986 . In Gautier ' s view, the report showed that two days after the
initial outburst of methane. the cited section still had methane in the
three to four percent range. Tr. 32. As a result of this report and a

366

bottle sample taken by Uhl on May 29 indicating 5.56 percent methane,
Gautier instructed Uhl to issue Ranger a citation, pursuant to section
104(a) of the Mine Act, 30 U. S.C. § 814(a), alleging an inadequate
bleeder system in violation of 30 C. F. R. § 75.329 . ~/ The citation,
issued on June 3, states:
Based on laboratory analysis of an air sample
collected on 05/29/86 . .. the bleeder system failed
to function adequately to carry away an explosive
mixture of methane in the tail entries of the 7 East
longwall section (013 - 0) .•. extending inby for at
least 500 feet. Analysis indicated the methane
content to be in an explosive mixture of 5.567. CH4
with 19.757. oxygen present . The citation was a
factor that contributed to the issuance of imminent
danger order No. 2577281 date 05-29-86 , (therefore
no abatement time is set.)
(Emphasis added.) Gautier included the underlined sentence in the
citation because he believed that the bleeder system was not working
effectively and that there was not enough air in the affected area to
dilute the methane and render it harmless. Gautier testified that
usually a bleeder system takes care of the methane "pretty quick" but
that in this instance it took more than two days to get the methane out
of the tail entries.
On June 4, 1986, MSHA terminated the section 107(a) withdrawal
order and the section 104(a) citation following ~ determination that the
methane level in the mine was below the maximum permissible level as a
~/

Section 75.329 , which restates section 303(z)(2) of the Mine Act,
30 U.S.C. § 863(z)(2), provides in pertinent part:
On or before December 30 , 1970, all areas from
which pillars have been wholly or partially
extracted and abandoned areas .• . shall be
ventilated by bleede r entries or by bleeder systems
or equivalent means , or be sealed .•• ! When
ventilation of such areas is required, such
ventilation shall be maintained so as continuously
to dilute , render harmless , and carry away methane
and other explosive gases within such areas and to
protect the active workings of the mine from the
hazards of such methane and other explosive gases.
Air coursed through underground areas from which
pillars have been wholly or partially extracted
which enters another split of air shall not contain
more than 2. 0 volume pe r centum of methane, when
tested at the point it enters such other split .
When sealing is required, such seals shall be made
in an approved ma~ner so as to isolate with
explosion-proof bulkheads such areas from the active
workings of the mine.

367

result of.Ranger ' s installation of additional ventilation controls.
Ranger did not contest either the section· 104(a) citation pursuant
to sections 105(a) or (d) of the Mine Act or the section 107(a)
withdrawal order pursuant to section 107(e)(1) of the Act. 3/ After
receiving MSHA's notice of a proposed civil penalty assessm~nt of $213
for the violation alleged in the citation, Ranger paid the penalty on
August 29, 1986, without requesting a hearing.
As relevant here, the mine had been idled by the withdrawal order
from 11:30 a.m., May 29, to 7:00p.m., May 31, 1986, when the order was
modified to permit resumption of production in certain areas of the
mine. The miners working the 8:00 a.m. to 4 : 00 p.m. shift on May 29
were compensated by Ranger for the remainder of that shift and those
scheduled to work the following shift, 4:00 p.m. to midnight, were also
paid by Ranger for that shift. On August 15, 1986, the United Mine
Workers of America ( 11UMWA 11 ) , the representative of the miners at the
Beckley No . 2 Mine , filed with the Commission a compensation complaint
seeking "one- week compensation 11 under the third sentence of section 111
of the Act (n. 1. supra) on behalf of those miners who had been
scheduled to work on May 30 and 31, but were idled by the withdrawal
order. (Under the third sentence of section 111, miners idled as a
result of a section 104 or 107 withdrawal order issued "for a failure of

11

Section 105 of the Act, 30 U.S.C. § 815, provides operators with
two opportunities to contest and request a hearing concerning issuance
of a section 104 ·citation: section 105(d), 30 U.S.C. § 815ld), permits
immediate review of a citation and section 105(a), 30 U.S.C. § 815(a) ,
affords an opportunity to contest the penalty (and the underlying
allegation of violation) after the Secretary has proposed a civil
penalty for the alleged violation. See, ~· Ranger Fuel I, 10 FMSHRC
at 617 - 19.
Section 107(e)(1) provides operators an opportunity to contest the
issuance of an imminent danger order:
Any operator notified of an [imminent danger]
order under this section or any representative of
miners notified of the issuance, modification, or
termination of such an order may apply to the
Commission within 30 days of such notification for
reinstatement, modification or vacation of such
order. The Commission shall forthwith afford an
opportunity for a hearing (in accordance with
section 554 of title 5 but without regard to
subsection (a)(3) of such section) and thereafter
shall issue an order, based upon findings of fact,
vacating, affirming, modifying, or terminating the
Secretary ' s order. The Commission and the courts
may not grant temporary relief from the issuance of
any order under subsection (a) of this section.
30 U.S.C. § 817(e)(l) .

368

the operator to comply with any mandatory health or safety standards"
are entitled to compensation "for such time" as they are idled or "for
one week, whichever is the lesser.") Ranger's payment of the civil
penalty for the violation alleged in the citation, referenced above,
occurred some 10 days after Ranger had been served with a copy of the
UMWA's complaint for compensation under section 111.
Prior to hearing on the compensation complaint, both the UMWA and
Ranger filed motions for summary decision. The administrative law judge
denied both motions. We thereafter granted the UMWA's petition for
interlocutory review and reversed the judge's order insofar as he had
held that Ranger could contest in this compensation proceeding both the
fact of violation and the validity of the citation for which Ranger had
already paid the proposed civil penalty. 10 FMSHRC at 617-20. We
affirmed, however, the judge's order to the extent that he permitted
Ranger to litigate the issue of causal nexus between the violation
alleged in the citation and the- issuance of the section 107(a)
withdrawal order. 10 FMSHRC at 620-21. We remanded for further
proceedings.
Following a hearing on remand, Judge Melick concluded that the
section 107(a) imminent danger withdrawal order was "final" for purposes
of section 111 because of Ranger's failure to contest that order within
the time set forth in section 107(e)(l) of the Act (n. 3 supra).
10 FHSHRC at 1475-77. He concluded that the validity of the order and
the underlying issue of whether the order was, in fact, issued for an
'imminent danger could not be contested in this compensation proceeding.
Id. In reaching this conclusion, he stated that our decision in Ranger
Fuel I "would appear to preclude litigation of the underlying order,"
finding the issue presented to be analogous to the operator's related
failure to contest the citation or penalty proposal. 10 FMSHRC at 147677. He noted in particular that permitting Ranger to challenge the
imminent danger order in the compensation proceeding would anomalously
place the UMWA in the role of the Secretary of Labor in establishing the
validity of the order. 10 FMSHRC at 1477. Accordingly, citing Old Ben
Coal Co., 7 FMSHRC 205 (February 1985), he determined that the
"assertion of 'imminent danger' ••. in the order must ••. be regarded as
true." Id.
The judge also concluded that a causal nexus existed between the
imminent danger order and the violation alleged in the citation, holding
that an inadequate bleeder system was a causal factor in the existence
of the explosive mixture of methane found by Inspector Uhl. 10 FMSHRC
at 1476-78. He indicated that the allegations of violation and imminent
danger in the citation and withdrawal order respectively "must be
accepted as true" in light of Ranger's failure to contest those
allegations. 10 FMSHRC at 1477. He disregarded any evidence
conflicting with the relevant factual allegations in the citation and
the order. Id. He then found that the testimony of Inspector Uhl,
summarized above, concerning the effects of the malfunctioning bleeder
system in creating the imminent danger, was more credible than the
contrary testimony of Ranger's safety supervisor Perdue, also noted
above. 10 FMSHRC at 1478. Accordingly, the judge concluded that "the
cited violative condition[,] i.e., an inadequate bleeder system, was a

369

causal factor for the existence of the explosive mixture of methane
found . • . in the withdrawal order [and] the requisite causal nexus has
been established." Id. Based on these conclusions and the parties'
stipulations , the judge awarded compensation tb the miners in question.
He also awarded prejudgment interest on the compensation award,
calculated in accordance with the formula set forth in Arkansas-Carbona,
supra. 10 FMSHRC at 1479.
On review, Ranger submits that the judge erroneously refused to
consider evidence that the withdrawal order upon which the UMWA's
compensation claim is based was, in fact, invalid. Ranger submits that
it had the right to challenge the validity of the imminent danger order
in this compensation proceeding because that issue had never been
actually litigated . Ranger f urther contends that the judge erred in
finding a causal nexus between the imminent danger and the underlying
violation . It notes that the withdrawal order itself was not issued for
a violation of a mandatory standard, the citation being issued several
days after the order. Additionally, Ranger argues that the violative
conditions cited in the citation did not cause any "imminent danger" and
that, thus, the judge's finding of causal nexus is not supported by
substantial evidence. Finally, Ranger submits that the judge
erroneously added prejudgment interest to the award of compensation
inasmuch as section lll does not specifically provide for interest on
compensation awards.

II.
We turn first to the question of whether Rauger may challenge the
validity of the section 107(a) imminent danger order in this
compensation proceeding notwithstanding its failure to contest the order
under section 107(e)(1) of the Act.
As we discussed in Ranger Fuel I, section 105 establishes a
comprehensive scheme for contest and review of citations and orders
issued pursuant to section 104 of the Act. 10 FMSHRC at 617-19.
Accord, _Loc. U. 1810, UMWAv. NaccoMining Co., 11 FMSHRC 1231,1238-39
(July 1989) . We held that an operator's failu~e to contest under
section 105 (n . 3 supra) an allegation of violation in a citation
precludes it from challenging the fact of violation in the compensation
proceeding. Ranger Fuel I , 10 FMSHRC at 618-19·. We ' also concluded that
an operator's payment of the proposed civil penalty generated the same
preclusive effect for compensation purposes. Id. See also Loc . U.
1889, UMWA v. Westmoreland Coal Co. , 8 FMSHRC 1317,-r330 (September
1986); Loc . U. 2274, ~NWA v. Clinchfield Coal Co., 8 FMSHRC 1310, 1314
(September 1986) ("Clinchfield I"); Old Ben, supra, 7 FMSHRC at 207-09.
Relying on Ranger Fuel I, we have subsequently held that an operator's
failure to contest a section 104 withdrawal order and its later
modifications (and the operator ' .s payment of the civil penalty proposed
in conjunction with the order) foreclosed it from attacking the validity
of the order and its modifications in the compensation litigation.
Nacco, supra, 11 FMSHRC at 1238 - 39.
Underlying thes~ decisions is the recognition that the
"compensation provisions of section 111 . . . stand apart from the

370

interrelated structure for reviewing citations, orders and penalties
created by section 105. 11 Nacco, 11 FMSHRC at 1239. As we stated in
~:

The distinct purpose of section 111 is to
determine the compensation due miners idled by
certain withdrawal orders, not to provide operators
with an additional avenue for review of the validity
of the Secretary's enforcement actions. That
section 111 does not provide the basis for
collaterally attacking the validity of an order that
underlies a compensation claim is plainly revealed
by the language of section 111, which, in its first
two sentences, affords compensation "regardless of
the result of any review" of an order and in its
third sentence affords compensation "after such
order is final. 11 Thus, the Act contemplates that,
for compensation purposes, the validity of the
enforcement action upon which a compensation claim
is based is either irrelevant or has already been
otherwise established .
Id. We also emphasized that in section 105 contest proceedings the
Secretary of Labor is a party, whereas in compensation pr9ceedings only
the miners and their representative and the operator are parties, and
that requiring miners and their representative to establish the fact of
violation or the validity of the Secretary's enforcement action in the
compensation case would improperly thrust them into the Secretary's
prosecutorial role. Ranger Fuel I, 10 FMSHRC at 619; Nacco, 11 FMSHRC
at 1249-40. Accord, Int'l U., UMWA v. FMSHRC, 840 F.2d 77, 81-82 (D.C.
Cir. 1988) .
These same considerations support a consistent result here.
Section 107 is an integral component of the Secretary's enforcement
arsenal under the Act. Section 107(e)(1) specifically provides for
adjudicative review of section 107(a) imminent danger orders, and
expressly affords operators the opportunity to contest and request a
hearing on the validity of such orders within 30 days of notification
thereof. The contest and review provisions of section 107 are parallel
to the section 105 scheme for contest and review of section 104
citations and orders and related penalty proposals. Thus, as with the
relationship between section 111 and 105, we similarly conclude that
section 111 "stands apart" from the structure for reviewing imminent
danger orders created by section 107. See Nacco, 11 FMSHRC at 1239.
There is no indication in the text or legislative history of
section 111 that the compensation provisions of the Mine Act were
intended to provide operators with an additional avenue of review of, or
a platform for collateral attack on, the validity of the Secretary's
enforcement actions under section 107. Such an attack in a compensation
case, as with a similar challenge to a section 104 citation or order,
likewise would force miners and their representative to assume the
Secretary's prosecutorial role of establishing the validity of her
enforcement actions . Thus, we conclude that permitting challenges to

371

uncontested section 107 orders in section 111 compensation proceedings
would create the same kind of statutory contradictions as would be
created by allowing challenges of uncontested section 104 citations and
orders under section 111. Ranger Fuel I, supra, Nacco, supra.
Ranger, however, points to the language in section lOS(a) of the
Act providing that an uncontested proposed penalty becomes "a final
order of the Commission ... not subject to review by any court or
agency" (~, ~· Old Ben, 7 FMSHRC at 209), and argues that the
absence of s~milar language in section 107 must mean that Congress did
not intend a failure to contest an imminent danger order under section
107(e)(1) to carry the same preclusive effect.
We have observed in another section 111 case that the legal maxim
expressio unius est exclusio alterius (the express direction for
something in one provision, and its absence in a related provision,
implies an intent to deny it in the latter setting), relied on by Ranger
here , while "often ... useful ... in determining statutory meaning, .. .
is nevertheless only an aid to construction and not an invariable rule
of law." Clinchfield II, supra, 10 FMSHRC at 1502, aff'd, Clinchfield
Coal Co. v. FMSHRC, supra, slip op. at 11 - 12. In affirming our
Clinchfield II decision on this point, the D. C. Circuit observed:
The difficulty with this doctrine -- and the
reason it is not consistently applied •.. -- is that
it disregards several other plausible explanations
for an omission. The drafter (here Congress) may
simply not have been focusing on the po~nt in the
second context; and, where an agency is empowered to
administer the statute, Congress may have meant that
in the second context the choice should be up to the
agency. Indeed, under [Chevron U.S.A ., Inc. v.
NRDC, 467 U.S. 837, 842-44 (1984)], where a court
cannot find that Congress clearly resolved an issue,
it presumes an intention to allow the agency any
reasonable interpretative choice.
Clinchfield Coal Co. v . FMSHRC, slip op. at 11-12.
The legislative history makes it abundantly clear that the reason
for inclusion of the "final order" language in section 105(a) was
Congress' deep concern over what it viewed as failures in the civil
penalty system under the Federal Coal Mine Health and Safety Act of
1969 , 30 U.S . C. § 801 et seg. (1976)(amended 1977)("1969 Coal Act").
See,~ · S. Rep. No . 181, 95th Gong., 1st Sess. 40-46 (1977)("S.
Rep.") , reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Gong. , 2d Sess. , Legislative History of the Federal Mine
Safety and Health Act of 1977, at 628-34 (1978) ("Legis. Hist."). See
also Coal Employment Project v . Dole , 889 F.2d 1127, 1132 (D.C. Cir .
1989), and authorities cited. The Senate Committee largely responsible
for drafting the bill that was enacted as the Mine Act criticized the
"lengthy, and often repetitive" procedures of penalty assessment and
collection under the ±969 Coal Act and the delays occasioned thereby
and, as one of "a number of means by which the method of collecting

372

penalties is streamlined," provided in that bill that an uncontested
penalty would become a final Commission order . S. Rep. 44-45, reprinted
in Legis. Hist. 632-33. No similar legislative concern is evidenced in
the legislative history with respect to contest of imminent danger
orders. Given the distinct substantive purposes of the civil penalty
and imminent danger schemes in the Act, we can understand why a similar
"final order" provision would not be deemed necessary for section
107(e)(1). What we find most decisive, however, is that the Act plainly
reflects that the only way to challenge an imminent danger order is
pursuant to section 107(e)(1). The presence of the final order proviso
in section 105(a) does not, by itself, convince us that Congress
considered and rejected a similar remedy for section 107(e)(1). See
Clinchfield Coal Co. v. FMSHRC, slip op. at 12.
In support of its position, Ranger further contends that the
failure of the imminent danger order at issue to allege a violation on
its face is fatal to the UMWA 1 s compensation claim. We rejected the
identical argument in Clinchfield I & II (8 FMSHRC at 1314; 11 FMSHRC at
1496-98), and the D.C. Circuit has affirmed our holding. Clinchfield
Coal Co. v. FMSHRC, slip op. at 4-9.
Finally, Ranger also relies upon the disparity in the time period
allowed for an operator to contest an imminent danger order under
section 107(e)(1) (30 days) and the time provided under Commission
Procedural Rule 35 (29 C.F.R. § 2700.35) for claimants to file
compensation complaints under section 111 (90 days). Ranger asserts
that this divergence inefficiently and unfairly breeds litigation
because operators will often be forced to contest an order that could
potentially trigger a compensation claim, without notice of whether they
actually face such a claim -- particularly in the case of an imminent
danger order that itself does not cite a violation. We acknowledge that
practical complications can arise in this regard. Cf . Clinchfield Coal
Co. v. FMSHRC, slip op. at 6-7. However, we rejected similar arguments
in Nacco with respect to an operator 1 s failure to contest section 104
orders in a context of identically disparate contest periods (11 FMSHRC
at 1240), and the Clinchfield court concluded that the "awkwardness" of
having to contest an imminent danger order not citing a violation did
not outweigh the sound reasons for allowing the Secretary, as here, to
allege the underlying violation in a subsequent. enforcement action.
Slip op. at 7.
Thus, we hold that an uncontested section 107(a) imminent danger
order is final and valid on its face for purposes of section 111
compensation proceedings and, accordingly, an operator is precluded in a
compensation proceeding from contesting the validity of such an
uncontested order .
Ranger also contends that the judge 1 s finding of a causal nexus
between the imminent danger order and the bleeder violation alleged in
the relevant citation is improper and not supported by substantial
evidence . As previously discussed, Ranger 1 s failure to contest the
citation and its payment of the civil penalty proposed for the citation
result in the allegation of violation being treated as true for purposes
of this compensation proceeding. Ranger Fuel I, 10 FMSHRC at 617-20 .

373

As noted, the judge reviewed and specifically accepted as more credible
the testimony of Inspector Uhl that the bleeder system was not
functioning properly on May 2~, 1986, and that the system's failure to
dissipate the sudden inundation of methane was a contributing factor to
the imminent danger that existed. 10 FMSHRC at 1476-78. We have often
emphasized that a judge's credibility determinations may not be
overturned lightly. ~. Quinland Coals, 9 FMSHRC 1614, 1618
(September 1987). The relevant testimony of record has been summarized
above and affords substantial support to the judge's finding that the
inadequately functioning bleeder system contributed to the existence of
the imminent danger, i.e. , the excessive amount of methane in the mine.
Therefore, ·we conclude that substantial evidence supports the judge's
finding of a causal nexus between the imminent danger order and the
violation set forth in the citation.
Lastly , Ranger contests the judge's award of prejudgment interest
on the compensation found due. In Clinchfield II, we approved the award
of prejudgment interest on compensation, in appropriate cases, and
adopted the short-term Federal rate applicable to the underpayment of
taxes as the appropriate rate for both compensation and discrimination
proceedings under the Act. 10 FMSHRC at 1499- 1506 . See also 54 Fed.
Reg. 2226, supra. The D.C. Circuit has affirmed our determinations in
this regard (Clinchfield Coal Co. v. FMSHRC, slip op. at 9-13), and
Ranger's various objections to the Commission ' s award of prejudgment
interest are accordingly rejected. We modify the judge's award of
interest, however, by directing that interest be computed as provided in
Arkansas - Carbona, supra, and, as applicable, Clinchfield II and 54 Fed.
Reg. 2226.

374

III.

For the foregoing reaso~s , the judge's decision is affirmed but
his decision regarding the computation of interest is modified .

~L--C~-V~-rv

.

Richard V. Backley, Commissioner

Distribution
Hary Lu Jordan, Esq.
Joyce Hanula
United ~1ine Uorkers of America
900 15th St., N.W .
Washington, D.C. 20005
John T. Scott, Esq.
Crowell & Moring
1001 Pennsylvania Ave . , ~Lt-1.
Washington, D.C. 20004
Dennis D. Clark, Esq.
Office of the Solicitor
U.S. DePartment of Labor
4015 Wilson Blvd .
Arlington, VA 22203
Administrative Law Judge Gary Helick
Federal Hine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

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

1·1arch 21, 1990

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. LAKE 88-128-RM
LAKE 88-108-M

v.
OZARK-MAHONING COMPANY

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

DECISION

BY THE COMMISSION:
At issue in this proceeding ar1s1ng under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982)("Mine Act"), is
whether Ozark-Mahoning Company ("Ozark") violated 30 C.F.R. § 57.12016,
a mandatory underground metal-nonmetal mine safety standard requiring
deenergizing and locking out electrically powered equipment before
mechanical work is done on the equipment. 1/ Commission Administrative
Law Judge George Koutras concluded that Ozark violated section 57.12016
and assessed a civil penalty of $25. 11 FMSHRC 859 (May 1989)(ALJ).
The Commission granted Ozark's petition for discretionary review. For

11

30 C.F.R. § 57.12016 provides:
Electrically powered equipment shall be
deenergized before mechanical work is done on such
equipment. Power switches shall be locked out or
other measures 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 wotk.
Such locks or preventive devices shall be removed
only by the persons who installed them or by
authorized personnel.
376

the reasons that follows, we affirm the judge's decision.
Ozark operates the Annabel Lee Mine, an underground fluorspar mine
in Cavernrock, Illinois. An electrically-powered hoist with a skip
bucket is used to transport ore out of the mine. The hoist also is used
to transport miners up and down the mine shaft in a man cage. The skip
bucket is attached under the man cage and is approximately 4 feet high,
3 feet wide, and .3-1/3 feet long. When in use, the bucket moves up and
down the shaft with the man cage.
The hoist is operated from a control booth inside a shop building
located approximately 200 feet from the top of the shaft. The main
disconnect switch for the electric power used to operate the hoist is
located approximately 10 to 20 feet away from the control booth.
Another power switch is located on the hoist control panel inside the
control booth. The hoist is equipped with two sets of brakes,.each set
capable of holding a full load. The hoist also is equipped with a "dead
man" braking switch. Foot pressure must be applied to the "dead man"
braking switch in order to activate the hoist but, as soon as the
pressure is released, the brakes automatically set. The hoisting system
includes a control lever that must be manually engaged in order for the
hoist to move. Thus, in order for the hoist system to move, both power
switches must be energized, foot pressure must override the "dead man"
braking switch, and the control lever must be appropriately engaged.
The hoist system also ·has a manual brake lever that may be used to lock
the brakes .
On March 4, 1988, Mine Safety and Health Administration ("MSHA")
Inspector Gene Upton conducted a safety and health inspection at the
Annabel Lee Mine. Upton observed a miner inside the skip bucket using
welding equipment to patch the bottom of the skip bucket. That miner
was assisted by another miner, who was approximately five feet from the
shaft, bringing supplies to the area where the work was being performed.
The skip bucket was located "a little above the level" of the top of the
shaft while the work was being performed. Tr. 38. A hoist operator was
at the controls in the control booth. The hoist control operator could
not see the miner working inside the skip bucket but could see the
bucket itself.
Inspector Upton found that the hoisting system was still energized
because the control power switch, located inside the control booth, and
the main disconnect switch were not deenergized. Upton also found that
these switches were not locked out. However, the brakes were engaged,
the foot pedal overriding the "dead man" braking switch was not
activated, and the hoist was stationary.
·
Upton issued a citation to Ozark alleging a violation of
section 57.12016. The citation stated:
An employee was observed working in the skip under
the man cage in the main hoist shaft without deenergizing the power for the hoist and locking the
switch out. The hoist operator was sitting at the
hoist controls.

377

Upton also designated the violation as being "significant and
substantial" in nature. Ozark abated the violation within 10 minutes by '
shutting off and locking out the power switches and hoist controls.
Before the judge, Ozark argued that it did not violate section
57.12016 because it complied with the second sentence of the standard.
Ozark argued that, although it had not deenergized the hoist system (or
locked out the power switches), appropriate "other measures," within the
meaning of the standard's second sentence, prevented the hoist from
being moved without the knowledge. of the miner working on it . These
"measures" included the two sets of brakes, the "dead man" switch, the
control lever, and the control panel switch. In Ozark's view, with
these controls in place, turning the main power switch on could not
cause the hoist to move. In addition, Ozark contenqed that the hoistman
in the control booth was prohibited from starting or moving the hoist
unless he received a signal to do so with the knowledge of the person
doing the work.
The judge concluded that Ozark violated section 57.12016. He
found that the hoist was "electrically powered equipment," that the skip
bucket was a · part of the hoist, that the work being performed in the
bucket was "mechanical work," and that, therefore, the cited conditions
fell within the scope of section 57.12016. 11 FMSHRC at 868. He
construed section 57.12016 to require that the mine operator both:
(1) deenergize electrically powered equipment; and (2) lock out power
switches before any mechanical work is done on the equipment. 11 FMSHRC
868-69.
Crediting Inspector Upton's testimony, the judge found that the
main power switch located outside the hoist operator's control booth and
the second power switch located inside the control booth were neither
deenergized nor locked out during the time that work was performed on
the skip bucket. 11 FMSHRC 869-70. While the judge found "some merit"
in Ozark's argument that the the second sentence of section 57.12016
provides for an alternative method of insuring against inadvertent
energizing of the equipment while it is being worked on, short of
locking out the power switches, he concluded that "[the] language [of
the second sentence] only comes into play once the requirements found in
the first sentence for completely deenergizing the equipment [are]
complied with •••• " 11 FMSHRC at 869. Thus, according to the judge,
"any alternative 'other measures' for insuring against the inadvertent
energizing of the equipment while it is being worked on ••• may not
serve as a defense to the requirement found in the first sentence that
all such equipment be initially deenergized." Id. Accordingly, the
judge rejected Ozark's argument that there was no violation because
Ozark had complied with the second sentence of the standard. 11 FMSHRC
at 869-70. The judge also determined that the violation was not
significant and substantial and assessed a civil penalty of $25.
11 FMSHRC at 872-73, 874.
On ·review, Ozark argues, for the first time in this proceeding,
that section 57.12016 applies only to unmanned types of electrically
powered equipment . It asserts that the hoist is manned equipment with
an authorized person, a hoist operator, in charge and that, therefore,

378

the regulations at 30 C.F.R. § 57.19000 £1 seq. (Subpart R-Personnel
Hoisting) apply. Alternatively, Ozark again argues that it complied
with the second sentence of section 57.12016, thus negating any finding
of violation.
Ozark's contention that section 57.12016 is applicable only to
unmanned types of equipment was not presented to the judge. Under the
Mine Act and the Commission's procedural rules, "[e)xcept for good cause
shown, no assignment of error by any party shall rely on any question of
fact or law upon which the administrative law judge ha[s] not been
afforded an opportunity to pass." Section 113(d)(2)(A)(iH) of the Mine
Act, 30 U.S.C. 823(d)(2)(A)(iii); 29 C.F.R. 2700.70(d). Ozark has not
proffered any reason why it did not present that argument before the ·
judge, and therefore we do not address this issue.
With respect to the judge's ·construction of the cited standard, we
agree that the plain meaning of the first sentence of section 57.• 12016
requires that electrically powered equipment be first deenergized before
mechanical work is done on such equipment. The second sentence of the
standard requires appropriate measures to prevent reenergization of the
equipment without the knowledge of the individuals working on it. The
two sentences set forth conjunctive requirements, not alternative
requirements. It is undisputed that the hoist was not deenergized
within the meaning of the regulation. Tr. 10-11, 12, 19, 29, 62. We
agree with the judge that Ozark's failure to comply with the first
sentence of the standard is sufficient to sustain a finding of violation
of section 57.12016.
For the reasons set forth above, we affirm the judge's decision.

Ja:~
L. Clair Nelson, Commissioner

379

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

March 27, 1990

ODELL MAGGARD
Docket No. KENT 86-1-D

v.

CHANEY CREEK COAL COMPANY
and
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of ODELL MAGGARD
Docket No. KENT 86-51-D

v.

DOLLAR BRANCH COAL CORPORATION
and CHANEY CREEK COAL COMPANY

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

DECISION
BY:

Ford, Chairman; Backley and Lastowka, Commissioners

This consolidated proceeding involves two discrimination
complaints filed on behalf of Odell Maggard under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg . (1982)(the "Mine
Act"), and is on remand to us from an opinion of the United States Court
of Appeals for the District of Columbia Circuit affirming in part and
reversing in part our prior decision in this matter . Chaney Creek Coal
Corp. v. FMSHRC, etc., 866 F.2d 1424 (1989), rev'g in part, aff'g in
part, Odell Maggard v . Chaney Creek Coal Co., etc., 9 FMSHRC 1314
(August 1987). Both discrimination complaints allege that Mr. Maggard
was illegally discharged in violation of section 105(c)(1) of the Mine
Act, 30 U.S.C. 815(c)(l), and both are based on the same circumstances.
The first complaint (Docket No. KENT 86-1-D) was br0ught by Maggard on
his own behalf against Chaney Creek Coal Company ("Chaney Creek")
pursuant to section 10S(c)(3) of the Act, 30 U.S.C. § 815(c)(3) (n. 1
infra). The second complaint (No. KENT 86-51-D) was brought by the
380

Secretary of Labor on Maggard ' s behalf against Chaney Creek and Dollar
Branch Coal Corporation ("Dollar Branch") pursuant to section 105(c)(2)
of the Act, 30 U.S.C. § 815(c)(2). l/ The complaints allege that Chaney

l/

Section lOS(c)(l) of the Act, 30 U.S.C. § 815(c)(l), prohibits
various forms of discrimination against miners . Section 105(c)(2) of
the Act provides in relevant part:
Any miner ••• who believes that he has been
discharged, interfered with, or otherwise
discriminated against by any person in violation of
[section lOS(c)] may, within 60 days after such
violation occurs, file a conplaint with the
Secretary alleging such discrimination. If upon
such investigation , the Secretary determines that
the provisions of [section lOS(c)] have been
violated, he shall immediately file a complaint with
the Commission, with service upon the alleged
violator and the miner, applicant for employment, or
representative of miners alleging such discrimination or interference and propose an order granting
appropriate relief. The Commission shall afford an
opportunity for a hearing and thereafter shall issue
an order, based upon findings of fact, affirming,
modifying, or vacating the Secretary's proposed
order, or directing other appropriate relief. Such
·order shall become final 30 days after its issuance.
The Commission shall have authority in such
proceedings to require a person committing a
violation of this subsection to take such
affirmative action to abate the violation as the
Commission deems appropriate, including , but not
limited to, the rehiring or reinstatement of the
miner to his former position with back pay and
interest . The complaining miner, applicant, or
representative of miners may present additional
evidence on his own behalf during any hearing held
pursuant to [t]his paragraph.
30 U.S.C . § 815(c)(2).
Section 105(c)(3) states in relevant part:
Within 90 days of the receipt of a complaint filed
under [section 105(c)(2)], the Secretary shall
notify, in writing, the miner ••• of his
determination whether a violation has occurred. If
the Secretary, upon investigation, determines that
the provisions of [section lOS(c)] 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

381

Creek and Dollar Branch (collectively, "operators") unlawfully
discharged Maggard because he refused to perform certain work that he
belieyed to be hazardous. In a decision on the merits and in a
supplemental decision regarding remedies, Commission Administrative Law
Judge Gary Melick upheld the complaints, ordered Maggard reinstated with
back pay, interest and attorney's fees, denied the Secretary's motion to
dismiss Maggard's section 105(c)(3) complaint on jurisdictional grounds,
and assessed civil penalties against the operators. 8 FMSHRC 806 (May
1986)(ALJ); 8 FMSHRC 966 (June 1986)(ALJ).
The Commission granted the operators' petition for review of the
judge's decision. The Commission affirmed the judge's conclusion of
illegal discrimination. 9 FMSHRC at 1320 Further on the basis of the
Commission's decision in John A. Gilbert v. Sandy Fork Mining Co., Inc.,
9 FMSHRC 1327 (August 1987), aff'd in part, rev'd in part, Gilbert v.
FMSHRC, etc., 866 F.2d 1433 (D.C. Cir. 1989), and the opinion of the
United States Court of Appeals for the Fourth Circuit in Eastern Assoc.
Coal Corp. v. FMSHRC, 813 F.2d 639 (1987), a majority of the Commission
(Commissioners Doyle and Nelson dissented) dismissed Maggard's section
105(c)(3) discrimination complaint and vacated the judge's award of
attorney's fees. 9 FMSHRC at 1322-23.
I.

Both Maggard and Chaney Creek appealed the Commission's decision
to the D.C. Circuit. The Court affirmed the Commission's conclusions
that Chaney Creek had unlawfully discriminated against Maggard in
violation of section 105(c)(1) of the Act. 866 F.2d at 1431-32.
However, the Court reversed the Commission's dismissal of Maggard's
individual complaint. 866 F.2d at 1429-30. The Court noted that no
party had challenged before the Commission the judge's denial of the
interference in violation of [section 105(c)). The
Commission shall afford an opportunity for a hearing
••• and thereafter shall issue an order, based upon
findings of fact, dismissing or sustai'n ing 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 [section 105(c)], 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 ••. for, or in connection with, the
institution and prosecution of such proceedings
shall be assessed against the person committing such
violation ••••
30 U.S.C. § 815(c)(3).

382

Secretary's motion to dismiss Maggard's section l05(c)(3) complaint and
that the Commission had not dir~cted review of the issue sua sponte
pursuant to section 113(d)(2)(B), 30 U.S.C . § 823(d)(2)(B).
Accordingly, the Court concluded that the matter was not before the
Commission for review within the meaning of section 113(d) of the Mine
Act, 30 U.S.C. § 823(d), and that the Commission therefore exceeded its
authority in dismissing Maggard's individual complaint. 866 F.2d at
1429-30.
The Court also reversed the Commission's vacation of the judge ' s
award of attorney's fees to Maggard. The Court held that because
Maggard, without successful challenge, had prosecuted his own action
before the Commission under section 105(c)(3) of the Act , Maggard
"properly was an individual complaining party •.• entitled to attorney's
fees once he prevailed on the merits . " 866 F.2d at 1430 . In this
regard, the Court stated :
There remains a question • .• noted by Commis sioners Doyle and Nelson in dissent • . . as to
whether the fees awarded to Maggard by the ALJ were ·
reasonable, in light of the employer's claim that
some of the private counsel's work unnecessarily
duplicated work that was being done by counsel for
the Secretary . The Commission did not consider this
question because it dismissed Maggard's individual
complaint. We thus remand to the Commission for its
consideration of any issues that may exist regarding
the amount of attorney's fees that are reasonably
due to Maggard.
866 F.2d at 1430 . (emphasis in original).
Finally, the Court noted Maggard ' s argument on appeal that the
operators owed interest in addition to that awa~ded by the judge, and
the Court instructed the Commission to resolve "whether the amount of
interest calculated to be paid Maggard was correct" under the legal
formula set forth by the Commission in Secretary of Labor on behalf of
Bailey v . Arkansas-Carbona Co . , 5 FMSHRC 2042 (December 1983) . 866 F.2d
at 1432-33.
For the reasons set forth below, we reinstate the judge ' s award of
attorney's fees and remand for further proceedings with respect to the
m.a tter of interest on back pay .

II.
A.

Attorney's Fees.

The administrative law judge awarded Maggard attorney's fees of
$ 16,456.22. 8 FMSHRC at 967 - 69. As noted, the Court reversed the
Commission's conclusion that attorney's fees are not awardable in this
case and remanded for consideration of "any issues that may exist
regarding the amount of the attorney's fees that are reasonably due to
Maggard. 11 866 F. 2d at 1430 (e~phasis in original). Although the Court

383

characterized the operator's objection to the attorney's fee award as a
claim that Maggard's private counsel's work partially duplicated work
done by counsel for the Secretary, the operator's argument actually is
somewhat broader. In addition to arguing that Maggard's private
attorney's work was unnecessary and duplicative once the Secretary filed
a complaint on Maggard's behalf, the operator also argued that, if fees
are awardable, time spent by Maggard's private counsel in communicating
with the Secretary's attorney and in opposing the Secretary's motion to
dismiss Maggard's individual complaint should not be included in the
fees assessed against the operator . Petition for Discretionary Review
at 19-23; Reply Brief at 14-15. Also ~ 9 FMSHRC at 1325
(Commissioners Doyle and Nelson dissenting), cited at 866 F.2d at 1430.
The administrative law judge specifically addressed and rejected
the operator's arguments. He rejected the argument that private
·representation was unnecessary once the Secretary's complaint was filed,
finding that Maggard's section 105(c)(l) complaint was "independent" of
the Secretary's. 8 FMSHRC at 967. (The Court agreed with the judge,
finding that "Maggard['s] ••• own action [was] independent of that
brought by the Secretary" and that "Maggard was properly an individual
complaining party before the Commission ••• entitled to seek attorney's
fees." 866 F.2d at 1430). As to the operator's further arguments the
judge found that "[c]onsultation with the Secretary's counsel and the
litigation of issues surrounding the Secretary's motion to dismiss are
not unforeseeable consequences of a discriminatory action under the
Act." 8 FMSHRC at 968.

An "attorney's fee award is a matter that lies within the sound
discretion of the trial judge." -Secretary on behalf of Ribel v. Eastern
Assoc. Coal Corp., 7 FMSHRC 2015, 2027 (December 1985), rev'd in part on
other grounds, 813 F. 2d 639 (4th Cir. 1987). Here, the authorities
relied upon by the judge support his determination that Maggard's
private counsel's communications with the Secretary's counsel and
Maggard's opposition to the Secretary's motion to dismiss his private
complaint, can appropriately be included in a fee award against the
operator. Donnell v. United States, 682 F.2d 240 (D.C. Cir . 1982),
~· denied, 459 U.S. 1204 (1982); 2 Derfner Court Awarded Attorney
Fees Par. 16.02 at 16-14 n.25.1 (1989). ~!though our dissenting
colleagues cite authority arguably supporting a contrary conclusion, we
cannot say that under the remedial make-whole provisions of section
105(c) of the Mine Act the judge abused his discretion in determining
that the expenses objected to were "reasonably incurred" and were not
"unforeseeable consequences of a discriminatory action under the Act."
8 FMSHRC at 967, 968. Moreover, the litigation giving rise to the
instant attorney fee award is traceable back to and occasioned by the
underlying violative actions taken by Chaney Creek Coal against Maggard.
See Natural Resources Defense Council v. U.S. Environmental Protection
Agency, 703 F.2d 700, 713 (3rd Cir. 1983).
Accordingly, the operator's challenge to the fee award is rejected
and the judge's award is reinstated.

384

B.

Interest on back pay.

The remaining interest issue arises as a result of developments
after the issuance of our prior decision, while this .matter was pending
on appeal in the Court. The judge had awarded Maggard back pay and
interest thereon in the amount of $33,660.19. 8 FMSHRC at 966-67. The
award reflected the parties' stipulation that Maggard was entitled to
back pay through June 1, 1986, of $31,812, and interest of $1,848.19 on
the back pay to that date, computed according to the formula in
Arkansas-Carbona, supra . The Commission affirmed this award. 9 FMSHRC
at 1323. Following issuance of our decision, the operators did not pay
Maggard the backpay and interest found to be due. The Secretary
petitioned the court on Maggard's behalf for a court orde~ requiring the
operators to either pay Maggard the amount owed or place the money ·in an
interest-bearing escrow account. The operators responded that they
would place the award in an escrow account. Maggard ' s private counsel
then moved the Court to order the operators instead to pay Maggard the
amount owed plus additional interest. The operators advised the Court
that they had placed $35,523 . 37 in an escrow account and stated to the
Court that the money 11 represents the full amount due to Odell Maggard,
pursuant to the decision of the Commission. 11 Notice at 1 (February 18,
1988). '1) In turn, Maggard responded that the amount ment'ioned by the
operators represented backpay plus interest only through June 1, 1986,
and did not include interest subsequent to that date . Maggard asserted
to the Court that the operators owed an additional $4,663.50 in
interest, for a total award of $40,186.87. Maggard's Response to
Operators' Notice at 2 (March 21, 1988).
On April 19, 1988, in response to these various claims, the Court
issued an order directing the operators to pay Maggard the backpay
awarded by the Commission with "reasonable interest to be agreed upon by
the parties. 11 Order at 1. Maggard subsequently moved the Court to
modify the order to require the operators to pay interest pursuant to
the formula in Arkansas-Carbona. The operators then paid Maggard
$35,940.03, the amount deposited in the escrow account plus the interest
that had accrued thereon. However, Maggard advised the Court that the
operators owed an additional $4 , 246.84 in interest, the difference
between the total amount of interest accruing after June 2, 1986, and
the amount paid by the operators. Maggard Motion for Modification 2-6
(May 10, 1988). As noted, the Court ultimately remanded the interest
question to the Commission to determine the proper amount of interest
due. 866 F.2d at 1432-33.
In Arkansas-Carbona, noting that section 105(c)(3) of the Mine Act
expressly includes interest on back pay as a form of relief that can be
granted a discriminatee, the Commission approved the award of interest
on back pay in appropriate cases. 5 FMSHRC at 2049 . The Commission
adopted as an appropriate rate of interest the "adjusted prime rate , "
~I

That amount of back pay and interest is larger than the amount
awarded by the judge because the judge computed both wages and interest
through June 1, 1986, and Maggard was not actually reinstated until June
20, 1986.

385

then announced semi-annually by the Internal Revenue Service ("IRS")
under the then applicable version of 26 U. S. C. § 6621, and also adopted
the "quarterly method" of calculating the amount of interest due.
5 FMSHRC at 2050-54.
Following enactment of the Tax Reform Act of 1986, Pub. L. 99-514 ,
100 Stat. 2085 (1986), we reexamined the subject of an appropriate
interest rate and adopted the "short term Federal rate" as the interest
rate to be applied on both compensation awards under 30 U.S . C. § 821 and
on back pay awards in discrimination cases. Loc. U. 2274, Dist. 28,
UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493, 1504 (November 1988), ~
for review ·filed, No. 88-1873 (D.C. Cir. December 16, 1988). We further
announced that the short term Federal rate would become effective
January 1, 1987, replacing for periods commencing after December 31,
1986, use ·of the adjusted prime rate approved in Arkansas-Carbona •
.10 FMSHRC at 1504-06. In computing the short term Federal rate, we
retained the quarterly method explained in Arkansas-Carbona (5 FMSHRC at
2050-54) • . 10 FMSHRC at 1506. We also indicated that the Clinchfield
formula would apply to all cases in which decisions were issued after
the date of ·the Clinchfield opinion. 10 FMSHRC at 1505. See 54 Fed.
Reg. 2226 (January 19, 1989).
As is clear, the parties dispute the proper amount of interest due
on the back pay award. Because they have been unable to resolve this
problem through stipulation, we must remand the matter to the judge,
pursuant to the Court's remand, for any necessary further findings and,
if he determines that Maggard is due additional interest, for
calculation of the amount of the additional interest due in accordance
with the applicable principles of Arkansas-Carbona and Clinchfi eld and
the formula set forth at 54 Fed. Reg. 2226, supra.
III.

For the foregoing reasons, the judge's award of attorney's fees to
Maggard is reinstated. We also remand to the judge for necessary
findings and calculations regarding the interest due on the back pay
~ward.

386

Commissioners Doyle and Nelson, concurring in part and dissenting in part:
\~e join in the majority's ci~cision to remand this case to the
administrative law judge for a determination of the interest due
on Mr. Haggard's back pay award. i-le respectfully dissent, however,
from the majority's determination that the attorneys' fees awarded
by the judge were. reasonable and appropriate in their entirety .

In his petition for review, the operator contends that attorneys'
fees should be reduced on the grounds that a significant amount of
the time spent by Mr. Maggard's private attorney was spent on litigating issues surrounding the Secretary of Labor's Motion to nismiss
Mr . Maggard's section 10S(c)(3) action, was unrelated to the antidiscrimination purposes of the Act, and did not pertain to any
activities of the operators . Petition for Discretionary Review at
21, 23 & n . 8. We agree that Mr. Maggard is not legally entitled to
recover from the operator for time spent by his attorney on collateral
issues, i.e., for time spent by the claimant's attorney in defending
against the Secretary's Motion to Dismiss. ll
Some months after Maggard's attorney instituted the private action,
the Secretary instituted her section 10S(c)(2) action and moved to dismiss the 10S(c)(3) action . The operator did not join in or oppose
that motion. The judge found against the Secretary and allowed the
105(c)(3) action to continue. The Secretary petitioned for review of
the judge's denial of her Hotion to Dismiss and a majority of the Commission overruled the judge, found for the Secretary, and dismissed
Maggard's 105(c)(3) action. On appeal to the D. C. Court of Appeals,
Maggard contested only the retroactive application of the Commission's new Rule 40(b) . The Secretary effectively conceded that
retroactive application was not appropriate and asserted that she
was primarily concerned about the prospective application of Rule
40(b). The operator was, for the most part, a silent observer of
these machinations. The majority is of the opinion that the
operator should pay for his ringside seat. We disagree.

1/
In our earlier dissent , we stated that we would affirm the award
of attorneys' fees to the extent that they were incurred in instituting and prosecuting Mr . Maggard's discrimination claim but would disallow such fees to the extent that they were incurred in relation
to the jurisdictional issue or coordinating the prosecution of the
two cases. While the D.C. Circuit made reference to the issue we had
raised, the court characterized it and the operator's argument as a
challenge pertaining to duplication of work rather than one pertaining
to collateral issues. 866 F. 2d 1424, 1430 (D.C. Cir . 1989). I~ any
event, the court's remand requires us to consider the amount of the
attorneys' fees that are reasonably due to Maggard (Id. at 1430) and
"to resolve any disputes remaining over the reasonableness of
attorneys' fees due to Maggard." Id. at 1433. (emphasis added).

387

We are of the opinion that the majority's reliance on Ribel v.
Eastern Assoc. Coal Corp., 7 FMSHRC 2015 (December 1985). to th~
effect that-the attorneys' fee award is within the sound discretion
of the trial judge (slip op. at 5) is misplaced. In fact, Ribel was
reversed on the grounds that there was no legal basis for the award
of attorneys' fees made by the judge. Eastern Assoc. Coal Corp. v.
FMSHRC, 813 F.2d 639, 644 (4th Cir. 1987).
Similarly, its reliance on Donnell v. United States, 682 F.2d 240
(D.C. Cir • .1982) is misplaced. Donnell involved a claim for attorneys'
fees by defendant intervenors and the court held that "intervenors
may be denied fees where their participation was unnecessary in light
of the efforts of the prevailing governmental litigant". Id. at 246-7,
n. 12. The case was remanded for consideration of that is~e and of
the appellan·ts 1 specific challenges to time charges, including the
challenge to duplicative efforts. Id. at 250. The administrative law judge properly distinguished Donnell from this case because
Maggard was not an intervenor but rather had an "independent"
action. 8 BiSHRC at 96 7. JJ

Mr.

Liability for attorneys' fees is limited to those matters litigated between Haggard and the mine operator . Fees generated by the
litigation between the Secretary and }~ggard over jurisdiction under
section 105(c), a separate legal issue warranting entirely different
relief, are not appropriately assessed against the operator. See
Smith v. Robinson, 468 U.S. 992, 1015 (1984). In United Nuclear
Corp. v. Cannon, 564 F. Supp. 581 (D.R.I. 1983), the court denied
fees for time spent by the plaintiff in battling a collateral issue,

beyond the defendant's control.

"The decision to battle against it

was essentially a tactical judgment on plaintiff's part for its own
ends" (Id. at 585), much like Maggard's decision to oppose the
Secretary's Motion to Dismiss here. (emphasis added . ) In ~lor
v. Sterrett, 640 F.2d 663 (5th Cir. 1981), the court found that time
spent on a col l ateral issue should be excluded because "[a]ppellee's
opposition to intervention was irrelevant to the sval of obtaining
compliance; the attempted intervention was also a circumstance beyond
appellants' control" (Id. at 670), again much like the case here,
where Maggard's attorney opposed the Secretary's motion, not to obtain
compliance with the Mine Act's anti-discrimination provisions but to

2/
In its earlier opinion, the majority relied on Eastern Associated
Coal Corp., 813 F.2d 639, also dealing with intervention, to support
its vacation of attorneys' fees in their entirety. The court found
that case to be inapposite because "Maggard, by contrast, did
not intervene in the Secretary's action" but rather "prosecuted
his
action before the Commission under section 105(c) (3) ... "
866 F.2d at 1430.

own

388

retain control of the litigation. Fees should not be awarded against
a defendant for activities in which it did not oppose the plaintiff.
See Dubose v. Pierce, 579 F. Supp. 937, 957 (D. Conn. 1984), rev'd
and remand~d on other grounds, 761 F. 2d 913 (2d Cir. 1985) . ----The majority also concludes that the judge did not abuse his discretion when he found that consultation with, and litigation against,
the Secretary were not "unforeseeable consequences of a discriminatory
action" and hence could be assessed against the operator as attorneys'
fees. (slip op. at 5, quoting 8 TitSHRC at 968 . ) Even were the record
to support that finding, it does. not convert a wholly separate claim,
on a different issue, that requested a totally different type of relief,
into a discrimination claim. See Stickle v. Heublein, Inc. , 716 F.2d
1550, 1564 (Fed. Cir. 1983). Rather, claims for fees generated by
litigation against the Secretary are limited to those fees provided
under the Equal Access to Justice Act, 5 U.S.C. 504 .
For the foregoing reasons , we would remand to the judge with
directions to delete that portion of the claimed fee which stems from
litigation between Maggard and the Secretary •

.~o/n:;r; c/. ~
Commissioner

L. Clair Nelson
Commissioner

389

Distribution
Tony Oppegard, Esq.
Appalachian Research & Defense Fund
of Kentucky, Inc.
P.O. Box 360
Hazard, Kentucky 41701
John Chaney ·
Chaney Creek Coal Corporation
Rt. 1, Box 286
East Bernstadt, Kentucky 40729
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Gary Melick
Federal l-1ine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

390

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

Harch 28, 1990

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATI ON (MSHA)

v.

Docket No. VA 90-8

FLIPPY COAL COMPANY , INC.

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson ,
Conunissioners

ORDER

BY THE COMMISSION:
In this civil penalty proceeding ar1s1ng under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982),
Commission Chief Administrative Law Judge Paul Merlin issued an Order of
Default on March 9, 1990, finding Flippy Coal Company, Inc. ("Flippy" )
in default for failure to answer the Secretary of Labor's civil penalty
petition and the judge's order to show cause. The judge assessed civil
penalties in the amount of $1,486 as proposed by the Secretary of Labor.
For the reasons that follow, we vacate the default order and remand the
case for further proceedings.
On March 14, 1990, Flippy's bookkeeper wrote a letter to this
Commission stating that an attached letter explaining why "there should
be no penalty" had been sent to the wrong address . The attachment, a
letter from Flippy's president dated February 15, 1990, and addressed to
the Department of Labor ' s "MSHA Civil Penalty Compliance Office" in
Arlington , Virginia, contains a short and plain statement of the reasons
why Flippy disagrees with a roof support violation and a roof plan
violation alleged by the Secretary. Flippy's letter of March 14, 1990,
was received by the Commission on March 16, 1990.

The judge's jurisdiction over the case terminated when his
decision was issued. 29 C.F.R. § 2700 . 65(c) . We are treating Flippy's
March 14 letter as a timely filed petition for discretionary review
because it was received within 30 days of the judge's decision. ~.
Patriot Coal Co., 9 FMSHRC 382 (March 1987). The petition is granted.

391

The record discloses that on July 11, 1989, and on August 4 and
10, 1989, inspectors of the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued seven citations and one order to Flippy
alleging violations of various safety regulations. Upon preliminary
notification by MSHA of the civil penalties proposed for these alleged
violations, Flippy's president filed a "Blue Card" request for a hearing
before this independent Commission. On December 12, 1989, counsel for
the Secretary filed a proposal for penalty assessments, which was served
by mail on Flippy. When . no answer to the penalty proposal was filed,
the judge, on January 22, 1990, issued a show cause order directing
Flippy to file an answer within 30 days or show good reason for 'the
failure to do so. As noted, Flippy's president mailed an answer to the
Secretary on February 15, 1990. Under the Commission's rules of
procedure, the party against whom a penalty is sought must file an
answer with the Commission within 30 days after service of the proposal
for penalty. 29 C.F.R. § 2700.5(b) & .28.
Flippy appears to be a small coal company proceeding without
benefit of counsel. In conformance with the standards set forth in Fed.
R. Civ. P. 60(b)(1), the Commission has previously afforded such a party
relief where it appears that the party's failure to respond to a judge's
order and the party's default are due to inadvertence or mistake . See,
~· Kelley Trucking Co., 8 FMSHRC 1867 (December 1986); Patriot co;I
Co., 9 FMSHRC 382 (March 1987). Flippy may have confused the roles of
this independent Commission and the Department of Labor in this
adjudicatory proceeding. As noted, Flippy's Answer was apparently sent
to the Department of Labor within the time provided in the judge's order
to show cause. In light of these considerations, we believe that the
operator should have the opportunity to present its position to the
judge. ~.Amber Coal Co., 11 FMSHRC 131-32 (February 1989).

392

For the foregoing reasons, the judge's default order is vacated
and the matter is remanded to the judge, who shall determine whether
final relief from default is appropriate. See, ~, Doug Connelly Sand
& Gravel, 9 FMSHRC 385 (March 1987).

Richard V. Backley, Commissioner

Distribution
Ruby H. Cyphers
Flippy Coal Company
106 Suffolk Avenue
Richlands, Virginia

24641

Javier I. Romanach, Esq.
Dennis D. Clark, Esq.
Office of the Solicitor
U.S. Deoartment of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Chief Administr~tive Law Judge Paul Herlin
Federal Nine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

393

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

March 29, 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 89-50-M

v.
MORGAN CORPORATION

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners
ORDER

BY THE COMMISSION:
In this civil penalty proceeding ar1s1ng under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982)("Mine Act"
or "Act"), counsels for the Secretary of Labor and.Morgan Corporation
("Morgan") have filed with the Commission a Joint Motion to Approve
Settlement. For the following reasons, the parties' settlement approval
motion is granted and this matter is dismissed.
On February 16, 1990, we granted Morgan's petition for
discretionary review of a decision of Commission Administrative Law
Judge George A. Koutras, concluding that Morgan had violated 30 C.F.R.
§ 56.9005 (1988) and assessing a civil penalty of $1,000 . 00.
12 FMSHRC
40 (January 1990)(ALJ) . On March 28, 1990, the Secretary and Morgan
filed the Joint Motion to Approve Settlement.
The parties note that section 56.9005 was superseded on
October 24, 1988, by currently applicable 30 C.F.R. § 56.14200. 53 Fed.
Reg. 32496, 32514 (August 25, 1988). The parties emphasize that under
these circumstances, an adjudicative interpretation of section 56.9005
would have no precedential value in the Secretary's future enforcement
.efforts or in regulating Morgan's future conduct. They further state
that Morgan has raised substantial questions concerning the proper
interpretation of section 56.9005 and whether it violated the standard.
The Secretary also seeks settlement because of her desire to use most
effectively her limited resources . Accordingly, the Secretary and
Morgan request approval of their settlement, including vacation of the
citation and assessed penalty, vacation of the Commission's direction
for review, and dismissal of the proceeding.
Oversight of proposed settlements of contested cases is an
important aspect of the Commission's adjudicative responsibilities under
the Mine Act (30 U.S.C. § 820(k)) and is, in general, committed to the
Commission's sound discretion. See,~· Pontiki Coal Corp., 8 FMSHRC
394

668, 674-675 (May 1986). The Commission has granted motions to vacate
citations and orders and to dismiss review proceedings if "adequate
reasons" to do so are present. ~. Southern Ohio Coal Co., 10 FMSHRC
1669, 1670 (December 1988), and authorities cited ("SOCCO").
We conclude that adequate cause exists to grant the parties'
motion. As the prosecutor charged with enforcement of the Act, the
Secretary has determined that she should seek dismissal of this
proceeding, particularly in view of the replacement of the cited
standard by a new and differently worded standard. The operator joins
in the motion and has not asserted that it would be prejudiced by
dismissal. No other reason appears on this record as to why the motion
should not be granted. See, ~· SOCCO, supra, 10 FMSHRC at 1670.
· Therefore, upon consideration of the motion, it is granted.
Morgan's petition for review is dismissed. The underlying citation and
the assessed civil penalty are vacated. Our direction for review is
also vacated and this proceeding is dismissed.

~~ ·

/~~~Pj__

Richard V. Backley, Commissioner

395

Distribution
Carl B. Carruth, Esq.
McNair Law Firm, P.A.
1301 Gervais ,Street
P.O. Box 11390
Columbia, South Carolina

29211

Dennis D. Clark, Esq.
Eva L. Clark, Esq.
Office of ~he Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge George Koutras
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

396

ADMINISTRATIVE LA\v JUDGE DECISIONS

.

t

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

MAR 1 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.
.

CIVIL PENALTY PROCEEDING

:

Greenwich Collieries No. 2

.

v.

Docket No. PENN 89-75
A.C. No. 36-02404-03744

ROCHESTER & PITT.SBURGH COAL
COMPANY,
Respondent
DECISION
Appearances:

Before:

Linda M. Henry, Esq., Office of the Solicitor,
u.s. Department of Labor, Philadelphia, PA,
for the Petitioner;
Joseph A. Yuhas, Esq., Rochester and Pittsburgh
Coal Company, Ebensburg, PA, for the
Respondent.

Judge Fauver

The Secretary seeks a civil penalty for an alleged
violation under § llO(a) of the Federal Mine Safety and
_Health Act of 1977, 30 u.s.c. § 801 et seg.
The same citation was involved in Docket NO. PENN 88-194-R,
a contest proceeding, in which the parties stipulated that this
civil penalty case be adjudicated along with the notice of
contest. After the hearing, the contest case was decided,
affirming the citation and assessing a civil penalty of $78.
The civil penalty case was STAYED pending review by the
Commission of the contest decision.
The Commission decided the contest case on February 21,
1990, affirming the judge's decision.

397

ORDER
WHEREFORE IT IS ORDERED that:
1.

The STAY in this case is LIF·rED .

2. Respondent shall pay the assassed civil penalty of
$78 within 30 days of this Decision.

tf}d,t.~
1-'AMv~
William Fauver
Administrative Law Judge
Distribution:
Linda M. Henry, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
Joseph A. Yuhas, Esq., Greenwich Collieries, P.O. Box 367,
Ebensbllrg, PA 15931 (Certified Mail)
iz

398

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

MAR 1 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner

v.
VP-5 MINING COMPANY,
Respondent

.
.
.

.

Docket No. VA 89-56
A.C. No. 44-03795-03592

.

VP-5 Mine

CIVIL PENALTY PROCEEDING

DECISION
Appearances:

Before:

Javier Romanach, Esq., Office of the Solicitor,
u.s. Department of Labor, Arlington, Virginia
for Petitioner;
Marshalls. Peace, Esq., Assistant General
Counsel, Peabody Coal Company, Lexington,
Kentucky, for Respondent.

Judge Melick

This case is before me upon the petition for civil
penalty filed by the Secretary of Labor pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.s .c . § 801 et seq., the "Act," charg.i ng the VP-5 Mining
Company (VP-5) with 10 violations of the regulatory standard
at 30 C.F.R. § 50.20(a). The general issues before me are
whether VP-5 violated the cited regulatory standard and, if
so, the appropriate civil penalty to be assessed in
accordance with section llO{i) of the Act.
At hearing the Secretary moved to vacate Citation Nos.
2760925, 2970940, 2970922 and 2971927 for the reason that
those citations were controlled by the Commission decision in
the case of Secretary v. Garden Creek Pocahontas Company,
11 FMSHRC 2148 <1989). The Secretary further moved to vacate
Citation No. 2971939 on the grounds that she cannot prove
that the miner suffering the alleged eye injuries actually
used the prescribed medication.
The parties also moved for approval of a settlement
agreement regarding Citation Nos. 2971928, 2971932, 2971935
and 2971936 in which Respondent agreed to pay the proposed
penalties of $80 in full.
I have considered the
representations and documentation submitted herein and

399

conclude that the proffered settlement is appropriate under
the criteria set forth in section llOCi) ot the Act.
Accordingly an appropriate •.9rder wil}:M be incorporated in this
decision setting forth the · terms;, of'. payment.
The citation remaining at issue, No. 2971929, alleges a
violation of the regulatory standard at 30 C.F.R. S 50.20(a)
and charges as follows:
The operator failed to report to MSHA on Form
7000-1 an occupational injury as required by
50.20(a) of C.F.R. Employee Curtis Osborne
incurred an injury on June 30, 1987, and returned
to work on July 3, 1987, resulting in one lost work
day.
30 c.F.R.
follows:

§

50.20Ca> provides in relevant part as

Each operator shall maintain at the mine office a
supply of MSHA mine accident injury and illness
report Form 7000-1 ••• each operator shall report
each accident, occupational injury or occupational
illness at the mine ••• the operator shall mail
completed forms to t-1SHA within 10 working days
after an accident or occupational injury occurs or
an occupational illness is diagnosed.
30 C.F.R.

§

50.2(e) provides that:

[o)ccupational injury" means any injury to a miner
which occurs at a mine for which medical treatment
is a~~inistered, or which results in death or loss
of consciousness, inability to perform all job
duties on any day after an injury •••
The term "injury" is not further defined in the
regulations.. However the ordinary meaning of the term
"injury" is "an act that damages, harms or hurts"; or "hurt,
damage, or loss sustained . " Secretary v. Freeman United Coal
Mining Company, 6 FMSHRC 1577, 1578-1579 (1984), quoting from
Webster's Third New International Dictionary (Unabridged)
1164 ( 19 77). In the Freeman case, a miner developed back
pains while putting on his work boots before entering the
mine. There was no showing that he had suffered any work
rel~ted mishap.
The miner was hospitalized and did not work
for 13 days. The Commission ruled in Freeman that the
Secretary did not have to prove that the miner's back injury
was related to his work, only that it occurred at the job
site. In this regard the Commission stated:

400

The remainder of the definition in section 50.2(e)
refers only to the location where the injury
occurred ("at a mine .. ), and to the result of an
injury ("medical. treatment, death,"etc.). Thus,
sections 50.2(e) and 50.20(a), when read together,
require the reporting of an injury if the injury a hurt or damage to a miner - occurs at a mine and
if it resu.Lts in any of the -specified serious
consequences to the miner. These regulations do
not require a showing of a causal. nexus.
6 FMSHRC at 1579.
It is not disputed in this case that Curtis Osborne, a
1niner working at the VP-5 mine on June 30, 1987, suffered
pain in his lower back after exiting the cage and as he was
walking toward the bottom of the mine. Osborne testified
as follows:
I remember getting off the cage, and I was walking
over towards the bottom, on the shop-side of the
cage. And a pain hit me in my lower back.
It is further undisputed that Osborne was unable to work
the next workday because of this back pain and that VP-5 did
not file the MSHA Form 7000-1 within 10 days of the onset of
tt:lis back pain.
Contrary to VP-5's suggestion in its brief, the
Commission did not set torth a requirement in the Freeman
decision that an "act" must precede the "hurt, damage or loss
sustained" in order to establish that an "injury .. occurred.
It is apparent in any event that the miner herein incurred a
"hurt, damage or .Loss sustained" whi.Le engaged in the act of
walking in the VP-5 underground mine.
Under the circumstances I find that the Secretary has
sustained her burden of proving that Mr. Osborne, a miner,
suffered a "hurt" or "damage" in a mine within the context of
the Freeman decision and that he therefore suffered an
occupational injury under 30 C.F.R. § 50.2(e). Accordingly
VP-5 had the responsibility under the cited regulatory
standard to report the injury within 10 days of its
occurrence. Its failure to do so constitutes a violation as
charged.
Since the law on this point has been clearly established
since at least the 1984 Freeman decision, VP-5 was grossly
negligent in failing to have reported the injury in this case.
Considering all of the criteria under section llO(i) of the
~ct I conclude that a civil penalty of $150 is appropriate
for this violation.

401

ORDER

k.

VP-5 Mining Company is directed to pa~•.,ci11il penalties
totalling $230 within 30 days of the date of~~his decY~ion.

V\

Lry2~lick
Adrni · istrative

· \~

Distribution:
Javier I. Rornanach, Esq., Office of the Solicitor, u.s.
Department of Labor, 4015 Wilson Boulevard, Room 516,
Arlington, VA 22203 (Certified Mail)
MarshallS. Peace, Esq., Assistant General Counsel, 250 West
Main Street, P.O. box 11430, Lexington, KY 40575 (Certitied
Mail)
nt

402

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE Of ('OMINISTRATIVE LAW JUDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR 2 1990 .
BETH ENERGY MINES, INC.,
Contestant

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

..
.
.
.

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

CONTEST PROCEEDING
Docket No. PENN 88-149-R
Order No. 2941672; 2/4/88
Livingston Portal
Eighty Four Complex
Mine I.D. #36-00958
CIVIL PENALTY PROCEEDING
Docket No. PENN 88-197
A.C. No. 36-00958-03727

v.

Livingston Portal
Eighty Four Complex ·

BETH ENERGY MINES, INC.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 89-154
A. C. No. 36-00958-03767 A

v.

Livingston Portal
Eighty Four Complex

SAMUEL J. KUBOVCIK,
EMPLOYED BY
BETH ENERGY MINES, INC.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. PENN 89-155
A.C. No. 36-00958-03769 A
Livingston Portal
Eighty Four Complex

JOHN RONTO,
EMPLOYED BY
BETH ENERGY MINES, INC.,
Respondent

403

CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE S~FETY AND HEALTH
ADMINISTRATION,
Respondent

Docket No . PENN 89-156
A.C. No. 36- 00958 - 03727

v.

Livingston Portal
Eighty Four CompleK

JAMES NUCCETELLI,
EMPLOYED BY
BETH ENERGY MINES , INC .,
DECISION
Appearances:

Before:

R . Henry Moore , Esq. , Buchanan Ingersoll , P.C.,
Pittsburgh, Pennsylvania for Beth Energy Mines,
Inc., Samuel J. Kubovcik , James Nuccetelli and
John A. Ronto;
James B. Crawford, Esq., Office of the
Solicitor , u.s. Department of Labor , Arlington ,
Virginia for the Secretary of Labor .

Judge Melick

Dockets No. PENN 88 - 149-R and PENN 88 - 197
These consolidated cases are before me under
section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq., the " Act," to challenge Order
No. 2941672 issued by the Secretary of Labor pursuant to
section 104(d)(2) of the Act against Beth Energy Minas, Inc.,
(Beth Bnergy) and for review of civil penalties ~reposed by
the Secretary for the violation alleged therein._/
~/Section 104(d) of the Act reads as follows:

(1)

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 haalth
hazard, and if he Einds such violation to be caused
by an unwarrantable failure of such ooerator to
comply with such mandatory haalth or ;;afety

404

As amended at hearing, Order No. 2941672 alleges a
"significant and substantial" violation of the regulatory
standard at 30 C.F.R. § 75.303 and charges as fellows:
Representative [sic] of the operator (foreman) had
a miner remove a danger-board and go inby at
No. 79 to 80 cross-cut 4 butt track-haulage, to
bring in 20 empty cars under "I" Beams that were
not straped [sic] or saddled. Then proceed to come
back through area second time with motor, and
rehung the danger-board. This violation occurred
on January 31, 1988.
The cited standard reads in part as follows:
If such mine examiner finds a condition which
constitutes a violation of a mandatory health or
safety standard or any condition which is hazardous
to persons who may enter or be in such area, he
shall indicate such hazardous place by posting a
"danger" sign conspicuously at all points which
persons entering such hazardous place would be
required to pass, and shall notify the operator of
cont'd fn.l
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
issuan-ce 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 op~rator 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.
(2)

If a withdrawal order with respect to any area in a
coal or other mine has been issued pursuant to
paragraph (1), a withdrawal order shall promptly be
issued by an authorized representative of the
Secretary who finds upon any subsequent inspection
the existence in such mine of violations similar to
those that resulted in the issuance of the
~ithdrawal order under paragraph (1) until such
time as an inspection of such mine discloses no
si1nilar violations. Following an inspection of
such mine wnich discloses no similar violations,
the ~revisions of paragraph (1) shall again be
appl1cable to tnat mine.
405

the mine. No person, other than an authorized
representative of the Secretary or a State mine
inspector or persons authori-zed by the operator to
enter such place for the purpose of eliminating the
hazardous condition therein, shall enter such ~lace
while such sign is so posted.
At hearing the Secreta~y maintained that the violation
occurred in this case when construction foreman John Ronto
autho~ized the removal on January 31, 1988, of a dange~ sign
and danger tag at the No. 53 tr9lley switch thereby allowing
a miner to pass into the area so "dange~ed off". While the
Secretary acknowledges that Mr. Ronto, a certified assistant
mine foreman, was also a qualified mine examiner and was
therefore authorized to remove such signs if he found no
violation or hazard he did so unlawfully in this case because
both a hazardous condition and a violation of a mandatory
safety standard continued to exist at this time within the
"dangered off" area.2/
Summary of the Evidence
On January 30, 1988, around 2:00 or 3:00 p.m.,
Donald Rados, a Beth Energy Mina Examiner, discovered five
unsaddled beams in the 4-butt empty track area near the No.
80 stopping. According to Rados it was the uniform practice
at the subject mine to saddle beams placed in haulageways
immediately after installation of beams or, at the
latest, before traffic was permitted in the area. Rados
observed that the roof in the cited area was in bad shape.
He thought the area was particularly dangerous because it had
a history of de~ailments and indeed he had previously
reported these types of dangerous conditions in the "Fire
Boss" books in the past. According to Rados derailments
could occur with a locomotive pushing the cars and the cars
could be pushed as much as 100 feet before the locomotive
operator might notice the derail~ent.
2; At the conclusion of the Secretary's
case-In-chief a motion to vacate the Section l~4(d)(2)
withdrawal order was made on the grounds that .the
Secretary failed to p~oduce any evidence of the absence
of an intervening clean inspection following the
issuance of the precedential Section 104(d)(l) Order.
See United Mine workers of America v. FMSHRC 768 F.2d
1477 (D.C. Cir. 1985). The motion ~as granted and the
order was accordingly ~odified to a citation under
.Section 104(d}(l) of the Act. See Footnote 1 suora.

406

Rados accordingly "dangered" the area off by placing a
danger sign at the mouth of the empty track off the main
haulage and by placing a danger tag on the trolley switch .
According to Rados such danger signs mean that no one is to
enter the "dangered" area except those "authorized by law".
Rados, following company procedures, then warned the
dispatcher not to send empty cars into the danger area and
advised one of the "bosses" of the "dangered off" area.
Rados also made a written entry in the mine examiner's book
warning of the danger (See Exhibit G-3).
John Ronto was construction foreman on the 12:01 a.m.
shift on January 31, 1988, with a 4-man crew. He too was a
certified mine examiner. Together with his supervisor,
acting shift foreman Sam Kubovcik, he learned that coal on
the belt was hindering the work of a subcontractor. Kubovcik
later called Ronto directing him to obtain some empty rail
cars stored in the 4-Butt area to use to remove the coal from
the belt . According to Ronto, KuQovcik advised him that
unsaddled beams · were in the 80 Stopping area and that whoever
Ronto sent to obtain the empty rail cars should be so warned
and should proceed with caution.
Ronto thereupon directed two locomotive operators to
meet him at the 4-Butt dump area. Ronto testified that he
then proceeded to the 80 Stopping, examining the roof, the
beams, the legs, and the track clearance and condition.
Ron·t o struck each leg with a hammer and checked its alignment
and clearance . According to his testi1nony Ronto found the
track to be in good shape and dry and clean. Ronto testified
that he also measured between the tracks and the posts and
found what he deemed to be ample clearance on both sides .
Ronto then proceeded to the dump to wait -for the locomotive
operators .
Ronto later received a call from the locomotive
operators inquiring about the danger sign. Ronto told them
"everything was O.K." and that they were to bring in the
empty cars. Ronto remained in the area to give directions.
He estimated the speed of the locomotive and cars to be not
more than one or two miles per hour. After the cars had been
removed and the track mounted Fletcher returned to the area,
the miners asked Ronto what to do with the danger sign.
Ronto believed that he responded "let's put everything back
the way we found it". According toRonto the danger sign was
replaced "possibly" over concern about the unstrapped beams.
Ronto testified that he did not believe there was
"considerable danger" but nevertheless left the danger sign
as a caution to people who might not otherwise know of the
conditions. Ronto acknowledged that he did not make any

407

entry in the mine examiner's book that the dangerous
conditions previously reported ~y Mine Examiner Rados had at
any time been eliminated.
MSHA Coal mine inspector Alvin Shade received a request
to investigate the alleged violation on February 4, 1988,
pursuant to section 103(g)(l) of the Act. Shade later
interviewed witnesses and examined the subject area of the
mine. The previously dangered area consisted of 5 "I" ~earns
set on 8 inch by a inch posts over a 20 foot area. The beams
had been ·strapped by the time of his examination on February
4. Shade concluded that indeed a hazard had been presented
by such beams e~isting without strapping and that it was a
"significant and substantial" violation of the cited standard.
Shade believed that if any of the posts should have become
dislodged by a rail car it could have caused the beam to fall.
He observed that bolts were in the roof area but the roof was
sagging and needed the support of the additional beams.
Shade concluded that the condition could have resulted in a
lost time accident.
Shade also concluded that the violation was the result
of high negligence, aggravated conduct and "unwarrantable
failure" for the reason that Construction Foreman Ronto
replaced the danger sign upon his departure from the dangered
off area. Shade believed that this act was an admission by
Ronto that he knew a danger continued to exist throughout the
time the empty cars were removed.
James Nuccetelli was acting chief construction foreman
at the Beth Energy Eighty Four Mine on January 30 and 31,
1988. According to Nuccetelli the beams had been installed
in the cited area on the 12:01 a.m. shift on Saturday,
January 30, 1988, because of reports from fire bosses that
the roof was getting "heavy". The beams were to be saddled
on the Sunday, January 31, day shift. Nuccetelli agreed that
the Beth Energy Roof Control Plan did in fact require
saddling of the beams but contends that they had a
"reasona.ble time" to accomplish this task. Nuccetelli
observed that according to past practices they had been given
up to 4 days to strap beams on even the main haulage area
where there is more activity. According to Nuccetelli,
these practices had been permitted over the years ~Y MSHA
inspectors. Nuccetelli also disagreed with Rados' conclusion
t~at the unsaddled beams posed a danger but he, like Ronto,
d1d not seek to overturn Rados' posting of the danger signs
and reporting of hazardous conditions in the Mine Examiner's
booics.
On the morning of January 31st Nuccetelli purportedly
warned shift toreman Kubovcik that the beams were not saddled

408

and told him to check the safety of the area in question
before obtaining the empty cars -.
Acting Shift Foreman Sam Kubovcik testified that he was
called early on the shift concerning the need to remove coal
from the belt. Nuccetelli told him to have Ronto inspect the
4-Butt area empty track and to remove the empty cars but
since the beams had not been saddled, only if he determined
the area was safe.
Based upon Rente's opinion, Kubovcik also
coined that there was no hazard at that time. Kubovcik also
c~ntends that they \'lere permitted a "reasonable time'' to
strap the beams.
Ronald Bizick a mine inspector for the Beth Energy Eighty
Four Mine, testified that he could not recall any injuries at
the mine caused by unstrapped beams falling.
He also
testified that he knew of MSHA inspectors who had themselves
traveled beneath unsaddled beams in the main haulageway of
the mine without having cited that condition.
James Gallick, Director of Safety and Environmental
Health for Beth Energy, is "responsible for reviewing its
roof control plans. It was Gallick's understanding that
beams in the Eighty Four mine need only be strapped \oli thin a
"reasonable time". He believed that a "reasonable time"
meant until the next idle shift follow~ng the installation of
the beams--which could be up to five days later. Gallick
acknowledged however that even after the dispute in this case
arose there had been no effort to amend the roof control plan
to specify the time within which beams must be strapped. It
was also Gallick's opinion that only "imminent dangers" need
be dangered off and reported ·as a danger in the mine
examiner's book. Although Gallick had never observed the
conditions cited in this case it was his opinion that no
"imminent danger" existed. Gallick also concluded that it
was not reasonably likely for an accident to occur in the
cited area based on his understanding that no injuries have
ever occurred at Beth Energy mines as a result of a displaced
beam.
In rebuttal, Alfred Paterini, a Beth Energy mine
examiner for the previous 13 years, testified that it had
been the practice at Beth Energy mines to strap beams on the
same st1ift or the shift immediately following installation.
According to Paterini it had also been the practice at
Beth Energy where beams had not been strapped, for
t~ansportation to be provided .up to the affected area and for
m1ners to then be routed around the unstrapped beams.
Patarini also recalled that there had been derailments in the
cited area on several occasions and that he had been sent to

409

reset legs under beams displaced by derailments in that
particular area.
Also in rebuttal, Mine .Examiner Donald Rados testified
that indeed an "imminent danger" existed in the cited entry
when he dangered it off. When dangering the area off he put
up a tag and 2-brattice boards across the empty track and
erected a danger sign on the barrier.
Evaluation of the Evidence
In determining whether a violation existed in this case
it is necessary to decide whether at the time Foreman
John Ronto had the cited danger sign and danger tag removed,
and at the time of the entry of the locomotive operator into
the previously "dangered off" area there then continued to
exist either a violation of a mandatory health or safety
standard or a hazard in that area within the meaning of
30 C.F.R. § 75.303. I find in this case that both a
violation of a mandatory safety standard (i.e. a violation of
the Roof Control Plan) and a hazard of a significant nature
continued to exist at that time. Since Ronto would have been
authorized to remove the danger signs only if there was no
hazard and no violation of a mandatory health or safety
standard he was in clear violation of the cited standard in
authorizing and directing that danger tag and sign to be
removed.
The Secretary maintains in this case that the following
provisions of the Beth Energy Roof Control Plan were
violated:

19.

On haulageways, all cross bars or beams shall
be installed with some means of support that will
prevent the beam or cross bar from falling in the
event the supporting legs are accidently dislodged.
It is undisputed that at the time Ronto authorized entry
into the dangered-off area the beams at issue had in fact not
been "installed with some means of support that will prevent
the beams or cross bar from falling in the event the
supporting legs are accidently dislodged". Beth Energy and
its agents argue however that this Roof Control Plan
requir~ment that "beams shall be installed with some means of
support" actually 1neans that the support may be installed up
to five days after the beams themselves are installed. I
disagree. The Roof Control Plan could not be more clear and
unambiguous in requiring that the means of support must
be provided at the same time the beams are installed. If
indeed it '.flas the intent of the parties to allow "five days"

410

or "until the next idle shift" or for some other "reasonable
time" for installation of the support after the beams
themselves are installed, the Plan could easily have so
provided. Thus it is clear that a violation of a mandatory
standard (30 C.F.R. § 75.220} existed at the time Foreman
Ronto authorized· the removal of the danger sign and tag and
accordingly directed the commission of a violation of the
regulatory standard at 30 C.F.R. § 75.303.
The testimony of experienced mine examiner .Don Rados
is also credible and is sufficient in itself to support a
finding that a significant hazard continued to exist at the
time Foreman Ronto authorized and directed removal ot the
danger tag and sign. This testimony is fully corroborated by
that of the experienced MSHA Inspector, Alvin Shade. Even
Ronto himself acknowledged that although the conditions did
not pose a "large hazard" and they were "not a considerable
danger" a "caution to people" was nevertheless warranted.
For this additional reason then it is clear that a violation
of 30 c.F.R. § 75.303 was committed by Ronto.
The evidence also. supports the "significant and
substantial" findings in the citation at bar.
In order to
find a violation "significant and substantial" the Secretary
has the burden of provin.9 an underlying violation of a
mandatory safety standard, a discrete safety hazard (a
measure of danger to safety} . contributed to by the
violation, a reasonable likelihood that the hazard
contributed to will result in an injury, and a reasonable
likelihood that the injury in question will be of a
reasonably serious nature. Mathies Coal Co.,
6 FMSHRC 1 (1984}. Here I have found · that there was indeed a
violation of the mandatory safety standard at 30 C.F.R.
§ 303(a), and that a discrete safety hazard i.e. exposure of
miners to the hazard of falling beams, was contributed to by
the violation.
I further find it reasonably likely that the
hazard of falling beams would have resulted in an injury and
that it was reasonably likely that resulting injuries would
be reasonably serious or fatal.
Whether the violation was the result of the
"unwarrantable failure" of Beth Energy to comply with the law
depends on whether it was the result of aggravated conduct
constituting more than ordinary negligence. Emery Mining
Corp., 9 FMSHRC 1997 (1987} app~al pending (D.C. Cir. No.

411

88-1019>. In the Emery case the Commission compared ordinary
negligence (conduct that is inadvert~nt, thoughtless, or
inattentive) with conduct that is not justifiable or
excusable. On the facts of this case I conclude that the
conduct of the operator's agents in authorizing the removal
of the danger tag and sign and permitting an employee to remove
rail cars from the "dangered off" area (and where the facts
constituting a hazard and a violation of the Roof Control
Plan were then known to the operator's agents) constituted
such aggravated conduct as to meet the definition of
"unwarrantable failure". Indeed the conduct of the
operator's agents, Ronto, Kubovick and Nuc·~etelli, was so
aggravated that it constituted violations of Section llO(c)
of the Act. For the same reasons noted, infra, this conduct
also constitutes "unwarrantable failure". Considering the
criteria under section llO(i) of the Act I find that a civil
penalty of $1,000 is appropriate.
Finally, Beth Energy's claims herein that a
Section 104(d) violation cannot be based upon an
after-the-fact investigation are rejected. Secretary of
Labor v. Emerald Mines Co., 9 FMSHRC 1590 (1987), aff'd
863 F.2d 51 (D.C. Cir. 1988).
Docket Nos. PENN 89-154, PENN 89-155, and PENN 89-156
The·se cases are before me upon the petitions for civil
penalties filed by the Secretary pursuant to section llO<c>
of the Act charging Samuel Kubovcik, John Ronto and James
Nuccetelli as agents of the corporate mine operator
(Beth Energy> with knowingly authorizing, ordering, or
carrying out the corporate mine operator's violation of the
mandatory standard at 30 C.F.R. § 75.303 as charged in
Citation No. 2941672 previously upheld in this decision.
Section llO(c) of the Act provides in part of follows:
Whenever a corporate operator violates a mandatory
health or safety standard ••• ,any director,
officer or agent of such corporation who knowingly
authorized, ordered, or carried out such violation,
failure, or refusal shall be subject to the same
civil penalties, fines and imprisonment that may be
imposed upon a person under Subsection (a) and (d).
There is no dispute in this case that each of the three
named Respondents were, at the time of the alleged violation,
agents of Beth Energy. Upon the credible evidence before me
I find that all of the cited agents "knowingly ~uthorized,
ordered, or carried out" the violation charged in this case.
Mssrs. Ronto, Nuccetelli and Kubovcik all acknowledge that

412

when they issued orders to obtain the empty cars from the
dangered- off area they were fully aware of the requi r ements
of the Roof Control Plan including the requirement that
"beams shall be installed with some means of support" . It is
undisputed moreover that they were also then aware of the
fact that the cited beams were without support and that the
area had been legally "dangered- off " by a qualified mine
examiner pursuant to 30 C. F.R. § 75 . 303. Since the language
of the Roof Control Pl an is clear and unambiguous in its
requirement that the means of support be i nstalled
contemporaneous with the installation of the beams it may
.reasonably be inferred tha t they "know i ng l y authorized [and ]
ordered" the violation herein . Thei r self serving claims
t hat the Roof Contr ol Pl a n gr anted them a " reasonabl e ti me "
of up to five days to suppo rt the beams by strapping or
saddling are without credible legal or fact?al basis.
Under the circumstances the Secretary has sustained her
burden of proving that the three agents of the operator cited
herein were in violation of Section llO<c> of the Act .
Considering the .relevant criteria under Section llO(i) of the
Act I find that penalties of $400 each are appropriate .
ORDER
Order No . 2941672 is modified to a citation under
Section 104(d)(l) of the Act and Beth Energy t-iines , Inc. , is
directed to pay a civil penalty of $1 , 000 within 30 days of
the date of this decisio n. John A. Ronto , ~ames Nuccetell i
and Samuel Kubovcik are in violation of Sec ion l lO(c) ~ of the
Act as charged and are directed to pay a ci il penalty,of
$400 each within a 30 days of th\ate of t is d~cisiorl .

.

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Admin~s~rative

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Judge

(703) ~i6-626l

Distribution:
R. Henry Moore , Esq . , Buchanan Ingersoll, 600 Grant Street ,
58th Floor, Pittsburgh , PA 15219 (Certified Mail)
James B. Crawford , Esq ., Office of the Solicitor , u.s .
Department of Labor , 4015 Wilson Boulevard, Room 516 ,
Arlington , VA 22203 (Certified Mail)
nt

413

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

MAR 8 1990
MICHAEL P. DAMRON,
Complainant

v.

REYNOLDS METALS COMPANY,
Respondent

.
..

DISCRIMINATION PROCEEDING
Docket No. CENT 89-131-DM
Sherwin Plant

DECISION
Appearances:

Before:

Michael LaBelle, Esq., Powers and Lewis,
Washington, D.C., for Complainant;
Jean w. Cunningham, Esq., Richmond, Virginia,
for Respondent.

Judge Broderick

STATEMENT OF . THE CASE
Complainant contends that he was discharged by Reynolds
Metals Company (Reynolds), on September 7, 1988, from his job as
a hydrate area helper because he refused to perform work that he
reasonably and in good faith believed to be dangerous, and that
his refusal was protected under the Federal Mine Safety and
Health Act of 1977 (the Act). Reynolds contends that Complainant
was discharged for failure to obey a direct order, and that the
task he was ordered to perform was not dangerous. Pursuant to
notice; the case was heard on November 28 and 29, in
Corpus Christi, Texas. Richard W. Spencer, Robert H. Lehman,
Dalma Edward Rogers, Pete Zamora, Guy Asher, Paul Bucey,
Michael P. Damron, and Bobby Tucker testified on behalf of
Complainant. Thomas Glenn Reynolds, Arlon Boatman,
Amos Stanley Millsap, Kennedy Wayne Haley, Bobby Joe Sasser and
Darrell M. Harriman testified on behalf of Reynolds. Both
parties have filed post hearing briefs. I have considered the
entire record and the contentions of the parties, in making the
following decision.
FINDINGS OF FACT
At all times pertinent to this proceeding Reynolds was the
owner and operator of an alumina plant in Corpus Christi, Texas,
known as the Sherwin Plant. The plant processes bauxite into
aluminum ore, called alumina.

414

Prior to September 7, 1988, Complainant was employed as a
laborer at the Sherwin plant for more than 9 years. In 1988, he
worked as a hydrate area helper. Among the duties to which he
was assigned was the operation of a ball mill -which pulverized
scale coming from the precipitation area. The scale, taken from
the alumina tanks, is fed on to a conveyor belt from a hopper,
and travels up· the belt to the ball mill which crushes it to
powder. The ball mill operator is required to maintain the
conveyor belt with a head and a tail pulley at either end, and to
remove foreign objects from the belt. A magnet is affixed to the
belt, at about its midpoint, and the belt shuts down
automatically when any metallic object passes under the magnet.
The ball mill operator is required to remove and discard the
metal, and restart the belt. He is also required to remove and
discard other nonmetallic foreign objects from the belt to
prevent. th5n from .passing into the ball mill. Two bins are
provided near the magnet where the metal and nonmetal objects are
deposited. A majority of the mill operator's work time is
performed at or near the magnet. The ball mill and belt are
located outside and immediately below the operating floor where
the kilns are located. The operating floor is open and is
approximately 30 feet above the ground where the ball mill is
operated.
In about 19 84, the then operator of the ball mill, Robert
Lehman, asked to have overhead protection erected because of
falling objects coming from the operating floor. These included
filter cloths, caustic metal, bolts, valves and trash. About two
or three weeks after this request, a 6-foot high scaffold was
erected, 6 feet square, covered with three 2xl2 boards and a
piece of plywood on top of the boards. Lehman later enclosed the
area to keep out the cold, the caustic and the dust. After about
two years, Reynolds tore down the shelter because "it was an
eyesore and they didn't want visitors to see it." (R. 54}.
However, it was replaced by a new similar shelter after two or
three days. This remained in place until September 1988.
During the period from 19 84 until September 19 88, on
numerous occasions large cloth filters weighing in excess of 100
pounds were dropped from the operations floor to the ground below
by operations employees. Metal rods, pieces of scaffold boards,
bolts, tools, and pieces of corrugated metal siding also fell or
were dropped; liquid hydrate spilled from the upper floor to the
ball mill area. The ball mill operators were aware of these
occurrences and at least on some occasions reported them to
supervisory personnel. Therefore, I find that Reynolds was aware
that objects fell or were thrown from the calcinator floor or the
floor where the numbers 8 and 9 kilns were located, to the ground
below in the area of the ball mill.

415

On August 31, 1988, a regular Mine Safety and Health
Administration (MSHA> inspection took place at the Shen'lin plant.
The inspector found missing guards on the two tail pulleys on the
conveyor belt of the ball mill. A section 104(d) order was
issued because Respondent had been cited previously for the same
violation. Complainant Damron was operating the ball mill at the
time and was inside the shelter. The MSHA inspector pointed out
that an electrical extension cord running to the shelter was not
properly grounded. He also commented th~t the shelter area was
dirty, and the chair on which Damron sat was broken. No
citations were issued for any conditions in the shelter. The
following day, September 1, the shelter was taken down by
Respondent.
On the day the shelter was torn down, Complainant protested ·
the action to Glenn Reynolds, the General Supervisor in the
precipitation and calcination areas of the plant. He also
contacted Paul Bucey, the Union Safety Co~ittee Chairman and
requested a safety procedure meeting. Such a meeting was held on
Friday, September 2. Complainant and the Union representatives
contended that a safety issue was involved because of objects
falling or being thrown from the upper floors, and caustic liquid
spilling on to the area where the ball mill operator worked. The
company representatives agreed to erect a barrier against the
handrail of the upper floor and to erect a metal shed over the
area where the magnet was located to protect the ball mill
operator. Complainant sought a wooden overhead structure until
the metal shed could be completed. Complainant testified that
the company agreed to this proposal, but the company
representatives testified that they specifically denied the
request on the ground that it would "create more hazards then
what we take care of." (R. 382). There may have been a
misunderstanding of what was agreed to, but I find as a fact that
the company did not accede to Complainant's request that a
temporary wooden overhead structure be erected over the ball mill
pendin9 the erection of the metal shed. The company did agree
not to operate the mill until the guardrail barrier was erected.
On Monday, September 5 (Labor Day), a number of sheets of plywood
were stacked up inside the handrail of the floor above the ball
mill. The ball mill operator (Robert Lehman) was instructed to
attach the sheets of plywood to the handrail with pieces of wire.
No other overhead protection was in place. T~hman operated the
mill by stepping, away from the belt 15 or 20 feet. Operating
from this position he was unable to remove nonmetallic foreign
objects from the belt. Complainant worked on the next shift and
was told by his foreman Arlon Boatman that he was going to have
to run the mill. Boatman had not been present at the safety
procedure meeting, and was not aware of what had been agreed upon.
He assigned Complainant to work on certain problems in the "tray
area," and he discussed with management people what had taken

416

place at the safety meeting. At the beginning of his shift on
Tuesday, September 6, Complainant again worked on the trays.
During discussions between Boatman and Complainant, Boatman told
Complainant he would direct the overhead operators to be careful in
hosing down the upper floor and to inform Boatman if they had to
remove objects from the floor. He also told Complainant that he
could operate the ·mill by turning the belt switch on, and then
stepping back away and monitoring the belt from a distance.
Complainant protested that he could not operate it in that manner
because the metal detector does not always stop the belt when metal
objects come up, and this could result in severe damage to the mill.
Boatman told Complainant "that should anything go through the
detector, if for any reason it failed and we did get metal in the
mill, that it would be my responsibility." (R. 352) . Boatman
explained that a metal shed was being constructed which would be
placed over the metal detector area. Because of the need for
workers in the tray_ area, Complainant continued on that job and did
not run the ball mill on Tuesday, September 6 (he worked a double
shift 4:00p.m. to midnight and 12:00 to 8:00a.m., Wednesday). On
Wednesday, September 7, on the day shift, Lehman was discharged for
refusing to run the ball mill.
On Wednesday, Complainant reported to work on the afternoon
shift. Boatman gave him a direct order to run the ball mill.
Complainant refused because "I feel it's unsafe." (R. 231).
Respondent gave him a suspension with intent to discharge.
Complainant filed a grievance under the union contract which
ultimately resulted in an arbitration proceeding. As a result of
the arbitration decision, Complainant was reinstated without back
pay.
General Superintendent Reynolds was at the Plant on Monday,
September 5, because of severe tray problems. He was approached by
Complainant Damron who told him that the company had agreed at the
safety procedure meeting to erect a plywood overhead shelter for
the ball mill. Reynolds denied that the company made such an
agreement, and told Complainant that a metal structure was being
constructed. Reynolds further testified:
And I told him that, if he had any real safety concerns
regarding the operation of the belt line, without that
temporary shed, that he should go outside the building,
down the tunnel, and operate the bel~ standing in that
position. And that as metal came up the belt, he could
shut the belt down and remove it. ( Tr. 319) .
On rebuttal, Complainant referred to this testimony:
Q. Mr. Damron, did you hear testimony earlier by
Mr. Reynolds that indicated that he had given you the

4;1.7

option of working down in the pit next to the conveyor
belt of the ball mill?
·
A. Yes, I heard what he said. It's not true, he never
given [sic] me any options, just to do it or else.

*

*

*

Q. Did _anybody other than Mr. Boaonan, ever suggest to
you any other way of operating the ball mill, other than
standing by the magnet?

A.

No, they didn't.

Nobody but Mr. Boatman.

(R.460).

I find as a fact that Reynolds did tell Complainant that he
could run the mill away from the building, "down the tunnel."
Boatman was asked whether on Wednesday when Complainant was
terminated he would have permitted Complainant to operate the mill
"from outside the building." He answered:
I would have allowed him to operate that mill as I had
directed him to, which would have been under normal
conditions, as we had been operating • • •
Q. And had he objected to working or standing at the
magnet, what about that?

A. No. Because the situation, as far as me as a
representative of the company, and as a supervisor, that
if I gave him the direct order to operate the facility
under normal conditions, standing where he needed to, if
he needed to stand at the metal 9etector, if he needed to
clean conveyor belts, tail pulleys or whatever, it would
be the general operator, the regular operation of the
facility. (R. 353).
This testimony is ambiguous on the issue of whether Boatman
would have permitted Complainant to monitor the belt from a
distance--away from the building as he indicated on Monday,
September 5. However, he did not withdraw his authorization given
two days before that Complainant could have operated the ball mill
away from the belt. Nor did -Complainant testify that he understood
that it had been withdrawn.
Subsequent to Complainant's discharge (within a matter of a
few days), the permanent metal barrier was in place inside the
handrail of the operating floor and the metal shed was erected over
the magnet area where the ball mill operator worked.

418

ISSUES
1. Was Complainant's work refusal, for which he was
discharged, protected activity under the Act?
2.

If so, to what remedies is he entitled under the Act?

CONCLUSIONS OF LAW
I

Complainant and Respondent are protected by and subject to the
provisions of section 105(c) of the Act . Complainant is a miner;
Respondent is a mine operator. I have jurisdiction over the
parties and subject matter of this proceeding.
II
In order to establish a prima facie case of discrimination
under the Act, a complaining miner must prove that he was engaged
in protected activity and that the adverse action complained of was
motivated in any part by that activity. In order to rebut the
prima facie case, the operator must show either that no protected
activity occurred or that the adverse action was not motivated in
any part by the protected activity. Secretary/Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (1980), rev'd on other
grounds sub . nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211
(3rd Cir. 1981); Secretary/Robinette v. United Castle Coal Co., 3
FMSHRC 803 (1981). ·secretary/Wayne v. Consolidation Coal Co., 11
FMSHRC 483 (1989).
III
A refusal to perform work is protected activity under the act
if the miner has a good faith, reasonable belief that the work he
refuses to perform is hazardous. The burden of proof is on the
miner to establish both the good faith and the reasonableness of
his belief that a hazard existed. Robinette, supra; Secretary/Bush
v. Union Carbide Corporation, 5 FMSHRC 993 (1983); Biddle, Means
and Levine, Protected Work Refusals Under Section 105(c)(l) of the
Mine Safety and Health Act, 89 W.Va. L. Rev. 629 (1987).
IV
The reasonableness of the miner's belief in the hazardous
nature of the work is not determined by whether a hazard
objectively exists, but by the miner's reasonable perception of a
hazard. Haro v. Magma Copper Co., 4 FMSHRC 1935 (1982);
Secretary/Pratt v. River Hurricane Coal Co., 5 FMS~RC 1529 (1983).
Respondent's witnesses here denied that there was a safety hazard

419

resulting from falling or thrown objects to a ball mill operator
without overhead protection. But the weight of evidence
contradicts Respondent's position. I have found as a fact that on
numerous occasions objects fell or were dropped or spilled from the
operating floor to the . ball mill area . A hazard existed
objectively. The extent of the hazard, that is, the frequency or
likelihood of falling objects landing in the ball mill area is a
matter of dispute. From the perspective of the ball mill
operators, including Complainant, the hazard was real, and their
perception of · the hazard was reasonable.

v
The miner's work refusal must be made in the good faith belief
that a hazardous condition obtained. Good faith "simply means
honest belief that a hazard exists." Robinette, supra, at 810.
Good fai.th requires the miner to inform the mine operator of his
belief in the safety hazard to give the operator the opportunity to
correct the condition. Secretary/Dunmire and Estle v. Northern
Coal Co., 4 FMSHRC 126 (1982). See also, Gilbert v. FMSHRC, 866
F.2d 1433 (D.C. Cir. 1989).
Complainant's safety concerns were communicated in a formal
safety meeting with Respondent. Respndent addressed the concerns
by agreeing to put up a permanent barrier along the handrail of the
operating floor above the ball mill and to erect a metal shed for
the mill operator at or near the magnet. Although neither of these
were completed at the time of Complainant's work refusal and
discharge, a plywood barrier was in place at the handrail, and a
permanent metal barrier as well as a metal shed were being
constructed . Complainant knew that these would be erected in a few
days and would provide him more protection than the shed which had
been torn down. Superintendent Reynolds told Complainant that he
could operate the mill from "down in the tunnel," where he would
not be exposed to falling objects. Foreman Boatman told him he
could operate from outside the belt area, and that he (Boatman)
would take the responsibility if metal objects got into the mill.
Did these instructions, coupled with the erection of a barrier
at the handrail overhead, and the planned erection o~ a metal shed,
address the perceived hazards so as to make the work refusal in bad
faith? Ordinarily a ball mill operator, wherever he stations
himself at the beginning of his shift, must spend a substantial
part of his time at or near the magnet where the belt control is
located. However, Respondent Reynolds through Superintendent
Reynolds and Boatman gave Complainant clear permission to operate
the mill from outside the area of danger during the short period
while the shed was being erected. Respondent addressed
Complainant's reasonable fear of a hazard, and his refusal to work
thereafter is not shown to be in good faith.

420

I conclude therefore that Complainant Damron's refusal to
o perate the ball mill on September 7, 1988, was not based on a
reasonable, good faith belief that the work was hazardous .
Respondent's action in discharging him was not in violation of
section 105(c) of the Act.
Based on the above findings of fact and conclusions of .law, IT
IS ORDERED:
1. Complainant's discharge on September 7, 1988, was not in
violation of section 105(c) of the Act.
2.

The Complaint and this proceeding are DISMISSED.

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James A. Broderick
Administrative Law Judge

Distribution:
R. Michael LaBelle, Esq., 4201 Connecticut Avenue, N.W., Suite 400,
Washington, D.C. 20008 (Certified Mail)
Jean W. Cunningham, Esq., Reynolds Metals Company, 6601 W. Broad
Str e e t Road, Richmond, VA 23261 (Certified Mail)
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421

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

MAR 8 1990 ·
WILLIAM G. HAGY ,

CONTEST PROCEEDING
Contestant

v.

Docket No. SE 90-43-R
Citation No. 3180625; 5/18/89

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

Matthews Mine
Mine ID 40-00570

ORDER OF DISMISSAL
Before:

Judge Broderick

Contestant filed a Notice of Contest with the Commission on
February 12, 1990, coniesting order/citation 3180625 issued to
Consolidation Coal Company on May 18, 1989. The order/citation
was under section 107(a) and 104(a) of the Act and alleges a
violation of 30 C.F.R. § 75.202(a). A copy of the order/citation
was sent to Contestant, with a letter from MSHA District Manager
Joseph J. Garcia dated January 3, 1990, in which Contestant was
notified that "MSHA is proposing to assess a civil penalty
against you for knowingly authorizing, ordering or carrying out a
violation of 30 C.F.R. § 75.202(a) as cited in Citation No.
3180625 issue~ May 18, 1989, which is enclosed."
The Secretary filed a Motion to Dismiss on February 16,
1990, on the grounds that the Notice of Contest was filed
untimely, in that the citation was issued May 18, 1989, and the
notice was filed February 12, 1990.
Contestant responded to the Motion on March 7, 1990.
Although filed out of time, I accept and have considered the
response.
Section 105(d) of the Act provides in part:
If, within 30 days of receipt thereof, an operator
notifies the Secretary that he intends to contest the
issuance or modification of an order issued under
section 104, or citation • • • issued under subsection
(a) or (b) of this section, • • • 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

422

the reasonableness of the length of time set for
abatement by a citation • • • issued under section 104,
the Secretary shall immediately notify the commission
• • • and the Commission shall afford an opportunity
for a hearing • •
Section 107(e)(l) provides that an operator or
representative of miners may apply to the Commission
for review of an order issued under section 107 .
The Notice of Contest states that Contestant is a Section
Foreman at the subject mine. Assuming this to be true, as I must
in considering the motion to Dismiss, he is a miner under the Act.
It is not alleged that he is a representative of miners.
Contestant argues that he is an "operator" under section 3(d).
Without deciding that question, it is evident that the
order/citation, which Contestant attempts to contest here was
issued to Consolidation Coal Company and not to Contestant. I do
not accept Contestant's argument that the January 3, 1990 letter
"must be considered an issuance of the citation which was served
by mail on the Applicant for purposes of protest by the
Applicant." Contestant contests the validity but not the
reasonableness of the length of time set for abatement of
Citation 3180625. He apparently contests the 107(a) withdrawal
order: Paragraph 3(b) "the Contestant was not in violation of 30
C. F.R. § 75.202(a} or§ 107(a} of the Act • • • (d) no alleged
violation discribed in Citation No. 3180625 was of such a nature
as could reasonably be expected to cause death or serious
physical injury before it could be abated, • • • " The Notice
further avers that no alleged violation resulted from knowing
conduct on the part of the Contestant.
Miners or their representatives do not have the right under
the Act to chall~nge the validity of a citation issued under
section 104(a} of the Act, but may only challenge the
reasonableness of the abatement time. UMWA v. Secretary, 5
FMSHRC 807 (1983), aff'd sub nom. UMWA v. FMSHRC, 725 F.2d 126
(D.C. Cir. 1983}.
- - -Section 107 permits review by the Commission of a section
l07(a) withdrawal order by an operator or representataive of
miners. There is no provision for a miner to initiate such a
review proceeding.
The order/citation does not charge a violation by Contestant
of section llO(c) of the Act. Whether Contestant knowingly
authorized, ordered, or carried out a violation is not before me
in this proceeding.

423

I therefore conclude that Contestant does not have the right
in this proceeding to challenge the order/citation issued to
Consolidation Coal Co. On this basis, and not on the basis urged
in the Motion to dismiss, this proceeding is DISMISSED. This
disposition does not affect Contestant's right to challenge the
citation in any proceeding which may be brought against him under
section llO(c) of the Act.
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j · ~ames

A. Broderick
Administrative Law Judge

Distribution:
J. Philip Smith, Esq., u.s. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
Laura E~ Beverage, Esq., Jackson & Kelly, 1600 Laidley Tower,
P.O. Box 553, Charleston, WV 25322 (Certified Mail)
slk

424

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

t1AR 8 1990
THOMAS J. TABOR, JR. I
Contestant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) I
Respondent

.
.
.
.
..

CONTEST PROCEEDING
Docket No. SE 90-44-R
Citation No. 3180625; 5/18/89
Matthews Mine
Mine ID 40-00570

ORDER OF DISMISSAL
Before:

Judge Broderick

Contestant filed a Notice of Contest with the Commission on
Febr-uary 12, 1990, contesting order/citation 3180625 issued to
Consolidation Coal Company on May 18, 1989. The order/citation
was under section l07(a) and 104(a) of the Act and alleges a
violation of 30 C.F.R. § 75.202(a). A copy of the order/citation
was sent to Contestant, with a letter from MSHA District Manager
Joseph J. Garcia dated January 3, 1990, in which Contestant was
notified that "MSHA is proposing to assess a civil penalty
against you for knowingly authorizing, ordering or carrying out a
violation of 30 C.F.R. § 75.202(a) as cited in Citation No.
3180625 issued May 18, 19 89, which is enclosed."
The Secretary filed a Motion to Dismiss on February 16,
1990, on the grounds that the Notice of Contest was filed
untimely, in that the citation was issued May 18, 1989, and the
notice was filed February 12, 1990.
Contestant responded to the Motion on March 7, 1990.
Although filed out of time, I accept and have considered the .
response.
Section 105(d) of the Act provides in part:
If, within 30 days of receipt thereof, an operator
notifies the Secretary that he intends to contest the
issuance or modification of an order issued under
section 104, or citation • • • issued under subsection
(a) or (b) of this section, • • • 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

425

the reasonableness of the length of time set for
abatement by a citation • • • issued under section 104 ,
the Secretary shall immediately notify the Commission
. and the Commission shall afford an opportunity
for a hearing • •
Section 107(e)(l) provides that an operator or
representative of miners may apply to the Commission
for review of an order issued under section 107 .
The Notice of Contest states that Contestant is a Section
Foreman at the subject mine.
Assuming this to be true, as I must
in considering the motion to Dismiss, he i s a miner under the Act .
It is not alleged that he is a representative of miners.
Contestant argues that he is an "operator " under section 3(d).
Without deciding that question , it is evident that the
order/citation, which Contestant attempts to contest here was
issued to Consolidation Coal Company and not to Contestant.
I do
not accept Contestant 1 s argument that the January 3 , 1990 letter
"must be considered an isauance of the citation which was served
by mail on the Applicant for purposes of protest by the
Applicant."
Contestant contests the validity but not the
reasonableness of the length of time set for abatement of
Citation 3180625 .
He apparently contests the 107(a) withdrawal
order :
Paragraph 3(b) "the Contestant was not in violation of 30
C.F.R·. § 75.202(a) or§ 107(a) of the Act • . . (d) no alleged
violation discribed in Citation No . 3180625 was of such a nature
as could reasonably be expected to cause death or serious
physical injury before it could be abated , . • • " The Notice
further avers that no alleged violation resulted from knowing
conduct on the part of the Contestant.
Miners or their representatives do not have the right under
the Act to challenge the validity of a citation issued under
section 104(a) of the Act , but may only challenge the
reasonableness of the abatement time.
UMWA v. Secretary, 5
FMSHRC 807 (1983) , aff 1 d sub nom . UMWA v. FMSHRC, 725 F . 2d 126
(D . C . Cir . 1983).
----------Section 107 permits review by the Commission of a section
107(a) withdrawal order by an operator or representataive of
miners. There is no provision for a miner to initiate such a
review proceeding .
The order/citation does not charge a violation by Contestant
of section llO(c) of the Act .
Whether Contestant knowingly
authorized , ordered , or carried out a violation is not before me
in this proceeding.

426

I therefore conclude that Contestant does not have the right
in this proceeding to challenge the order/citation issued to
Consolidation Coal Co . On this basis , and not on the basis urged
in the Motion to dismiss, this proceeding is DISMISSED. This
disposition does not affect Contestant ' s right to challenge the
citation in any proceeding which may be brought against him under
section llO(c) of the Act .
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James A. Broderick
Administrative Law Judge

Distribution:
J . Philip Smith , Esq., U.S. Department of Labor , Office of the
Solicitor, 4015 Wilson Blvd ., Arlington , VA 22203 (Certified
Mail)
Laura E . Beverage , Esq ., Jackson & Kelly, 1600 Laidley Tower ,
P . O. Box 553, Charleston, WV 25322 (Ce rtified Mail)
slk

427

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

MAR 9 1990
DAVI D THOMAS ,

DISCRIMINATION PROCEEDING
Complainant
Docket No. KENT 89 -1 3-D

v.
AMPAK MI NI NG, INC. ,
Respondent

..

BARB CD 88- 16
Mine No . 1

GEORGE ISSACS ,

DISCRIMINATION PROCEEDING
Complainant
Docket No . KENT 89-1 4-D

v.
BARB CD 88- 34
AMPAK MINING, INC.,
Respondent

Mine No. 1
DECISION

Appearances:

Before:

Tony Oppegard , Esq . , and Stephen A. Sanders , Esq.
Appalachian Research and Defense Fund of
Kentucky, Inc., Hazard , Kentucky for the
Complainants ;
Geary Burns , Vice President, Ampak Mining , Inc.,
Van Lear, Kentucky for Respondent Ampak Mining, Inc . ,
G. Graham Martin , Esq . , Martin Law Offices, P.s.c .,
Prestonsburg , Kentucky for Respondent Johnson Coal
Company , Inc.
·

Judge Me l ick

These proceedings are before me to determine the amount of
damages , atto r ney's fees and costs to be allowed based upon the
December 26, 1989 , decision finding that Ampak Mining, Inc.,
discriminated against the Complainants in violation of Section
105(c)(l) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et ~ . , the "Act".
The parti es remaining in these cases have reached
stipulations as to the damages incurred by the Complainants as
follows:
The backpay period for the unlawful demot~on of
David Thomas is 1 2/21/87 through 2/ 14/88; and the
backpay per i od for the unlawful termination of Thomas
is 2/15/8 8 through 7/l/88. Thomas' damages for these
periods (what he woul d have earned at Ampak less his
interim earnings) total $6 , 250 , plus interest to be
428

computed at the time of payment pursuant to the
formula employed by the Commissi.o n in UMWA v .
Clinchfield Coal Co. , 1 0 FMSHRC 1493 (1988) .
The backpay period for the unlawful termination of
George Issacs is 4/22/88 through 7/1/88. Issacs '
damages for this period total $6 , 080 plus interest to
be computed at the time of payment pursuant to the
formula e.'l'lployed by the Commission in Clinchfield Coal
Co.
Complainants have also filed a " Statement of Attorney's
Fees and Expenses" seeking attorney's fees and litigation
expenses of $43,806.80. These fees and expenses are not
challenged a~d are accordingly awarded in accordance with
Section 105(c)(3) of the Act.
The Complainants have also filed a pleading captioned
"I'iotion for Leave to Proceed Against Ampak' s Owners
Individually , Based on the Alter Ego Doctrine, for the Liability
Found Herein ". In said Motion the Complainants apparently seek
to enforce the judgment on this case individually against Geary
Burns and Peggy A. Kretzer the alleged owners of the Respondent
Arnpak Mining Inc .
The Commission stated under similar circumstances in
Tolbert v. ·Chaney Creek Coal Corp., 9 FMSHRC at 1848, (1987) ,
that:
[t]he essential nature of the remedy sought • . • is
collection of a judgement debt. This relief involves
inter alia, enforcement and execution of the
Commission ' s final decision in this matter. Such an
enforcement request is properly directed to the
Secretary of Labor . Under the Mine Act the Secretary
is e.'tlpowered to seek compliance with Commission orders
in the federal Courts. See 30 U. S . C. §§ 816(b) & a1a .
The Complainants herein must therefore direct their
enforcement and execution efforts accordingly.

429

ORDER
Ampak Mining Inc., is hereby directed to pay the noted
backpay award plus interest computed in accordance with the
Commission decision in UMWA v. Clinchfield Coal Co.,
10 FMSHRC 1493 (1988) within 30 days of the date of this
decision . Ampak Mining Inc., is further directed to pay the
Complainants attorney's fees and litigation expenses of
$43,806.80 w1thin 30 days of the date of this deyision. The
Complainants "Motion for Leave to Proceed Againsl Ampak's Owners
Individually, Based on the Alter Ego Doctrine, f~r the Liability
Found Herein" is denied. This depision represen~s the fina~
disposition of these proceedings/pefore the unde~signed juqge •
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Gary; Mel1cJj

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Adm~nistra~ive Law Judye

I

Distribution:

Tony Oppegard, Esq., Appalachian Research and Defense Fund
of Kentucky, P.O. Box 360, Hazard, KY 41701 (Certified
Mail)
Graham Martin, Esq., Main Street, United Federal Building,
Hindman, KY 41822 (Certified Mail)
Mr. Geary Burns, P.O. Box 1183, Painstsville, KY
(Certified Mail)

41240

Ms. Peggy A. Kretzer, HC 83, Box 172, River, KY
(Certified Mai 1)

41254

Office of the Solicitor, u.s. Depart~ent of Labor, 4015
Wilson Boulevard, Arlington, VA 22203
nt

430

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

MAR 9 1990
SECRETARY OF LABOR ,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 90-5-M
A.C. No. 15-00099 - 05514

v.
Strunk Crushed Stone
HINKLE CONTRACTING CORP .,
Respondent
DECISION
Appearances :

Before:

Anne T. Knauff, Esq ., Office of the Solicitor,
u. s. Department of Labor, Nashville, Tennessee
for Petitioner;
Bob Connolly, Esq ., Stites & Harbison,
Louisville, Kentucky for Respondent .

Judge Melick

This case is before me upon the petition for civil
penalty filed by the Secretary of Labor pursuant to
Section 105(d) of the Federal Mine Safety and Health Act of
1977 , 30 u.s.c . § 801 et seq ., the " Act , " charging
Hinkle Contracting Corporation (Hinkle) ~ith two violations
of mandatory standards and proposing a civil penalty of
$1,350 for the violations. The general issue before me is
whether Hinkle violated the cited standards and , if so , the
appropriate civil penalty to be assessed in accordance with
Section llO(i) of the Act.
Citation No. 3438481 issued pursuant to Section
104(d)(l) of the Act~
~/Section 104(d)(l) reads 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 a~ could significantly
and substantially contribute to the cause and
effect of a coal or other mine safety or health

431

charges, as amended , as follows:
A 36 inch belt conveyor provided with an elevated

walkway along its entire length was not equipped
with a functional emergency stop device. The 575
conveyor was approximately 4 50 feet long . The
trough rollers created pinch po i nts along the
length of the conveyor at approx imately 42 inches
from the walkway level . The conveyor had been
installed approximately 6 months prior and had been
fitted with the emergency stop device but had not
been wired e l ectrically in order for the device to
function . The plant had been in operation since
March 13, 1989 . The plant superintendent
William Huckaby , stated that they had been waiting
on the availability of company electricians to
furnish the installations. Management had not
taken any steps to lessen the risk or hazard
through warning signs or hazard training for the
employees . This is an unwarrantable failure on the
part of the operator.
The cited . standard, 30 C.F.R. § 56 . 14109 , provides as
follows:
Unguarded conveyors next to the travelways shall be
equipped with- (a) Emergency stop devices which are located so
that a person falling on or against the conveyor
cont ' d fn . l
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.

432

can readily deactivate the conveyor drive motor, or
(b) Railings which-(1) Are positioned to prevent persons from falling
on or against the conveyor.
(2) Will be able to withstand the vibration, shock,
and wear to which they will be subjected during normal
operation~ and
(3) Are constructed and maintained so that they will
not create a hazard.
Hinkle acknowledged at hearing that it had neither an
operable emergency stop device nor guard rails along its 450
foot long No. 57 conveyor. Hinkle alleges that an unwritten
so-called "42 inch exception" to the cited mandatory standard
was applicable to this case . Under this purported exception
belt conveyors that are 42 inches or higher above the
adjacent walkway need not be guarded or have an operable
emergency stop device. Since the conveyor here was higher
than 42 inches Hinkle maintains that the "42 inch exception"
applies and that there was accordingly no violation.
The origins of this purported ''42 inch exception" are
unclear. In its answer filed in this case Hinkle states it
was an unwritten "rule-of-thumb" applied by another Federal
agency, the Occupational Safety and Health Administration
<OSHA). William Huckaby a Hinkle superintendent recalled
that it was a guideline once used by the State of Oklahoma
which he learned about when taking a licensing test there.
Safety Director Lowell Manning thought that other MSHA
inspectors had told him of the "42 inch ~ception". Hinkle
elected however not to call any such MSHA inspector who had
allegedly given this advice.
Neither Inspector Shanholtz nor MSHA field office
supervisor Vernon Denton had ever heard of any such "42-inch
exception" to the mandatory standard. Indeed there is
nothing in the language of the regulation to even remotely
suggest such an exception . Moreover there is no rational
basis for such an exception . Indeed, to the contrary, the
most hazardous area of exposure to miners would appear to be
within arms reach above 42 inches. Onder the circumstances I
find the so-called "42-inch exception" to be a fiction. The
plain language of the standard must in any event prevail.
Since the conveyor when installed in 1988 came already
furnished with an emergency stop cord and required only
minimal ~lectrical installation to activate, I find the
failure of management to have had the cord activated
to have been particularly negligent. This negligence is
further aggravated by allowing the non-functioning stop cord

433

to remain in place thus giving a false sense of security.
Operator negligence ~as even further aggravated by isolating
the only means of stopping the conveyor at a location some
200 feet from the conveyor. This is the type of aggravated
conduct and omission that constitutes unwarrantable failure.
Emery Mining Corporation 9 FMSHRC 1997 (1987>.
In reaching these negligence and "unwarrantable failure"
findings I have not disregarded Hinkle's claims that the
conveyor had previously been inspected by MSHA inspectors and
had never before been cited. However the only credible
evidence that the belt had in fact previously been inspected
came from Inspector Shanholtz himself. According to
Shanho~tz when he previously inspected the plant it was not
in production and the cited belt was not running. In any
event even had other inspectors failed to discover the
violative inoperable stop cord on prior inspections, that is
by no means indicative of any MSHA approval of the violation.
Indeed the presence of the stop cord, albeit an inoperable
one, may very well have deceived other inspectors into
believing there was no violation.
The violation was also of high gravity and "significant
and substantial". In order to find a violation "significant
and substantial", the Secretary has the burden of proving the
eKistence of an underlying violation of a mandatory standard,
the existence of a discrete hazard <a measure of danger to
health or safety) contribut~d to by the violation, a
reasonable likelihood that the hazard contributed to will
result in an injury, and a reasonable likelihood that the
injury in question will be of a reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1 {1984) •
..

The testimony of Inspector Shanholtz is credible in this
regard and fully supports the gravity and "significant and
substantial" findings. In reaching this conclusion I have
not disregarded Hinkle's claims that the condition was not
hazardous since there had never previously been any injuries
along the belt and that the work of lubrication, maintenance
and cleanup along the belt was performed only when the belt
was shut down. Inspector Shanholtz noted however, without
contradiction, that there was in fact pedestrian traffic on
the walkway immediately adjacent to the unguarded conveyor.
Moreover the hazard was particularly serious in this case
because of the absence of any stopping mechanism in close
proximity to the beltline. The only ~top switch for tha belt
was located some 200 feet away. Thus if a minec became
caught in the belt it was indeed reasonably likely that
serious injuries or death would occuc before the belt could
be shut down.

434

Citation No. 3438483 charges a "significant and
substantial " violation of the mandatory standard at
30 C. F . R. § 56.3200 and charges as follows:
Loose , unconsolidated material was observed on the
highwall where the pit haul road parallelled the
west quarry wall . Large loose slabs and boulders ,
some weighting several tons , were observed along a
200 foot section of the wall. The ground along the
wall was fractured and fragmented . The wall was
approximately 40 feet high . Haulage equipment and
pickups utilized the road on a daily basis . One
section of the road was slightly overhung by the
loose material.
The cited standard 30 C. F . R. 56.3200 provides as
follows:
Ground conditions that create a hazard to persons
shall be taken down or supported before other work
or travel is permitted in the affected area . Until
corrective work is completed, the area shall be
postad with a warning against entry and, when left
unattended, a barrier shall be installed to impede
unauthorized entry .
According to Inspector Shanholtz the cited loose
material was fractured with numerous cracks . Some of the
material was also in overhanging rock. He also found that
along the top edge there were large round boulders "just
sitting there" with "nothing holding them". According to
Shanholtz , Foreman Tim Hatton, who was· accompanying him
during his inspection, agreed that the cited conditions d id
exist and admitted that the large boulders on the top edge
appeared to be "sitting on nothing but their imagination" .
Shanholtz also observed that the highwall actually over
hung a section of the road . Other loose material along the
highwall also was in need of scaling . hccording to Shanholtz
falling material would likely have dropped onto the haul road
on which haulage equipment and pick-up trucks were operat i ng.
Shanholtz opined therefore that it was highly likely for ·
serious injuries or fataliti~s to occur.
Shanholtz also Eound the operator chargeable with high
negligence in that MSHA officials had previously discussed
the highwall problems with Hinkle officials . Hinkle had then
agreed to scale the highwall and widen the road . Indeed

435

Shanholtz himself had discussed these problems with Hinkle
representatives during his October 1988 visit.
Accocding to Shanholtz, Hatton also admitted that he and
Lowell Manning had inspected the highwall the week before the
inspectio~ and h~4 agreed that it needed scaling.
They had
reportedly stopped · scaling operations however because the
machinery they had would not reach high enough along the
wall. Shanholtz observed that it took seven days after the
citation wa~ issued to properly scale the highwall and thus
abate the prqblem.
Within this framework it is clear that the violation is
proven as charged and that it was "significant and
substantial" and of high gravity. I find Inspector
Shanholtz's testimony in this regard to be credible including
his testimony regarding admissions by representatives of the
operator at the time of the inspection.
While Hatton denied at hearing that he made the
admissions attributed to him by Shanholtz I do not find his
denials to be credible. Moreover I can give but little
credence to the self-serving statements of Lowell Manning,
William Huckaby, and Timothy Coomer.
Considering the criteria under section llO<i> of the Act
find that the following civil penalties are appropriate.
Citation No. 3438481, $750, Citation No. 3438483, $600.
I

ORDER
Hinkl~ Contracting Corporation is herery directed to pay
civil penalties of $1,350 within 30 days of the date of this
decision.
t

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.

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I

v·- .,
•

f3ary Me'll.ck
•Administrative Law Judge

Distribution :
Anne T. Knuaff, Esq., Office of the Solicitor, u.s.
Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215 (Certified Mail>
Robert M. Connolly, Esq., Stites & Harbison, 600 West Main
Street, Louisville, KY 40202 (Certified Mail)
nt
436

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIV~ LAW JUDGES
2 SKYLINE, l Oth FLOOR
5203 l EESBURG PIKE
FALLS CHURCH, VIRGINIA 2204 1

MAR 13 1990
SECRETARY OF LABOR ,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF
SIX MINERS ,
Compla i nant

DISCR I MI NATION PROCEEDING

.

Docket No. KENT 89 - 90 - D
Mine No. 4

v.
SMOOTH SAILING COAL COMPANY ,
INC ., AND JAMES W. RUNYON ,
Respondents
SECRETARY OF LABOR ,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
')N BEHALF OF
DARRELL MAYNE , LARRY D.
SAYLOR , RICKY G . SAYLOR ,
AND TERRY D. SAYLOR ,
Complainants

DISCRIMINATION PROCEEDING
Docket No . KENT 89- 100-D
BARB CD
BARB CD
BARD CD
BARB CD

89- 04
89- 05
89 - 06
89 - 08

v.
Mine No . 4
SMOOTH SAILING COAL CO .,
INC. , AND JAMES W. RUNYON ,
Respond en t s

.

DEC I SI ON
Appearances :

Thomas A. Grooms, Esq . , Of fice of the Solicitor ,
u. s . Department of Labor, Nashville , Tennessee , for
the Compl ainant;
Guy E. Millward , Jr., Esq ., Mi l lwa rd and Jewell ,
Barbourville , Kentu cky , for the Respondents.

Before:

Judge Maure r
STATEMENT OF THE CASE

These proceedings co nce r n a d i sc r imination complaint and an
application for tempor ary r e i ns t atement filed by the Secretary of
Labor (Secretary) on behalf of the affected miners named herein
pursuant to section lOS<c > o f the Federal Mine Safety and Health
Act of 1977, 30 u. s .c. § 8 15(c).

437

on March 15 , 1989, an Application for Temporary Reinstate ment dated March 1 , 1989 , was filed with the Commission by the
Secretary on behalf of Darrell Mayne , Larry D. Saylor, Terry D.
Saylor and Ricky G. Saylor . On that same day , the case was
assigned to the undersigned. No response was had from th e
respondents requesting a hearing on the application and on
March 27 , 1989 , an order was issued by the undersigned dire cting
the respondents to immediately reinstate the aforementioned four
miners to the positions they held on August 26 , 1988. However ,
the No . 4 Mine, where they all worked, became non-producing as of
March 6, 1989.

-

On ·March 2 , 1989 , a Discrimination Complaint was filed with
the Commission on behalf of these four miners plus Carl Croley
and Timothy Cox. The complainant a l leged that the respondents
discriminated against the six miners by laying them off in
retaliation fo r them making safety and health - related complaints
to the respondents on several occasions prior to the date of the
layoff. Respondents answered with what was essentially a gene ral
denial .
Pursuant to notice, a hearing on the merits was held in this
matter on August 8 and 9 , 1989 , in Berea, Kentucky. A
post - hearing brief was filed by the Secretary on December 5 ,
1989 , on behalf of the six individual complainants. The
respondents did not choose to file a post-hearing submission.
General Law Applicable to the Case
In order to establish a orima facie case of discrimination
under section 105<c> of the Mine Act , a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasu1a v . Consolidation Coal Company ,
2 FMSHRC 2768 (1980), rev ' d on other grounds sub nom .
Consolidation Coal Company v. Marshall , 663 F . 2d 1211 (3d Cir.
1981); Secretary on behalf of Rob i nette v . United castle Coal
Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v .
Hecla-Day Mi nes Corporation , 6 FMSHRC 1842 (1984); Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 , 2510 - 2511
(November 1981) , rev'd on other grounds sub nom. Donovan v.
Phelps Dodge Corp ., 709 F . 2d 86 (D . C . Cir . 1983) . The operator
may r e but the prima facie case by showing either that no
protected activity occurred or that the adve rse action wa s in no
way motivated by protected activ ity . If an operator cannot rebut
the prima facie case in this manner it may nevertheless
affirmatively defend by proving that it was also motivated by the
1niner ' s unprotected activities alone. The operator bears the
burden of proof with regard to the affirmative d e fense. Haro

438

v. Magma Copper Company , 4 FMSHRC 1935 (1982). The ultimate
burden of persuasion does not shift from the complainant.
Robinette, supra. See also Boich v. FMSHRC, 719 F . 2d 194 (6th
Cir. 1983); and Donovan v. Stafford Construction Company ,
No . 83-1566 D.C. Cir. (~pril 20, 1984) (specifically approving
the Commission ' s Pasula- Robinette test). See also NLRB v.
Transportation Management Corooration, 462 u.s. 393,~L.Ed.2d
667 (1983), where the Supreme Court approved the NLRB's virtually
identical analysis for discrimination cases arising under the
National Labor Relations ~ct .
Findings of Fact
Having considered the record evidence in its entirety, I
find that a preponderance of the reliable , substantial and
probative evidence establis~es the following findings oE fact :

1. The six miners named herein as complainants along with
their job titles from Nhich they were laid off are: Ricky G.
Saylor, roof bolter; Terry D. Saylor, scoop operator; Darrell
Mayne , scoop operator; Carl Croley , drill operator; Timothy G.
Cox, tailpiece man; and Larry D. Saylor, scoop operator.
2. The individual respondent herein , James Runyon, with
Larry Bryant, owned and operated Smooth Sailing Coal Co1npany
(Smooth Sailing) , and also worked in and around the mine as the
foreman.
3. Smooth Sailing and Runyon were contract mine ·c s for Davis
Branch Coal Company (Davis Branch) meaning that Smooth Sailing
actually mined the coal for which Davis Branch held the mineral
lease for the No. 4 Mine. Davis Branch also held the oermit and
~rovided the bond required by the State of Kentucky an~ "faced
up" the area to be mined by Smooth Sailing.
4. The coal mined by Smooth Sailing at the No. 4 Mine was
sold to the Gatliff Coal Company (Gatliff). Smooth Sailing was
identified in the records of Gatliff as Davis Branch No. 3 .
smooth Sailing had no direct contractual relationship with
Gatliff, but Gatliff was aware that Smooth Sailing and Davis
Branch No. 3 were one and the same .
5. Payments for the coal mined by Smooth Sailing and
trucked to Gatliff , were made directly to Davis Branch from which
Davis Branch deducted a fee and then paid the remainder to Smooth
Sailing by issuing its own checks to Smooth Sailing.

6. The No. 4 Mine began operations on or about May 15,
1987, and was listed with MSHA as being non-producing as of
March 6, 1989 .

439

7 • . Ricky Saylor, more or less the spokesman for all the
complainants by mutual agreement, began working for Runyon in or
about 1983 at an earlier coal mine operation called Wax
Enterprises. He started working for Smooth Sailing, per se, in
ot about 1985. He was laid off on August 26, 1988, along with
the other five miners named herein as complainants.
8. Terry Saylor, brother of Ricky Saylor, . worked for Smooth
Sailing for approximately three years before he was laid off on
August 26, 1988.
9. Darrell Mayne was hired by the respondents in the summer
of 1987 and worked at the No. 4 Mine until being laid off on
August 26, 1988.
10. Carl Croley worked for Mr. Runyon fro~ 1984 or 1985,
until he was laid off from the No. 4 Mine on August 26, 1988.
11. Tim cox worked at the No. 4 Mine fo~ the respondents for
four or five months prior to the layoff of August 26, 1988.

12. Larry Saylor, another brother of Ricky, worked
continuously -for Mr. Runyon between approximately 1982 and the .
August 26, 1988 layoff.
13. Prior to being laid off, all the complainants had
engaged in protected activity, that is, they all had complained
to Runyon or to their spokesman or representative, Ricky Saylor,
about bad roof conditions and the lack of adequate ventilation
- ~ the working areas of the mine.
On many occasions, the other
1nen would look to Ricky Saylor to speak for them to Mr. Runyon.
When the men registered a safety or health-related complaint
about the mining operation with him, he would tell Runyon of it
on their behalf.
14. Ricky Saylor, on behalf of himself and others, had
complained to Runyon on numerous occasions about the lack of
ventilation to the working areas which caused an accumulation of
what Saylor described as "bad air".
Be believed this was caused
by a lack of ventilation curtains (or line brattices) which would
have direct.e d ventilating air into the working places. He .als0
had complained to Runyon on many occasions about "bad top"., i.e.,
unsupported roof, on the "right side" where the ventilation was
also ·extremely poor. More specifically, he complained about the
lack of "safeties" which are necessary as temporary 3Upport to
protect him while he roof bolts.
Saylor also testified that
Runyon's practice of "double-cutting" caused the other
complainants, particularly the drill operator and scoop operators
to have to work under unsupported roof while doing their

440

respective jobs._ "Double-cutting " was described by Saylor as
drilling and shooting two rounds in the face of the coal without
roof bolting in between.
15 . Ricky Saylor had made the safety and health-related
complaints enumerated in Finding of Fact No. 14 to Runyon at
least on a weekly basis for the six months immediately prior to
the August 1988 layoff. He testified that Runyon's response to
these complaints was to the effect that if the current miners
(the complainants) didn't want to work in these conditions, he
had a hundred applications from other men who would be glad to
take their place.
16. Terry Saylor had also on occasion complained to Runyon
about working in the "smoke" and "dead air" in the mine, as well
as having to go out under unsupported roof to get the coal.
Typically, he would come out of the mine and tell Runyon it was
too smoky in there, that he couldn't stand anymore of it. He
would tell Runyon that he needed to hang some curtains to provide
some ventilation. Runyon, instead of hanging curtains , however,
would just go pull the coal out himself.
17. Darrell Mayne also personally complained to Runyon on
many occ:lsions about 11 bad top 11 and "bad air" in the mine,
primarily during the last six months of his employment because of
the worsening conditions at the mine. Runyon would get mad about
it and say there was plenty of people looking for a job.
18. Carl Croley was the drillman for Smooth Sailing.
Croley's job was to drill into the face of the coal, load these
holes with explosives (assisted by the tamp man> and shoot down
the coal. Croley corroborated the fact that there were roof and
ventilation problems at the No. 4 Mine and that he had been
required by Runyon to double-cut the coal faces. Croley had
complained to Ricky Saylor who he knew would take his ~omplaints
to Runyon, as well as to Runyon himself about this . Furthermore,
he had on at least one occasion shortly before he was laid off,
refused to work in an area that had not been roof-bolted.
19. Ricky Saylor also testified and I find it credible that
two to three months prior to the layoff, he and Carl Ccoley had
refused to work on the "right side" of the mine because of
becoming sick on 11 dead air". He testified that this "right side"
had been advanced four to -five hundred feet and .that ':here had
never been any ventilating air directed into this area.
20. Timothy cox was the tailpiece man for 8mooth Sailing and
had also worked as the tamp man, assisting Carl Croley.

441

21. Cox had complained to Runyon about bad ventilation in
the mine whenever he was in the smoke while. greasing the belt.
Moreover, on the few occasions he had worked with Croley as tamp
man, he complained to Ricky Saylor, whom he considered his
spokesman or representative with Runyon, about the bad
ventilation and unsupported roof at the face.
22. Cox had also been present when the other complainants
herein had made safety complaints to Runyon. He observed that
Runyon's response to such complaints was to threaten to hire new
miners.
23. Larry Saylor ~lso testified concerning problems in the
No. 4 Mine with working out under unsupported roof, and
ventilation. He had also voiced complaints to Runyon about the
lack of ventilation and roof support. He likewise observed that
Runyon wo~ld respond angrily to complaints about safety from the
men. Two to three weeks before the layoff Larry Saylor had
refused to work on the "right side" of the No. 4 Mine where there
was absolutely no ventilation. He made this refusal to Runyon
who responded that "he'd find people to run the mine for him."
24. When Runyon initially announced the layoff, he told
Larry Saylor that he wanted him to stay on after the layoff to
i(eep the water pumped out of the mine and to produce
approximately 52 tons of coal per day. Larry Saylor was the
longest tenured mii.1er at the time of the layoff and was also a
qualified foreman. However, within two d~ys, Runyon changed his
mind and told Larry Saylor that he too was laid off.
25. Between November 12, 1985, and August 5, 1986, MSHA
Inspector Earl Lankford issued seventeen (17) section 104(a)
citations, and a section 104(d)(l) citation to Runyon for
violations of Smooth Sailing's roof control plan at the No. 3
Mine.
26. On May 22, 1986, and Aug~st 5, 1986, Lankford found that
no line brattice or curtains had been installed to direct air to
the working section at the No. 3 Mine and therefore issued
section 104(~) citations to Runyon.
27. · The No. 3 Mine and the No. 4 Mine were similar
~hich were mined in consecutive order by Smooth
Sailing. The No. 3 Mine was abandoned prior to the start of
operations at the No. 4 Mine on or about May 15, 1987.
oper~tions

28.

MSHA Inspector James Langley issued a citation on
12, 1988, at the No. 4 Mine, when he found that a cut had
not been bolted as required by the roof control plan.
~ugust

442

29. MSHA Inspector Richard Gibson inspected the No. 4 Mine
in December, 1987 and November, 1988. During both inspections he
issued citations for the failure of Smooth Sailing to have
properly installed line brattices.
30. MSHA Inspector Charles Blume issued a citation at the
No. 4 Mine on June 1, 1988, for the failure of Smooth Sailing to
provide a line brattice to the No. 3 heading. Inspector Blume
testified that there was no line brattice at all in this heading.
The face was approximately 30 feet from the last open crosscut.
31. At the time of the August 26, 1988 layoff, there were
ten miners, including the six complainants, working at the Smooth
Sailing No. 4 Mine. After the layoff, Runyon and the Gray
brothers worked the mine until Runyon left for college in the
fall. After this, Ricky and Ronnie Gray worked the mine
themselves until the first new miner was hired on September 19,
1988. Another new miner was hired on or about October 10, 1988
and another on or about October 31, 1988. After the layoff, it
is noteworthy that Runyon never offered any of the complainants
their jobs back at an hourly rate or on any other basis.
32. The claimed basis (although never proven) for the layoff
by respondents was a notification by Gatliff that Smooth
Sailing's output that they would accept had been cut to 52 tons
per day. Prior to that time, Gatliff would take all the coal
that Smooth Sailing could produce.
33. Purportedly, a truck driver named "Spider" had notified
Smooth Sailing that they were cut back to 52 tons per day.
Runyon was not personally present at the time and to confirm this
information, he states he called Sam Carr, a Gatliff employee,
who told him that they were cut back until December. Carr,
however, doesn't believe he told him that. Also casting doubt on
Mr. Runyon's version of the cut-back is the fact that after
August 26, 1988, and up to the time the No. 4 Mine was shut down
on March 6, 1989, Smooth Sailing never shipped as little as 52
tons a day Con a weekly basis) except the weeks of September 1,
1988, September 15, 1988, October 6, 1988 and March 10, 1989
<four days after it shut down). The actual coal production and
sales for Smooth Sailing between August 26, 1988 and March 1989
when Runyon shut the mine down show that Smooth Sailing
continuously and consistently produced more than 52 tons per day.

34. Runyon also testified that he believed the complainants
wouldn't work if limited to producing 52 tons per day. However,
the six complainants had never told Runyon that they would not
work producing 52 tons per day and had, prior to August 26, 1988,

443

continued to work for Runyon even when the production tonnage was
below 52 tons per day (on a weekly basis) or even zero.
DISCUSSION WITH FURTHER FINDINGS
The Secretary has demonstrated to my satisfaction that the
six complainants named herein .engaged in activity protected under
section 105(c) of the Mine Act by making repeated complaints
about unsafe and/or unhealthful conditions at the respondent's
No. 4 Mine •. After these complaints had ·gone on for some period
of time, the six were laid off and have never been offered a
chance to return to work.
Respondents claim that the layoff was motivated only by a
cut-back in the purchase of coal instituted by Gatliff on the
date of the layoff. However, the Secretary has amply
demonstrated the pretextual nature of this "justification".
Documents prepared in the o~dinary course of business by Gatliff
employees show that within one week of the layoff Smooth Sailing
was scheduled to produce 1600 tons of high quality stoker coal
for September 1988 and as of November 3, 1988, Smooth Sailing was
scheduled to produce 400 tons per week or 80 tons per day of coal.
Furthermore, the fact that Runyon hired three new employees
shortly thereafter is further evidence that the layoff was
motivated by the complainants' protected activity. I therefore
find that the respondents have failed to show that there was a
valid economic reason for the layoff or that the layoff was not
motivated by the complainants' protected activities.
In summary, I find and conclude that the complainants
engaged in repeated and justifiable protected activity over a
protracted period of time prior to the layoff and that the layoff
was motivated exclusively by those protected activities.
Although there is no direct evidence of this latter point, I find
the circurnstantial evidence to be strongly supportive of this
conclusion. The operator has failed . to rebut this prima facie
case of discrimination under the Act and therefore I find a
violation of section 105(c) of the Mine Act to be proven as
alleged in this instance.
ORDER
Based on th~ aoove findings of fact and conclusions of law,
IT IS ORDERED:
1. That the respondents shall reinstate the . herein named
six miners to the positions from which they were terminated at
the No. 4 Mine, on August 26, 1988, at the same rates of pay, on

444

the same shift and with the same or equivalent duties, including
seniority rights and all employee benefits to which they were
entitled to immedia·t ely prior to their discharge, at such time as
the No. 4 Mine should again become a producing mine.
2. That the respondents shall pay back wages with interest.
thereon computed in accordance wi_th the Commission decision in
UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 <1988) and provide
all other employment bene.E its to the six miners which were lost
because of their unlawful layoff. The back wages to which the
six complainants are due shall be computed as follows:
a. The four miners who prior to the unlawful layoff
were paid $.90 per ton (Larry, Ricky, and Terry Saylor, and Carl
Croley) shall be paid for each ton produced by Smooth Sailing
from ~ugust 26, 1988, until March 10, 1989, the date of the last
payment from Davis Branch to Smooth Sailing; and
b. Darrell Mayne and Timothy Cox shall be paid at their
regular rates of pay, for forty hours per week from the date they
were laid off on August 26, 1988, until March 6, 1989, the date
the No. 4 Mine was listed with MSHA as non-producing.
3. That the respondents shall within 30 days of the date of
this decision, pay to the Secretary a civil penalty in the amount
of $2000 for the violation found herein.

Law Judge
Distribution:
Thomas ~. Grooms, Esq., Office of the Solicitor, U.S. Dep::irtment
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville,
TN 37215 (Certified Mail)
Guy E. Millward, Jr., Esq., Millward and Jewell, P.O. Box 650,
Barbourville, KY 40906 (Certified Mail)
/ml

445

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

MAR 13 1990
ENERGY FUELS COAL, INC.
Contestant

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

..
.

.
.
..
..

CONTEST PROCEEDINGS
Docket No. WEST 89-237-R
Citation No. 3077172~ 5/2/89
Docket No. WEST 89-239-R
Citation No. 3077170~ 5/2/89
Docket No. WEST 89-240-R
Citation No. 3077169; 5/2/89
Docket No. WEST 89-243-R
Citation No. 3077166; 4/27/89
Docket No. WEST 89-245-R
Citation No. 3077164; 4/27/89
Docket No. WEST 89-248-R
Citation No. 3077161; 4/25/89

.:

Docket No. WEST 89-249-R
Citation No. 2875340; 4/25/89
Docket No. WEST 89-250-R
Citation No. 2875339; · 4/25/89
Docket No. WEST 89-252-R
Citation No. 2875337; 4/25/89

.
SECRETARY OF LABO~,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
·
Petitioner

v.
ENERGY FUELS COAL, INC.,
Respondent

Docket No. WEST 89-254-R
Citation No. 2875335; 4/25/89

:

Southfield Mine
Mine I.D. 05-03455

.
.
.

CIVIL PENALTY PROCEEDING

:

Southfield Mine

..

446

Docket No. WEST 89-435
A.C. No. 05-03455-03572

DECISION APPROVING PARTIAL SETTLEMENT
Appearances:

Phillip D. Barber, Esq., Welborn, Dufford, Brown &
Tooley, Denver, Colorado,
for Contestant/Respondent;
Margaret A. Miller; Esq., Office of the Solicitor,
u.s . Department of Labor, Denver, Colorado,
for Petitioner/Respondent

Before Judge Lasher:
At an on-the-record prehearing conference in Denver,
Colorado, on February 14, 1990, the parties reached a settlement resolving 10 of the 20 Citations involved in Penalty Docket
WEST 89-435 each of which Citations is the subject of a separate
Contest proceeding as reflected in the caption. As part of the
settlement reached, as to all 10 Cita.tions, which settlement
was approved from the bench at hearing, Contestant/Respondent
Energy Fuels Coal, Inc. (herein Energy Fuels) agreed to the
withdrawal of its Notice of Contest in each of the related
Contest proceedings and to the dismissal of such proceedings
(T. 6,7, 8-25).
As to 5 of the 10 Citations, Energy Fuels agreed to pay in
full MSHA's proposed penalty assessments. As to the remaining
5 citations, the penalty reductions reflected in the schedule
below were based on re-evaluation of the . degree of gravity of
such violations and MSHA's agreement to mollify its original
penalty appraisals thereof.
Contest
Docket No.

Initial
Agreement

Agreed

Citation No.
3077172
3077170
3077169
3077166
3077164
3077161
2875340
2875339
2875337
2875335

WEST 89-2·37-R
WEST 89-239-R
WEST 89-240-R
WEST 89-243-R
WEST 89-245-R
WEST 89-248-R
WEST 89-24'9-R
WEST .89-250-R
WEST 89:...252-R
WEST 89-254-R

$79
79
79
126
85
79
147
20
20
20

$79
40
40
63
45
79
. 75
20
20
20

447

Penalt~

ORDER
1.
The penalties agreed to by the parties in the total sum
of $481 as set forth hereinabove are here assessed and Energy
Fuels shall pay the same to the Secretary of Labor within 30 days
from the date hereof if it has not previously done so.
2. Citation No. 3077170 is modified to delete the "Significant and Substantial" designation thereon: Citation No. 3077169
is modified to delete the "Significant and Substantial designation thereon; Citation No. 3077166 is modified to delete the
"Significant and Substantial" designation theron; Citation No.
3077161 is modified to delete the "Significant and Substantial"
designation thereon: Citation No. 2875340 is modified to change
Paragraph lOD thereof to reflect that "6" persons were affected
by the violation rather than "10;" Citations numbered 2875339,
2875337 and 2875335 are modified to change Paragraph 9C thereof
to charge a violation of 30 C.F.R. 75.1103-8(b) rather than 30
C.F.R. 75.1103-8(a) and to change Paragraph 8 therof to reflect
the gravamen of the violation described to be that there was no
record of the required inspections having been made, rather than
that such inspections had not actually been made.
3. Contest Dockets numbered WEST 89-237-R, 239-R, 240-R,
243-R, 245-R, 248-R, 249-R, 250-R, ~52-R and 254-R are dismissed.

'f

.

'1!;:.:~4.(:

4

_,.(:

/.

~~~·/

J·1

~ichael A. Lasher, Jr:
Administrati've Law Judge

Distribution:
Ppillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700
Broadway, Suite 1700, Denver, CO 80290-1701 (Certified Mail)
Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
co 80294 (Certified Mail>
/ot

448

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280. 1244 SPEER BOULEVARD
DENVER. CO 80204 .

MAR 131990

ENERGY FUELS COAL, INC.,
Contestant

.
..

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

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

v.
. ENERGY FUELS COAL, INC. 1 .
Respondent

.
.
.

.
.
.
.

CONTEST PROCE~DING
Docket No . WEST 89-247-R
Orde~ No. 3077162; 4/26/89
southfield Mine
Mine I.D. 05-03455

CIVIL PENALTY PROCEEDING
Docket No. WEST 90-8
05-03455-03575

A.C~ No.

Southfield Mine

DECISION APPROVING SETTLEMENT
Appearances;

Before:

Phillip D. Barber, Esq., Welborn, Dufford, Brown &
Tooley, Denver, Colorado,
for Contestant/Respondent;
Margaret A. Miller, Esq., Office of the Solicitor,
u.s. Department of Labor, Denver, Colorado,
for Petitioner/Respondent.

Judge Lasher

The parties, at the prehearing conference held on-the-record
in Denver, Colorado on February 14, 1990, reached a settlement
fully resolving the issues in these two related (Penalty arid
Contest> dockets. Penalty Docket WEST 90-8 contains two enforcement documents, Citation No. 2875336 and a related Section 104(b)
Order No. 3077162·, which Order is also the subject of Contest
Proceeding WEST 89-247-R. Pursuant to their accord, the parties
agreed that the "Significant and Substantial" designation on
the Citation should be deleted and the $225 penalty originally
proposed by MSHA therefor should be reduced to $125 based on
such modification. As a further part of their settlement, the
Section 104(b) (Failure to Abate) Order issued after Citation
No. 2875336 is to be vacated. Based on such vacation, Contestant
Energy Fuels withdraws its contest in Docket WEST 89-247-R. The
approval of settlement issued from the bench (T. 14-18) is here
affirmed.

449

ORDER
Citation No . 2875336 is MODIFIED to delete the "Significant
and Substantial" designation thereon and is otherwise affirmed.
Withdrawal Order No. 3077162 is VACATED.
Docket No. WEST 89-247-R, having been withdrawn, is DISMISSED. Penalty Docket No. WEST 90-8, having been fully resolved, is DISMISSED.
Respondent, if it has not previously done so, shall pay the
Secretary of Labor within 30 days from the date hereof the sum of
$125 as and for the civil penalty for Citation No. 2875336 above
assessed.

$.;~:~; ~/ /(' ~~~~~ r
Michael A. Lasher, Jr.
'Administrative Law Judge

Distribution:
Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700
Broadway, Suite 1700, Denver, CO 80290-1199 {Certified Mail)
Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor,· 1585 Federal Building, 1961 Stout Street, Denver,
CO · (Certified Mail)
/ot

450

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF AD~INISTRATIVE LAW JUDG"ES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER. CO 80204

HAR 13_1990
CONTEST PROCEEDING

ENERGY FUELS COAL, INC.,
contestant

Docket No. WEST 89-255-R
Citation No. 2875334;4/25/89

v.

Southfield Mine
Mine I.D. 05-03455

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

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

CIVIL PENALTY PROCEEDING
:

v.

Docket No. WEST 89-434
A.C. No. 05-03455-03571
Southfield Mine

ENERGY FUELS COAL, INC.,
Respondent
DECISION APPROVING PARTIAL SETTLEMENT
Appearances:

Before:

Phillip D. Barber, Esq., Welborn, Dufford, Brown &
Tooley, Denver, Colorado,
for Contestant/Respondent;
.
Margaret A. Miller, Esq., Of~ice of the Solicitor,
u.s. Department of Labor, Denver, Colorado,
for Petitioner/Respondent.

Judge Lasher

At a prehearing conference held on-the-record in Denver,
Colorado, on February 14, 1990, the parties reached an amicable
resolution as to Citation No. 2875334 - one of 20 enforcement
documents involved in Penalty Docket WEST 89-434. On the basis
of a -reduced evaluation of the gravity of the violation and a
modification of Section lO{D) of the Citation, the parties agreed
that a penalty of $100 rather than the original assessment of
$168 was appropriate and moved for approval of such settlement
(T. 26). This motion and Energy Fuels' corollary motion to withdraw its contest in Docket No. WEST 89-255-R were approved from
the bench and such ruling (T. 25-26> is here affirmed.

451

ORDER
1. Contestant/Respondent Energy Fuels, if it has not
previously done so, shall pay the Secretary of Labor within
30 days from the date hereof, the sum of $100 as and for a civil
penalty for Citation No. 2875334.
2. Section lO(D) of Citation No. 2875334 is MODIFIED to
show the "Number of Persons Affected•' by the violation to be
"1" rather than "2" , 11 7.. or any other number.
3.

Contest Docket No. WEST 89-255-R is DISMISSED.

4. Penalty Docket No. WEST 89-434 will remain on the
Judge's docket pending resolution of the remaining Citations
contained therein.

~~~_// c? ~~~;"/.

c

Michael A. Lasher, Jr.
Administrative Law Judg e

Distribution:
Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700
Broadway, Suite 1700, Denver, CO 80290-1199 (Certified Mail>
Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
CO 80294 (Certified Mail>
/ot

452

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280. 1244 SPEER BOULEVARD
DENVER. CO 80204

ENERGY FUELS COAL, INC.,
Contestant

MAR 13 1990

CONTEST PROCEEDING
Docket No. WEST 89-273-R
Citation No. 2875322;4/13/89

v~

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

Southfield Mine
Mine I.D. 05-03455

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 89-434
A.C. No. 05-03455-03571

v.

Southfield Mine

ENERGY FUELS COAL, INC.,
Respondent
DECISION APPROVING PARTIAL SETTLEMENT
Appearances:

Before:

Phillip D. Barber, Esq., Welborn, Dufford, Brown &
Tooley, Denver, Colorado,
for Contestant/Respondent;
Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner/Respondent~

Judge Lasher

At the prehearing conference held on-the-record in Denver,
Colorado, on February 14, 1990, the parties reached various
settlement agreements revolving some 18 enforcement documents
(Citations and Orders) which were the subject of both Contest
and Penalty proceedings. With respect to Citation No. 2875322
- one of the 20 enforcement documents involved in Penalty Docket
WEST 89-434 - the Secretary, on the basis of proof of violation,
moved to vacate such CT. 27). Such motion was approved as was
Energy Fuel's corollary motion to withdraw its contest in Docket
No. WEST 89-273-R (T. 27-28). See Commission Rule 11 (29 C.F.R.
2700.11>~
such bench ruling is here affirmed.

453

ORDER

1.

Citation No. 2875322 is VACATED·.

2.

Contest Docket No . WEST 89-273-R is DISMISSED.

3. Penalty Docket No. WEST 89-434 will remain on the .
Judge ' s docket pending resolution of the remaining Citations
contained therein.

~

I
,.
- ~
?
'/.!(
-f-/:" ' / ( ' //.
-~:~·/.
%1 '
V/~~/Jkt~· £./
, /' 1
M~chael A. Lasher, Jr .

Administrative Law Judge

Distribution:
Phillip D. Barber, Esq . , Welborn, Dufford, Brown & Tooley, · 1700
Broadway, Suite 1700, Denver, CO 80290-1199
(Certified Mail>
Margaret A. Miller, Esq., Office of the Solicitor, U . S . Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
CO (Certified Mail)
·
/ot

454

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

MAR 13 1990
ENERGY FUELS COAL, INC.,
Contestant

CONTEST PROCEEDING
Docket No. WEST 89-274-R
Citation No. 2875321;4/12/89

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

Southfield Mine
Mine I.D. 05-03455

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 89-434
A.C. No. 05-03455-03571

v.

Southfield Mine

ENERGY FUELS COAL, INC.,
Respondent
DECISION APPROVING PARTIAL SETTLEMENT
Appearances:

Before:

Phillip D. Barber, Esq., Welborn, Dufford, Brown &
Tooley, Denver, Colorado,
for Contestant/Respondent;
Margaret A. Miller, Esq . , Office of the Solicitor,
u.s. Department of Labor, Denver, Colorado,
for Petitioner/Respondent. ·

Judge Lasher

At a prehearing conference held on-the-record in Denver,
Colorado, on February 14, 1990, the parties reached an amicable
resolution as to Citation No. 2875321 - one of 20 enforcement
documents involved in Penalty Docket WEST 89-434. On the basis
of a reduced evaluation of the gravity of the violation, the
parties agreed that a penalty of $50 rather than the original
assessment of $98 was appropriate and moved for approval of such
settlement (T. 27). This motion and Energy Fuels' corollary
motion to withdraw its contest in · Docket No. WEST 89-274-R were
approved from the bench and such ruling (T. 26-27) is here
affirmed.

455

ORDER
1. Contestant/Respondent Energy Fuels, if it has not
previously done so, shall pay the Secretary of Labor within
30 days from the d~te hereof, the sum of $50 as and for a civil
penalty for Citation No. 2875821.
2.

Contest Docket No. WEST 89-274-R is DISMISSED.

3. Penalty Docket No. WBST 89-434 will remain on the
Judge's docket pending resolution of the remaining Citations
contained therein.

~;;,~~< 4- c;6ri:i::r A' __

Michael A. Lasher, Jr .
Administrative Law Judge

Distribution:
Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700
Broadway, Suite 1700, Denver, CO 80290-1199
(Certified Mail)
Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
CO 80294 (Certified Mail)
/ot

456

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER. CO 80204

MAR 13 1990

CONTEST PROCEEDING

ENERGY FUELS COAL, INC.,
Contestant

Docket No. WEST 89-290-R
Citation No. 3077181;5/11/89

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

Southfield Mine
Mine I.D. 05-03455

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 89-449-A
A.C. No. 05-03455-03569

v.

Southfield Mine

ENERGY FUELS COAL, INC.,
Respondent
DECISION APPROVING PARTIAL SETTLEMENT
Appearances:

Before:

Phillip D. Barber, Esq., Welborn, Dufford, Brown &
Tooley, Denver, Colorado,
for Contestant/Respondent;
Margaret A. Miller, Esq., Office of the Solicitor,
u.s. Department of Labor, Denver, Colorado,
for Petitioner/Respondent.

Judge Lasher

At the prehearing conference held on-the-record in Denver,
Colorado, on February 14, 1990, the parties reached various
se_ttlement agreements involving some 18 enforcement documents
(Citations and Orders> which were the subject of both Contest
and Penalty proceedings. With respect to Citation No. 3077181
- one of the 4 enforc~nent documents involved in Penalty Docket
WEST 89-449-A - the Secretary determined that no violation had
occurred and moved to vacate such (T. 29). Such motion was
approved on the record as was Energy Fuel's corollary motion to
withdraw its contest in Docket No •. WEST 8.9-290-R (T. 28-29).
See Commission Procedural ~ule 11 (29 C.F.R. 2700.11). Such
bench ruling is here affitmed~

457

ORDER
Citation No. 3077181 is VACATED.
Contest Docket No. WEST 89-290-R is DISMISS.ED.
Penalty Docket No. WEST 89-449-A will remain on the Judge's
docket pending resolution of the remainin_g Citations contained
therein.

dt.A I f l .-" _/.'
/.~·-:'~·!'.:N/ /t'·

di /

4
~../C't'.(' ~ I

M~chael A.
asher, Jr .
Administrative Law Judge

Distribution:
Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700
Broadway, Suite 1700, Denver, CO 80290-1199 (Certified Mail)
Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver 1
CO (Certified Mail)
/ot

458

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, co 80204

ENERGY FUELS COAL, INC.,
Contestant

.

MAR 13 1990

CONTEST PROCEEDING
Docket No . WEST 89-291-R
Citation No. 3077180;5/11/89

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

SEC~ETARY

.

Southfield Mine
Mine I.D. 05-03455

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

v.

CIVIL PENALTY PROCEEDING
:

Docket No. WEST 89-449-A
A.C. No. 05-03455-03569

:

Southfield Mine

.

ENERGY FUELS COAL, INC.,
Respondent
DECISION APPROVING PARTIAL SETTLEMENT
Appearances:

Before:

Phillip D. Barber, Esq., Welborn, Dufford, Brown &
Tooley, Denver, Colorado,
for Contestant/Respondent;
Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner/Respondent.

Judge Lasher

At the prehearing conference held on-the-record in Denver,
Colorado, on February 14, 1990, the parties reached various
settlement agreements involving some 18 enforcement documents
(Citations and Orders) which were the subject of both Contest
and Penalty proceedings. With respect to Citation No. _3077180
- one of the 4 enforcement documents involved in Penalty Docket
WEST 89-449-A - the parties settled the matter on the basis of ·
Respondent's agreement to pay in full C$79) MSHA's proposed
penalty and moved for approval of such agreement {T. 32). Such
motion was approved as was Energy Fuel's corollary motion to
withdraw its contest in Docket No . WEST 89-291-R CT. 32-33}.
Such bench ruling is here affirmed.

459

ORDER
1 . Contestant/~espondent Energy Fuels shall pay the
Secretary of Labor the sum of $79 as and for a c i vil penalty
for Citation No. 3077180.
2.

Contest Docket No . WEST 89-291-R is DISMISSED.

3 . Penalty Docket No. WEST 89-449-A will remain on the
Judge's docket pending resolution of the remaining Citations
contained therein.

~;;.-~ d-;. //- ~.; d.,.-y ./f. .
Michael A. Lasher , Jr.
Administrative Law Judge

Distribution :
Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 17 00
Broadway, Suite 1700, Denver, CO 80290-1199 (Certified Mail)
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
co (Certified Mail>
/ot

460

FEDERAL MINE SAFETY AND HEALTH REVIEW CO~MISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

ENERGY FUELS COAL, INC.
Contestant

MAR 131990

CONTEST PROCEEDING
Docket No. WEST 89-293-R
Citation No. 3077178; 5/11/89

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS'rRATION (MSHA),
Respondent

Southfield Mine
Mine I.D. No. 05-03455

DECISION
Appearances:

Before:

Phillip D. Barber, Esq., Welford, Dufford, Brown &
Tooley, Denver, Colorado,
for the Contestant;
Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for the Respondent.

Judge Lasher:

The parties have reached a settlement covering the sole
Citation (No . 3077178) involved and, in accord therewith,
Contestant having moved to withdraw its contest, pursuant
to 29 C.F.R. 2700.11 the same is approved, and this Contest
proceeding is dismissed.
Although there is no related penalty proceeding involving
Citation No. 3077178, as part of their settlement agreement
reached on the record of a prehearing conference in Denver,
Colorado on February 14, 1990 (T. 29-30), Contestant, Energy
Fuels Coal, Inc., has agreed to pay a penalty of $50 for the
violation and such is here approved and Contestant is ordered to
pay such within 30 days of this Decision. Further, in effectuation of the settlement, Citation No. 3077178 is ordered MODIFIED
to delete the "Significant and Substantial" designation thereon.

"Z ·..·. /.:r. / £"1"· ;-&:. f / ,-,-· .'' / [ "
J

•

•••

/

'

•

M1chael A~ Lasher, Jr.
Administrative Law Judge

Distribution:
Phillip D. Barber, Esq., Welford, Dufford, Brown & Tooley, 1700
Broadway·, Suite 1700, Denver, CO 80290-1701
(Certified Mail)
Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
CO 80294
(Certified Mail>
·
/ot

461

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280. 1244 SPEER BOULEVARD
DENVER. co 8'0 204

MAR 13 1990

CONTEST PROCEEDING

ENERGY FUELS COAL, INC.
Contestant

Docket No. WEST 89-294-R
Citation No. 3077177; 5/11/89

v.

Southfield Mine
Mine I.D. No. 05-03455

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

DECISION
Appearances:

Before:

Phillip D. Barber, Esq., Welford, Dufford, Brown &
Tooley~ Denver, Colorado,
for the Contestant;
Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for the Respondent.

Judge Lasher:

The parties have reached a settlement covering the sole
Citation (No. 3077177) involved and, in accord therewith,
Contestant having moved to withdraw its contest, pursuant to
29 C.F.R. 2700.11 the same is approved, and this Contest proceeding is dismissed.
Although there is no related penalty proceeding involving
Citation No. 3077177, as part of their settlement agreement
reached on the record of a prehearing conference in Denver,
Colorado on February 14, 1990 (T. 31-32), Contestant, Energy
Fuels Coal, Inc., has agreed to pay a penalty of $112 for the
violation and such is here approved and Contestant is ordered
to pay such within 30 days of this Decision.

0:;.~_.--{;,-

( ' ~ ~. . ·. .,_.~_.,<4. ./ ./.· .

Michael A. Lasher, ·Jr.
Administrative Law Judge

Distribution:
Phillip D. Barber, Esq., Welford, Dufford, Brown & Tooley, 1700
Broadway, Suite 1700, Denver, CO 80290-1701 (Certified Mail)
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
CO 80294 (Certified Mail)
/ot

462

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

MAR 131990
BIG HORN CALCIUM COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. WBST 90-31-RM
Citation No. 3455166~ 7/24/89

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS'rRATION (MSHA) ,
Petitioner

.
..

Granite Canyon Quarry

ORDER DISMISSING CONTEST PROCEEDING
Before:

Judge Cetti

I have before me the Secretary of Labor's Motion to
"Dismiss" the contest of Citation No. 3455166, issued on
July 24, 1989, for the failure of Big Horn Calcium to contest
the Citation within 30 days of receipt, as required by Section
105(d) of the Mine Act, 30 u.s.c. § 815(d), and Section 2700.20
of the Commission's Rules.
The Secretary in support of the motion states that on
July 24, 1989, MSHA Inspector Thomas L. Markve issued Citation
No. 3455166 for violation of 30 C.F.R. § 56.11001 to Big Horn
Calcium Company, a contractor working at the Granite Canyon
Quarry. The Secretary contends that the facts clearly establish
that Mike Latka, Big Horn Calcium's supervisor and company agent
on the property, was served with the citation on July 24, 1989,
and Mr. Latka . participated in the close-out conference on
July 25, 1989, where both Citation Nos. 3455165 and 3455166 were
discussed.
I issued a Notice of Intention advising the parties of my
intention to grant the Motion of Dismissal unless good cause to
the contrary be shown in writing within the next 10 days.
In response to the "Notice of Intention" Big Horn stated in
part as follows:
"2. Big Horn does not maintain a corporate office
at the Granite Canyon Quarry or in Cheyenne, Wyoming,
staffed by corporate officers. Citation No. 3455166
was not received by Big Horn at its corporate office
in Billings, Montana.

463

3. Citation No. 3455166 apparently was tendered by
an MSHA inspector to local personnel at Big Horn's
Granite Canyon Quarry. The receipt by subordinate
personnel at the Granite Canyon Quarry of Citation
3455166 does not constitute receipt within the meaning
of the Act. See, J.I. Hass Co. Inc., 1981 CCH OSHD
~ 25,375 (3d Cir. 1981); Buckley & Company Inc. v.
Secretary of Labor, 507 F.2d 78 (3d Cir. 1975).
4. Local quarry personnel inadvertently failed to
notify and provide Big Horn a copy of this citation.
The administrative error and neglect of subordinate
personnel at the Granite canyon Quarry to promptly
forward Citation No. 2455166 to authorized corporate
representatives was excusable and inadvertent. See,
P & A Construction Co . , Inc., 1981 CCH OSHD ~ 25,783
(1981); Special Coating Systems of New Mexico, Inc.,
1980 CCH OSHO ~ 24,904 (1980). Big Horn did not
initially submit a notice of intent to contest Citation 3455166 due to mistake, inadvertent surprise and
excusable neglect within the meaning of Rule 60(b),
Federal Rules of Civil Procedure.
5. Big Horn has made a good faith effort to comply
with the procedural requirements of the Act, and has
.promptly responded to all known citations received
by it within the meaning of the Act. Upon receipt
in late September, 1989, of an Accident Investigation Report, Big Horn became aware of a reference to
Citation 3455166. Big Horn attempted to locate a
copy of that citation but could not find a record of
having received the citation • • • • Big Horn sutsequently obtained a copy from the MSHA office in Denver,
Colorado, and filed its notice of contest."
The Secretary replied to Big Horn's response in part as
follows:
"Big Horn's legal position is clearly wrong.
The statutory scheme of the 1977 Mine Act is very
different from the 1970 Occupational Safety and
Health Act. Section 104(a) of the Mine Act, requires that MSHA issue citations and withdrawal
orders for violations of Mine Act, or any mandatory
health or safety standards, with reasonable prompt· ness. Requiring MSHA inspectors to issue citations

464

to mine operators at their corporate offices, instead
of to their agents on mine property, would restrict
MSHA's enforcement actions and limit the mine operator's ability to abate violations rapid_ly.
It is beyond dispute that mine operators are
liable for the acts of their agents under the Mine
Act. Allied Products Co . v . FMSHRC, 666 F.2d 890
(5th Cir. 1982) . Mr. Latka was clearly an agent as
defined by Section 3(e) of the Mine Act, and his
receipt of the citation is binding on Big Horn • .
The OSHA cases cited by Big Horn relate to a
regulatory and statutory scheme in which the notice
of proposed penalties are served upon a corporate
employer at the same time the citation is issued.
Thus, there is always a delay between the date of
the inspection and the issuance of citations under
OSHA.
Mine Act citations and orders are issued at the
time of the inspection in most cases, and such documents are served on a responsible official at the mine
site. Furthermore, a mine operator may challenge the
citation either immediately after its issuance or
during a later penalty proceeding. An OSHA contest
of a citation always occurs after both the citation
and penalty proposed have been issued. Therefore,
the rationale concerning receipt of a .citation by a
corporate employer in an OSHA case does not apply to
serving an operator's agent on the mine property in
a MSHA c~se."
·
On March 2, 1990, the parties filed joint written stipulations so as to avoid need for a hearing on the Secretary's
pending Motion to Dismiss.
Agreed Stipulations
1.
On July 24, 1989, MSHA Inspector Thomas L. Markve issued
Citation No . 3455166 to Mike Latka, a supervisor employed by ·Big
Horn at the Granite Canyon Quarry, located in Granite, Wyoming.

465

2. Big Horn states, and the Secretary does not dispute,
that Mr. Latka did not forward a copy of Citation No. 3455166 to
Big Horn's corporate office located in Billings, Montana.
3. Big Horn and the Secretary stipulate that with the exception of . the jurisdictional issue raised herein, all ot her ·
issues raised in this contest proceeding can also be ~ aised in·
the pending civil penalty proceeding in Docket No. WEST 90-80-M.
Discussion
Upon careful review of the entire record I adopt and incorporate by reference the rationale set forth in the Secretary's
above quoted reply to Big Horn.
It is also noted that 30 C . F.~ . § 41.1 and 30 C.F.~. § 52 . 2
(c)(2) and several other 30 C.F . R. sections define 11 0perator" as
including any agent or person charged with the responsibility
for the operation or supervision of a mine and 30 C.F.R. § 41.11
requires an operator to notify MSHA of "the name and address of
the person at the mine in charge of health and safety." (Emphasis
added) .
In Island Creek Coal Company v . Secretary of Labor and
United Mine Workers of America, FMSHRC Docket No. PIKE 79-18
(August 3, 1979), the Review Commission -affirmed the Administrative Law Judge's dismissal of Island Creek Coal Company's Application for Review "as not having met the jurisdictional filing
period established by Section 105(d) of the Act." In that case
the Application for Review was not received until 3 days after
the 30-day filing period.
Stipulation No. 2 quoted above, conforms with existing
practice. Under Quinland Coals, Inc., 9 FMSHRC 1641 (September
1987) the failure to file a notice of contest does not preclude
the mine operator from ch~llenging in a penalty proceeding the
fact of violation or any special findings contained in a citation
or order including that the· violation was of a significant and
substantial nature or was caused by the operator's unwarrantable
failure to comply with the standard.

466

ORDER
The Secretary's motion to dismiss the contest of Citation
No. 3455166 as not having met the filing period established by
Section 105(d) of the Mine Act is granted. The above captioned
contest proceeding is dismissed.

Judge

Distribution:
James J. Gonzales, Esq., Holland & Hart, 555 17th Street, Denver,
CO 80201 (Certified Mail)
Robert A. Cohen, Esq., Office of the Solicitor, u.s. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
/ot

467

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

MAR 151990
DISCRIMINATION PROCEEDING

TERRY FOWLER,

v.

Complainant

ATLAS SERVICES CORPORATION,
Respondent
ROGER D. BROADWATER,
Complainant

v.

ATLAS SERVICES CORPORATION,
Respondent

Docket No. PENN 88-267-D
MSHA Case No. PITT CD 88-19
Nemacolin Mine
DISCRIMINATION PROCEEDING
Docket No. PENN 88-281-D
MSHA Case No. PITT CD 88-20
Nemacolin Mine
DECISIONS

Appearances:

Thomas Whitney Rodd, Esq., and James B.
Zimarowski, Esq., Morgantown, West Virginia, for
the Complainants;
Robert L. Ceisler, Esq., and Thomas A. Lonich,
Esq., CEISLER RICHMAN SMITH, Washington,
Pennsylvania, for the Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern discrimination complaints filed by
the complainants against the respondent pursuant to section
105(c) of the Federal Mine ·safety and Health Act of 1977. The
complainants filed their initial complaints with the Secretary of
Labor, Mine Safety and Health Administration (MSHA), and were
advised by MSHA that after review of the information gathered
during the investigation of their complaints, MSHA"determined
that violations of section 105(c) had not occurred. The complainants then filed their complaints with the Commission, and
hearings were held in Washington, Pennsylvania. The partie·s
filed posthearing arguments which I have considered in the course
of my adjudication of these matters.
The record reflects that the Nemacolin Mine was at one time
an active producing mine, and that it was operated by the LTV

468

Steel Corporation. The respondent was an independent contractor
performing contract services at t he mine incident to its dismantling and sealing, and the mine was still under the ownership of
the LTV Steel Corporation while this work was being performed.
Complainant Terry Fowler alleges that he was terminated from his
employment with the respondent for reporting safety violations to
mine management ~nd to MSHA and state mine inspectors. Complainant Roger D. Broadwater alleges that he was terminated from
his employment for speaking with an MSHA inspector who was at the
mine site conducting an investigation into an alleged safety
violation.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act _of 1977,
30 u.s.c. § 301 et seq .
2 . Sections 105(c) (1), (2) and (3) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. §§ 815(c) (1), (2) and
( 3) •

3.

Commission Rules, 29 C.F.R .

§

2700.1, et seq.

Issues
The issues presented in these proceedings are (1) whether
the complainants engaged in any safety activities protected by
the Act, and if so, (2) whether the respondent retaliated against
them by terminating their employment for engaging in such
activities . Additional issues raised by the parties are identified and discussed in the course of these decisions.
Complainants' Testimony and Evidence
James Vavrek, testified that he worked at the Nemacolin Mine
for 12 years as a continuous-miner operator, repairman, and
electrician, and also served as a union safety walkaround and
committeeman. He confirmed that the mine ceased operating in
August, 1986, because it was "basically mined out." After he was
laid off, he was hired by the respondent in March, 1987, as part
of several crews working to seal the underground shafts and the
slope. He worked as a general laborer, and in April, 1988, was
appointed the safety director because of his knowledge of the
mine safety rules. He confirmed that he would report saf~ty
violations to project superintendent Jay McDowell and job superintendent Bill Parshall, but primarily to Mr. Parshall (Tr.
17-27).
Mr. Vavrek stated that he was appointed safety director the
day after a Federal inspector carne to the mine and issued some
"(d) orders" shutting down the job site at the slope. Prior to
this inspection, Mr. Fowler had registered "certain observations

469

and complaints about problems on the slope" to 11 Arty," an
individual who he believed was a foreman. Mr. Vavrek stated that
Mr. Fowler also mentioned these problems to him before he became
the safety director, and to Ben Jordan, a laborer who was not
part of management (Tr. 33).
Mr. Vavrek identified the "problems" referred to by
Mr. Fowler as "illegal" lights on the slope which were not
enclosed in glass, the use of a gasoline chain saw and cement
cutter inside the slope, and the smoking of cigarettes by job
superintendent W.illiam Parshall. Mr. Vavrek identified "Arty"
and "Kenny 11 as Art Brienza and Ken Laida, and he stated that
these individuals came to the slope area with daily work orders
and told the workers what work was neede~ to be done on the slope
(Tr. 36). Mr. Vavrek did not know whether Mr. Parshall was also
advised of these complaints (Tr. 35).
Mr. Vavrek stated that employees would bring "safety issues 11
to him, and that Mr. Fowler also brought safety complaints to his
attention. He confirmed that he previously worked with
Mr. Fowler at the Nemacolin Mine "off and on" for 2 or 3 years,
and he considered him to be a very good worker while employed at
the mine and with the respondent. He stated that Mr. Fowler
never had a safety or mine management grievance filed against
him, and that he would rate Mr. Fowler as "extremely high" as a
foreman who paid attention to safety questions (Tr. 43).
Mr. Vavrek stated that in April and May, 1988, Mr. Fowler
complained to him about people being transported in a bucket with
oxygen and acetylene tanks which were not fastened or tied off.
Mr. Vavrek stated that he told Mr. Parshall about these complaints and informed him that if the violations persisted and
were not corrected, there was a risk that an inspector would
issue a violation if he were in the mine and observed the
conditions {Tr. 46-47).
Mr. Vavrek stated that Mr. Fowler also complained about a
contractor blasting and shooting while the blaster was 25 feet
away, the failure to tie down acetylene torches while they were
in use or stored, the lack of fire extinguishers at the places
where welding was taking place, and the hauling of unsecured
acetylene tanks in pickup trucks. Mr. Vavrek stated that these
complaints were brought to his attention, and to the attention of ·
Mr. Parshall (Tr. 47-49). He also stated that Mr. Fowler complained that he was not being permitted to make his gas checks in
accordance with the mine sealing plan (Tr. 50-Sl).
Mr. Vavrek stated that Mr. Fowler's complaint about
Mr. Parshall smoking underground was made to him and to Art
Brienza, and that his complaint about the use of gasoline tools
underground was made to him, to Mr. Brienza, and to Mr. Jordan
(Tr. 49, 51). Mr. Fowler also complained on a few occasions

470

about the handling of asbestos which was being thrown down off
the side of the building and permitted to lay on the ground, and
the lack of self- contained self- rescuers underground while work
was being performed at the slope (Tr. 51 , 54) .
Mr. Vavrek · stated that Mr. Fowler regularly brought up
safety matters, and that Mr . Parshall was more aware of the
complaints than Mr. McDowell because Mr. Parshall was at the
slope area where the work was being performed, and Mr. McDowell
remained at the office (Tr. 54).
Mr. Vavrek stated that he told Mr. Parshall about Mr. Fowler
bringing up these safety matters on "a few occasions" (Tr. 55).
Mr. Vavrek stated that in April, 1988, Federal inspectors James
Conrad, Cliff Spangler, and Robert Newhouse were in the slope
area and called the miners out after issuing an imminent danger
order. Mr. Fowler was talking to Inspector Conrad about hunting,
and Mr. McDowell told Mr . Vavrek that he did not want Mr. Fowler
talking to the inspector. Mr . Vavrek did not know why
Mr. McDowell singled out Mr . Fowler (Tr . 55-58) .
Mr. Vavrek stated that it was his impression that
Mr . Brienza and Mr. Laida were foremen, that everyone went to
them for orders "quite a bit," that Mr. Brienza and Mr. Laida
"came down and told what was to be done," and if there were any
questions "we would go to Art or Ken" (Tr. 60). If Mr . Brienza
or Mr. Laida needed direction, they would go to Mr. Parshall, and
Mr. Parshall was on the slope "sometimes" (Tr. 60).
Mr . Vavrek stated that approximately 3 days before
Mr. Fowler was terminated he (Vavrek) was with Inspector Spangler
and Mr. Fowler informed them that he had not made a gas check at
the slope work area and that "they were not following the plans."
Mr. Vavrek explained that Mr. Fowler was the only person working
for the respondent who was qualified to make the required gas
checks prior to the start of any work in the slope (Tr . 61).
Mr. Vavrek stated that after speaking with Mr . Fowler, he
(Vavrek) and Inspector Spangler spoke with Mr. John Hoelle, an
engineer who drafted the MSHA approved mine sealing plan .
Mr. Vavrek believed that the plan required a qualified person to
preshift the shaft work areas, and that the plan was not being
followed (Tr. 63). Mr. Vavrek stated that he and Inspector
Spangler then spoke with Mr. McDowell in his office, and after
reviewing the mine fire boss book, Mr . Spangler found that it was
not signed. Mr. Vavrek stated that Inspector Spangler commented
that "Terry approached us and said that the plan was not being
followed 11 (Tr. 63).
Mr. Vavrek stated that after Mr. Spangler informed
Mr. McDowell that the plan was not being followed, Mr. McDowell
11
was pretty upset. He swore a little bit, " and referre~ to

471

Mr . Fowler as a "fat roly-poly" (Tr. 64). Mr. Vavrek stated that
this encounter with Mr. McDowell occurred the day prior to
Mr. Fowler's lay-off, and that he (Vavrek) continued in the
respondent's employ for another 4 months or so until August, 1988
(Tr. 65).
Mr . Vavrek stated that the day following Mr. Fowler's
departure, the job was shutdown by a state inspector because
there was no qualified or certified person to preshift the work.
The respondent then contacted LTV Mine Superintendent Art Jones
to come and preshift the job. Mr . Vavrek stated that the state
inspector called him and asked if he were certified, and
Mr. Vavrek told him that he was not. Mr . Vavrek stated further
that Mr. Fowler was the only person on the job who was qualified
to legally preshift the work, and that a day or so later, the
respondent hired someone else who had the "papers" to do the
morning preshifting, and the work then resumed (Tr. 66).
Mr. Vavrek stated that sometime in May or June, 1988, after
Mr. Fowler's termination, Mr. Parshall told him that Mr. Fowler
"would never get a job at Meadow Run if he had anything to do
with it" (Tr. 66). He explained that Meadow Run was a new mine
which had opened up and was hiring (Tr . 66). Mr. Vavrek stated
that Mr. Fowler was "the main person" bringing safety matters to
the attention of respondent's management, and that 2 days later
the Federal inspectors carne in and shut the slope down.
Mr. Vavrek believed that Mr. Parshall or Mr. McDowell had knowledge of Mr. Fowler bringing up the safety issues 2 days before
the slope was closed because Mr. Fowler brought these matters to
Mr. Brienza, and he in turn would go to the office and report
what was going on (Tr. 68).
Mr . Vavrek also believed that Mr. Fowler was the "main man"
who brought the safety matters to the MSHA inspectors because
Mr. Fowler told him and Inspector Conrad about the slope conditions. Mr. Vavrek stated that the inspectors had received a
phone call, and he believed that Mr. Fowler had made the call.
Mr. Vavrek denied that he had made the call, and confirmed that
he was not the safety director or involved with the safety
committee prior to the time the slope was closed down (Tr. 70).
Mr. Vavrek confirmed that he did not know for a fact that
Mr. Brienza told Mr. McDowell and Mr. Parshall about Mr. Fowler's
complaints, and that he did not know whether Mr. Fowler went
directly to Mr. Parshall or Mr. McDowell with his complaints.
Mr. Vavrek stated that Mr. Fowler went through Mr. Brienza with
his complaints "because he thought, just like everyone else,
thought he was a foreman" (Tr. ?1).
Mr. Vavrek stated that in June, 1988, the respondent and
several other contractors were involved in the demolition of
surface structures which housed electrical transformers or panel

472

boxes which were labeled to indicate that the equipment contained
PCB's. An allegation was made that the respondent was dumping
these transformers down a shaft which was being sealed, and MSHA
conducted an investigation of the matter . Mr. Vavrek stated that
the day prior to Mr. Broadwater's discharge, he "heard" that the
transformers were dumped down the shaft, but that he was not on
the job when this purportedly occurred and "just heard talk about
it." He stated that he heard about it from Mr. Broadwater, Homer
Nicholson, and Bob Vance, and that Mr. Broadwater told him that
"he saw them dumping" (Tr. 77} . He explained that Mr. Broadwater
told him about the dumping while they were having lunch and that
he was upset about it . The next day, the inspectors came to the
mine (Tr. 74-78).
Mr. Vavrek stated that the inspectors spoke to a number of
people about the purported dumping, including Mr. Broadwater, but
they did not speak to him (Vavrek) about the matter. Mr. Vavrek
stated that Mr. Broadwater told him that he had called the
inspectors (Tr. 81).
on cross-examination, Mr. Vavrek confirmed that Mr. McDowell
placed him in charge of safety matters on the project because of
his safety experience, and that it was his job to remedy safety
violations. He also confirmed that MSHA inspectors receive
safety complaints in confidence and are not permitted to reveal
the names of individuals who complain. He believed that Inspector Spangler violated confidentiality by telling Mr. McDowell
that Mr . Fowler had brought the matter concerning the preshift
gas check to his attention (Tr. 85).
Mr. Vavrek identified the mine preshift examination book,
and stated that he checked the book and found that no gas checks
were recorded in the book for the 2 days l;>efore Mr. .Fowler was
terminated on May 23, 1988 (Tr. 87). He stated that he checked
the book to determined whether Mr. Fowler had made gas checks
while "burning" was going on, and he could not find any onshift
book that one would sign to verify that gas checks were made
under state law (Tr. 90-91). He explained that no entries were
made concerning the gas checks because Mr. Fowler did not examine
the area (Tr. 93). He believed that anytime Mr. Fowler makes a
preshift or onshift examination, it must be noted in the book
(Tr. 94).
Mr . Vavrek stated that Mr. Fowler told him that Mr. Parshall
would contact him when he was needed to make his examinations and
would then send him to the areas which needed to be examined. He
confirmed that the book entry reflects that Mr . Fowler examined
the number one shaft on May 17, 1988 (Tr. 96). Mr. Vavrek
further confirmed that state law required anyone in Mr. Fowler's
position to inspect a shaft before any burning is done, and he
assumed that Mr. Fowler knew the law (Tr. 97} .

473

Mr. Vavrek confirmed that he specifically told Mr. Brienza
about the -gasoline cement cutter and chain, the lights on the
slope, and smoking underground, but that .he did not speak to
Mr. McDowell or Mr. Parshall about these matters even though they
were on the job every day, and no one stopped him from speaking
with them. He explained that he spoke with Mr. Brienza because
he believed he was a foreman (Tr. 99-100).
Mr. Vavrek stated that when he received complaints from
Mr. Fowler he either told Mr. Parshall about them or corrected
the problem himself. He confirmed that when he complained to
Mr. Parshall about safety violations, Mr. Parshall would at times
have them corrected, and at times would not. Mr. Vavrek stated
that when Mr. Parshall did nothing, he (Vavrek) also did nothing.
Mr. Vavrek confirmed that he told Mr. McDowell about a few
complaints, and when he told him about the need for fire extinguishers, Mr. McDowell would take -them out and put them on the
equipment (Tr. 104).
Mr. Vavrek confirmed that when he was laid off in August,
1988, Mr. Parshall and Mr. McDowell knew that he had made safety
complaints. He confirmed that he did not file any discrimination
claim because he asked to be laid off. He explained that he
found another job and requested to be laid off and "couldn't see
someone else getting laid off" (Tr. 105). He confirmed that in
August, 1988, the respondent's job at the mine "was running down"
and people were being laid off. He confirmed that lay-offs were
taking place from March through June, 1988, but denied that the
work had slowed down (Tr. 105). He confirmed that he knew that
the respondent had subcontracted part of the shaft sealing work
to another contractor, but denied that this reduced the need for
laborers or employees (Tr. 106).
Mr. Vavrek stated that he could only recall John Bair and
Dave Knisely being laid off (Tr. 107). He theP. confirmed that
employee James Lowther was laid off, and that employee Frank
Pavlovich got another job (Tr. 108). After the layoffs, additional people were hired to do the same work, but he did not know
how many were hired (Tr. 114).
Mr. Vavrek confirmed that in a statement made to MSHA
Inspector John Savine during his investigation of the discrimination complaints he told Mr. Savine that he was not sure that
Mr. Brienza and Mr. Laida were "bosses or management men," that
he is still not sure that they were in fact foremen, and that all
he knew was that they came in with work orders (Tr. 111-112).
Mr. Vavrek confirmed that Mr. Broadwater never made any
safety complaints to him. He also confirmed that "he heard" that
MSHA found no evidence that any transformers were in fact dumped
down the shaft, and he denied any knowledge that an inventory

474

made of · the transformers revealed that only one transformer was
missing (Tr. 11~-119) .
Mr. Vavrek confirmed that Mr. Broadwater told him that he
had complained to MSHA about the transformers (Tr. 119). He also
confirmed that he did not tell Mr. McDowell or Mr. Parshall about
Mr. Broadwater's statement to him (Tr. 120). He also confirmed
that he did not tell Mr. Savine about Mr. Broadwater's statement
because he did not· know about it at the time he was interviewed
by Mr. Savine, and Mr. Broadwater told him about the transformers
after he had spoken to Mr. savine (Tr. 121).
Terry L. Fowler testified with respect to his employment at
·the Nemacolin Mine, and confirmed that he held several foreman's
positions, including underground shift foreman supervising 120
underground miners. He confirmed that he holds certifications
from the state of Pennsylvania as an underground assistant mine
foreman, and that he is certified to make methane gas tests and
air readings. He confirmed that he had a good work record at
Nemacolin and never had any disciplinary problems (Tr. 125) ~ He
identified a letter of recommendation dated June 15, 1983, from
the superintendent of the Nemacolin Mine (Tr. 126).
Mr. Fowler confirmed that he has worked for Jedco Minerals
at the Ocean Five Mine since October 31, 1988, as a section
foreman, and that he was unemployed for a few months after he was
terminated by the respondent, except for "odds and ends jobs"
doing road and contract work tearing down buildings (Tr. 127,
exhibits C-1 and C-2).
Mr. Fowler confirmed that he was laid off by Nemacolin
because the mine shutdown, and that Mr. McDowell hired him after
confirming that he had fire boss and assistant mine foreman's
papers. He confirmed that he started work on. approximately
February 17, 1988, as an underground fire boss and laborer and
was paid approximately $8 an hour (Tr. 130). He described his
fire boss duties, and confirmed that management would inform him
where the work was taking place, and that he would make his
preshift examination before work began in the shafts and slope.
He con.f irmed that there were four shafts, the slope, and surface
buildings and ponds, and a tipple. After completing his preshift
examinations, he performed his laborer's work (Tr . 131).
Mr. Parshall would inform him where the work was taking place,
and Mr. McDowell was present in the office when he went there to
receive his assignments from Mr. Parshall (Tr. 132).
Mr. Fowler stated that his work assignments conducting the
required tests took him to different shafts, two of which are six
or seven miles apart. He always entered his inspections in the
mine books after he completed them, and would then receive his
work assignments from Mr. Parshall, and on occasion from
Mr. McDowell (Tr. 134). He described the work which he did at

475

the slope and shafts, including the 11 burning" or cutting of metal
with acetylene torches (Tr. 134-136).
Mr . Fowler stated that after observing violations around the
he informed Mr. Parshall about a compressor, the use of a
gasoline powered grinder and power saw, Mr. Parshall smoking
underground, and the presence of uncertified and untrained people
underground. He explained that Mr. Brienza and Mr. Laida walked
down the shaft.slope for a few hundred feet without a flame
safety light or spotter and without permission to enter the mine .
He also expressed his concern about self-rescuers, backup horns
on vehicles, the improper hauling of oxygen and acetylene tanks,
and fire extinguishers. Mr. Fowler stated that he raised these
concerns when he was working in the slope in late March and .early
April, 1988, and before Mr. Vavrek became the safety director
(Tr . 138) . He stated that he spoke to Mr . Parshall about these
matters and "mentioned a few" to Mr. McDowell. Mr . Fowler stated
that he advised Mr. Parshall about the violations and informed
him that the inspectors would 11 write them up" and that he
(Parshall) should take care of them. He also stated that
Mr . Parshall said "I know" when he called these matters to his
attention (Tr. 138).

~. shaft,

Mr. Fowler stated that he informed Mr . Parshall and
Mr. McDowell about the slope violations 2 days before the inspectors came in and issued violations closing down the slope (Tr.
140). Most of the violations we re brought to the attention of
Mr. Parshall, and "a few" were brought to Mr . McDowell's attention, but nothing was done to correct the conditions (Tr . 141) .
Mr. Fowler confirmed that he telephoned MSHA inspector James
Conrad at his home and told him about the violations and informed
him that he was the fire boss and wanted him to do something
about it and have the violations corrected. Mr . Fowler stated
that he called Mr. Conrad the day before the inspectors came to
the mine, and he requested that his name not be divulged (Tr.
143). Mr . Fowler stated that he also complained about a nonpermissible cable running down the slope where he was working, and
uncovered light bulbs (Tr. 143).
Mr . Fowler confirmed that he did not enter the violations he
complained about in the mine books because the conditions did not
exist when he made his examinations. He asserted that the
violations occurred during the shift after the completion of his
examination. He further explained as follows at {Tr . 148-149):
You did bring it to the attention of management on
numerous occasions that there were problems even though
you didn't enter it in the book . Is that right?

Q.

A.

Yes, sir .

476

Q.
Is there any other reason you did not enter these
hazardous conditions into the book?

A.
I just didn ' t want to see the company have it
inspected by the inspectors and give them a bad name
and write violations . It's bad practice.
After you had done that numerous times, you say ,
you called the federal inspectors. Is that right?

Q ..

A.

Yes, sir .

Q. And they came out and they inspected the slope and
they shut it down.

A.

Yes, sir.

Q. Are you aware of the specific things they were
written up for right now?

A.

Yes, sir .

Q.

What is your recollection?

A.

All the violations I talked about.

Mr. Fowler believed that the slope was shutdown for 1 day ,
and that following this, Mr. Vavrek was appointed as safety
director (Tr. 150). The parties agreed that the slope was shutdown on or about March 24 or 25 , 1988, and that exhibit C- 3, are
the copies of the citations issued by the MSHA inspectors (Tr.
153). Mr. Fowler confirmed that the violations which were issued
were those that he previously discussed with Mr. Parshall and
Mr. McDowell 2 days earlier. He stated that he called Inspector
Conrad because management was not taking any action to correct
the violations, and he identified the other MSHA inspectors who
came to the mine as Cliff Spangler and Robert Newhouse (Tr . 154).
Mr . Fowler stated that following the shutdown of the slope
by the MSHA inspectors, he informed Mr. Parshall and Mr. McDowell
that the company truck he was driving was not being inspected and
that they replied "so" (Tr . 155). He also found out that "stuff"
was being dumped down the shaft, and no certified person was
examining the shaft. He asked the state and Federal inspectors
about the matter, and they confirmed that if any work is done
around the shafts they were required to be inspected by a certified person. Since he was the only certified person at the mine
site, and he did not inspect the shaft when the material was
dumped, Mr . Fowler concluded that the required shaft inspection
had not been conducted. He reported this to Mr. Vavrek in the
presence of Inspector Spangler, and Mr . Vavrek told Mr . . Fowler
that he would check on it. Mr. Fowler stated that he called

477

state mine inspector Raoul Vincinelli that same evening and
informed him that the respondent did not allow him to conduct his
shaft inspections, and that Mr. Vincinelli told him he would
speak to management (Tr . 156-160) . Mr. Fowler called Mr. Vavrek
at his home and Mr. Vavrek told him that Mr. McDowell had
referred to him (Fowler) as "a wimp or fat boy or something. 11
Mr. Fowler did not tell Mr. Parshall that work was being conducted at the shaft without anyone inspecting it, but that a
State and Federal inspector told Mr. Parshall to make sure that
he (Fowler) makes his tests (Tr. 159-160). Mr. Fowler stated
that he was terminated 1 day later after these events occurred
(Tr. 160).
Mr. Fowler stated that Mr. Parshall spoke with him at the
end of his work shift and informed him that "I'm going to have to
let you go" for "lack of work." Mr. Fowler stated that he said
nothing and left the site. He then called Mr. Vincinelli that
day or evening and informed him that management had lied to him
and had no certified people working for them. The next day,
Mr. Vincinelli went to the site and shut the job down.
Mr. Fowler stated that following this shutdown, it was his understanding that the methane checks were made by Mine Superintendent
Art Jones (Tr. 163-164).
In response to a question as to whether Mr. Parshall or
Mr. McDowell ever expressed any displeasure with his safety
activities, Mr. Fowler stated that Mr. Parshall questioned his
whereabouts when he was gone for 4-1/2 hours making methane
checks where holes were being drilled and shot. Mr. Fowler
stated that he informed Mr. Parshall that he could contact the
State or Federal inspectors to verify what he was doing, and
asked Mr. Parshall not to interfere with his methane testing (Tr.
167).
Mr. Fowler stated that Mr. McDowell questioned him about
some comments he purportedly made to the mine owner, and indicated that he (Fowler) had made the owner mad (Tr. 167). The
next day, Mr. Parshall and Mr. McDowell argued with him about his
reporting late for work, and when Mr. Fowler asked them whether
there was "a problem" and did not want to be harassed,
Mr. McDowell stated "well, I've been getting too many 800 phone
calls" (Tr. 168). Mr. Fowler took this to mean that someone had
called an inspector, and that Mr. McDowell believed he had called
the inspectors (Tr. 169).
Mr. Fowler stated that he did not know the mine owner, but
offered to speak with him. However, Mr. McDowell stated "that is
not a good idea" and that "the owner could get real tough."
Mr. McDowell stated that he did not like to be threatened, and
Mr. Fowler stated "I don't either, Jay" (Tr. 169). Mr. Fowler
stated he wanted to speak with the owner because he had never
spoken to him and wanted to find out why he was mad (Tr. 170).

478

Mr. Fowler stated that on one occasion when a safety meeting
was supposed to be held, Mr. McDowell commented that "he was not
going to be a safety nut on no job" (Tr. 171). Mr. Fowler stated
that management never criticized his job performance. He stated
that he called the Federal inspectors because management was not
doing anything about the violations, and since he had to sign the
fire boss books, he was concerned that management would blame
him, and that Mr. Parshall and Mr. McDowell "did not know the
laws" (Tr. 172).
Mr. Fowler stated that Mr. Brienza and Mr. Laida rode to
work with Mr. Parshall and they talked on the job about someone
calling the MSHA inspectors. Mr. Fowler stated that they stated
that Mr. Parshall and Mr. McDowell were mad because someone was
calling the MSHA inspectors and they wanted to know who it was.
Mr. Fowler stated that he wanted everyone to know about the
conditions that he complained about, and he believed that
Mr. Brienza and Mr. Laida "would run to management and tell them
everything" (Tr. 173).
Mr. Fowler stated that he did not resent Mr. Brienza and
Mr. Laida giving him work assignments and had "no ax to grind
with them." He stated that Mr. Brienza and Mr. Laida "both told
me they was company." He also stated that he received his daily
work assignments from Mr. Brienza, Mr. Laida, and Mr. Parshall,
and that he would find out about his daily work assignments when
he went to work (Tr. 176).
On cross-examination, Mr. Fowler stated that approximately
3 days after he was hired by the respondent he began making
complaints about safety violations, and that he made them intermittently from F~bruary 20 to May 22, 1988. He confirmed that he
knew that Mr. Parshall was the superintendent and that
Mr. McDowell was the project manager, and that they would be the
logical people to complain to (Tr. 178-181).
Mr. Fowler reviewed a copy of his 12-page statement given to
MSHA Inspector John Savine in connection with his complaint, and
stated that although "he may have left something out, ... his statements were true (Tr. 183). Mr. Fowler stated that he told
Mr. Parshall and Mr. McDowell about all of the complaints which
are referred to in his statement to Mr. Savine (Tr. 189). He
conceded that he did not tell Mr. Savine that he had spoken to
Mr. McDowell and Mr. Parshall about these complaints, and stated
that he told Mr. Savine that "I went to management . Management
is Jay and Bill" (Tr. 188). In response to a comment by respondent's counsel that his statement made to Mr. Savine does not
include any assertion that he specifically told Mr. Parshall or
Mr. McDowell about his complaints, Mr. Fowler responded "I told
you I left things out" (Tr. 189) .

479

Mr. Fowler confirmed that he was a member of the United
Steelworkers Local 3403, and that the local represented the
respondent's employees on the job· at the mine. He confirmed that
the President of the local, Tom Simon, filed a grievance on his
behalf regarding his termination. Mr. Fowler confirmed that he
told Mr. Simon that "I got laid off or discharged or fired,
whatever you want to call it, and they hired a guy in my place"
(Tr. 190-195). Mr. Fowler confirmed that his grievance was not
pursued because it was not timely filed (Tr. 211).
Mr. Fowler identified the mine examiner's book, and he
confirmed that in his capacity as the examiner he was supposed to
make entries concerning mine conditions, gas tests, and any
safety violations. In response to questions concerning certain
entries he made in this book, Mr. Fowler conceded that without
exception, each of the shafts and slope which he examined on the
days shown in the book were all noted by·him to be safe (Tr.
195-198, exhibit R-1). Mr. Fowler explained that these areas
"were safe at the time" he inspected them and that the violations
that he complained about took place during the shifts and that
the areas noted in the book 11 vlas safe every day except the few
days I told management about." He further conceded that there
are no entries in the book that do not say "safe" in his own
handwriting for every examination noted in the book (Tr. 199).
Mr. Fowler confirmed that no one ever told him not to write up
any violations in the book (Tr. 201).
In response to further questions, Mr. Fowler stated that he
believed that Mr. Brienza and Mr. Laida were foremen because they
told him they were "company" and not "union" (Tr. 208). He
stated that neither Mr. Brienza, Mr. Laida, Mr. Parshall, or
Mr. McDowell were authorized to go underground unescorted because
they were not certified under Pennsylvania State law and had no
underground training (Tr. 208-210).
Mr. Fowler stated that Mr. Brienza and Mr. Laida made comments that "the inspectors are here. Fowler must have called the
inspectors," and that they made the statements "quite a few
times." He also stated that he personally observed Mr. Brienza
and Mr. Laida riding in a vehicle with Mr. Parshall (Tr.
213-214).
Mr. Fowler stated that one may assume that any violations
which may have occurred during a work shift were corrected in
1 day if he found the area safe during his next daily preshift
inspection (Tr. 218). He stated that "most of the time" his
safety complaints were ignored and that is why he called the
Federal inspectors. In response to certain bench questions with
respect to whether he ever went to Mr. McDowell or Mr. Parshall
with his complaints of violations, Mr. Fowler stated as follows
(Tr. 218-220):

480

Q. The point I'm making is were these complaints that
were just altogether ignored or were they taken care
of?
A. Most of the time they were ignored.
called.

That is why I

Q.

Most of the time they were ignored.

A.

That is why I called the Federal inspector.

Q.

How were they ignored?

A.

They weren't taken care of.

Q. Did you ever go to Mr. McDowell or Mr. Parshall,
who were the powers to be at the mine?
A.

I told Bill and I told Jay about a few.

Q.

Which ones?

A.

Which ones?

Q.

Do you remember which ones you told them about?

A. I can't remember. They didn't want to correspond
or help out, so I said I would have to go to an inspector to get something done.

Q.

You told them that.

A.

Yes.

Q. On how many occasions did you tell them that you
had to go to the inspector?
A.
I told Jay -- excuse me. I told Bill if he interfered with my tests, with my examinations, that I would
go to the Federal and State inspectors. I told Bill
this.
Q.
I'm taking about the conditions that you say they
didn't take care of. Did you tell them about conditions that

A. I told them about -- we had conditions. And they
did nothing. They gave me dirty looks and started
treating me -Q.

Do you know whether they took care of them?

.481

A• . Some they did and some they didn't .
Mr. Fowler denied that he ever heard Mr. Brienza state that
he was "union," denied that he ever cursed Mr. Brienza or had a
fight with him, or that he ever told Mr. Laida that he wanted to
be laid off because he had another job (Tr. 221-224).
John R. Bair testified that he was formerly employed by the
respondent as a laborer for approximately 6 weeks beginning on
March 3, 1988. He stated that some oil spilled out of a transformer one day and he requested Mr. Vavrek to have him tested for
possible PCB exposure. Mr. Vavrek told him that he would ask
management about it, and Mr.. McDowell came to him later and
cursed him and told him that if he had any problems he should
come to management. Mr. · Bair stated that he also asked
Mr. McDowell for the identity of his union president so that he
could file a request to be tested for PCB exposure, and that
Mr. McDowell cursed him. Mr. Bair stated that Mr. McDowell never
responded to his testing request or for the identity of his union
president. Mr. Bair claimed that he never received a union card,
that no one knew what union they belonged to, and that he could
not find the information (Tr. 227-231).
Mr. Bair stated that after his encounter with Mr. McDowell,
Mr. Parshall told him that he would assign him to "burn cable" on
the hoist house tower, but then left him standing in the rain for
3 hours without a further work assignment after he told
Mr. Parshall that he would not climb the tower because it was too
high and he feared for his life (Tr. 234). The next day,
Mr. Parshall told him he was laying him off because there was a
shortage of work. Mr. Bair stated he was actually laid off the
following day and was not called back to the job (Tr. 235). He
confirmed that Mr. McDowell had initially hired him for the job
(Tr. 238). Mr. Bair denied that he was still mad at
Mr. McDowell, but was mad at the company because of the treatment
he received (Tr. 247).
Roger Broadwater testified that he worked for the respondent
from approximately the middle of March, 1988 until June 1, 1988,
and that .he was hired by Mr. McDowell to work as a bulldozer
operator. He stated that he has never been fired from a job for
poor work and has never been the subject of any disciplinary
actions (Tr. 250-252).
Mr. Broadwater described his work duties, including
laborer's work, and cutting metal with a torch. He stated that
his work assignments were primarily made by Mr. Parshall, and
that Mr. Brienza and Mr. Laida would also inform him where he was
needed to work on any given day (Tr. 252-255).
Mr. Broadwater stated that he was concerned about unsafe
work practices such as the lack of fire extinguishers, unsecured

482

oxygen and acetylene bottles, the use of a Cherry picker with a
broken front stabilizer, and a man cage being hauled around
without a safety rig (Tr. 255). He stated that he mentioned
these conditions to Mr. Parshall, and he believed that he spoke
to Mr. McDowell about the oxygen and acetylene bottles when he
first started work (Tr. 256).
Mr. Broadwater stated that he observed two transformers
being pushed down a skip shaft by a highlift operated by
Mr. Laida, and that Mr. Parshall and others were present when
this occurred. Mr. Broadwater stated that he did not know
whether the transformers contained any PCB's, but that he was
upset because contaminants, oils, and flammable, combustible, and
corrosive materials were not allowed to be put down the shafts
(Tr. 258-261). After arriving home that same day he called
Mr. Fowler and told him about the transformers being pushed down
the shaft and Mr . Fowler had a friend of his, John Cox, call him.
back. Mr. Broadwater told Mr. Cox what he observed, and
Mr . Fowler called the MSHA inspectors, and they came to the mine
the next day (Tr. 264).
Mr. Broadwater stated that when he returned to work the day
_after speaking with Mr. Fowler, the inspectors were at the mine
and wanted to know if anyone knew anything about the transformers
being dumped down the shaft. Mr. Broadwater stated that he
feared for his job and said nothing directly to the inspectors,
but he did take Inspector Newhouse's phone number and told him
that he would call him that evening (Tr. 266) . At the end of the
shift Mr. Parshall told him that four laborers were no longer
needed and that he was one of them. Mr. Broadwater stated that
he was laid off at the end of the day and that Mr. Parshall told
him to find another job (Tr. 267). Mr. Broadwater stated that he
had no opportunity to call or speak with Mr. Newhouse, but that
he subsequently went to see him and filed-his discrimination
complaint with him (Tr. 268).
Mr. Broadwater believed that there was still "plenty of
work" to be done when he was laid off, and that he was the only
one laid off that day. He did not know whether the other three
laborers mentioned by Mr. Parshall were subsequently laid off
(Tr . 270).
Mr. Broadwater stated that when the inspectors were at the
mine speaking with people about the transformers being pushed
down the shaft he told four individuals what he had observed and
that he was going to be telling the inspectors about i t (Tr.
273). He believed he was laid off because he called the inspectors to look into the matter (Tr. 273).
On cross-examination, Mr. Broadwater stated that he believed
that management knew that he had complained about the transformers being pushed down the shaft because they "probably must

483

have had a snitch." He could not identify the "snitch" because
"I don't have a crystal ball." Mr. Broadwater confirmed that he
did not say anything to management about the transformers {Tr.
275).

With regard to his complaint -about the Cherry picker with a
broken stabilizer being used to hoist men in a man cage,
Mr. Broadwater confirmed that in a prior statement given to MSHA
Special Investigator John savine, he stated that "This cage was
not used to hoist men, to the best of my knowledge. " When asked
to explain· this contradiction, Mr. Broadwater stated that "I must
have remembered something else," "I don't know if its a matter of
time lapse," and "maybe I don't know" (Tr. 277-278).
Mr. Broadwater confirmed that in his prior statement to
Mr. Savine he stated that he asked Mr. Parshall that "it looked
like the job was slowing down and if there were going to be any
layoffs" and that Mr. Parshall assured him that employees would
not be laid off because there was a lot of work to do in the
preparation plant (Tr. 282).
Mr. Broadwater acknowledged that he had several different
jobs with the respondent but denied that he was ever taken off a
job because he could not perform sat~sfactorily. He also
acknowledged that Mr. Parshall gave him "an ear! beating" when he
backed up a backhoe and it caught some powerlines and broke down
an old rotted telephone pole (Tr. 285).
Mr. Broadwater stated that he and the other miners -who were
interviewed by the MSHA inspectors concerning the transformers
were all interviewed in private, and that there were no witnesses
present during the interviews (Tr. 287). He confirmed that
Mr. Fowler advised him of his right to file his discrimination
complaint, but that he did not file a grievance over his layoff.
When asked why he had not filed a grievance, he stated "I don't
know why I didn't. Because there is .no union representative on
the job" (Tr. 291). He confirmed that his union dues were
"checked off" and sent to the Steelworkers union but that he had
no union card, and only received one after he was laid off (Tr .
292).
He confirmed that other people were hired after Mr. Bair
and Mr. Knisely were laid off to do the same work, and it was his
impression that they were not laid off because of a lack of work
(Tr. 295) .
Homer W. Nicholson testified that he was hired by
Mr. McDowell as a laborer on March 1, 1988, and worked at the
project in question for 3-1/2 months. He testified with respect
to his knowledge concerning the transformers which were allegedly
dumped down the mine shaft and explained what had occurred (Tr .
296-305). With regard to this incident, Mr. Nicholson stated
that during the dinner hour one evening Mr. Broadwater stated
that he was going to call the federal or state people about the

484

transformers, and he could only recall one other individual who
was present at this time, and he identified him as Roger "Hobby"
Vance. The following day, the Federal inspectors showed up at
the site, and prior to their arrival, Mr. Brienza and Mr. Laida
asked him not to say anything about the transformers. He stated
that "he thought" that Mr. Laida and Mr. Brienza were foreman but
that he did not know (Tr. 306). He confirmed that when he was
interviewed by the inspectors about the transformers he told them
that he did not see any transformers go down the shaft and that
"once I load them, they're not my problem no more" (Tr. 306).
Mr. Nicholson confirmed that after the transformer incident,
which he believed occurred on May 31, 1988, he continued to work
for the respondent at the mine until approximately June 15, 1988,
and then obtained a job at another mine with another "branch" of
the respondent (Tr. 308) . He confirmed that he heard the argument between Mr. Bair and Mr. McDowell, but could not hear any of
the details because he was "downstairs." Although he had no
personal knowledge of any safety problems at the site, he "heard"
from others that burning was being done without the use of any
fans, but that Mr. McDowell had him "fix up a fan for them" (Tr.
309) .
On cross-examination, Mr. Nicholson testified further about
his involvement with the transformers in question, and he confirmed that he visited Mr. McDowell's office many times (Tr .
309-313) . He confirmed that there was a bulletin board in the
office and that he has seen some "papers" posted on the wall
concerning the union. Although Mr. Nicholson could not read in
any detail a copy of a union agreement produced by the respondent's counsel because he did not have his glasses, he identified
the name of the Local Union 1474 of the United States Steelworkers of America printed on the docum~nt, and stated that it
could have been the document posted on the wall (Tr. 316-318).
In response to a question as to whether he ever told anyone
in "management" that Mr. Broadwater complained about the transformers, Mr. Nicholson responded "Not in management, not unless
it was Arty and Kenny, and they say they wasn't in management
now" (Tr. 318). Mr. Nicholson stated further that when he began
work for the respondent he thought that Mr. Brienza and Mr. Laida
were foremen, but that they informed him that they were not (Tr.
319). Mr. Nicholson confirmed that Mr. Broadwater told him that
he was going to make a complaint, and that he had heard that ·
Mr. Robert Vance told Mr. Brienza that Mr. Broadwater "was going
to tell on them" (Tr. 320).
David D. Knisely, testified that he was hired by
Mr. McDowell as a skilled laborer and worked for the respondent
for 10 days during the middle of April, 1988. He worked at
"burning metal and stuff, steel, then stacking it on the truck or
whatever, just labor work." He stated that on one occasion when

485

he was working with Mr. Broadwater and Mr. Bair, he asked
Mr. Vavrek to find out if there was a union representative or
steward on the job, and Mr. Broadwater inquired about the presence of any PCB's in the transformer banks in the building where
they were working at. Shortly thereafter Mr. McDowell and
Mr. Parshall carne to the building while they were tearing it down
and wanted to know whether there was a problem, and they used a
few curse words. They also stated that they were to come to them
if they had any questions, and Mr. Bair did most of the talking.
Words were exchanged, and after Mr. ·Bair asked Mr. McDowell about
the union steward and the PCB's, Mr. McDowell stated that he
would find out about it. The next day, he and Mr. Bair went to
-the office to find out if Mr. McDowell had any answers to their
questions, and Mr. McDowell informed them not to worry about the
union because it would take 60 days for them to be in. When
Mr. Bair asked to be tested for PCB's, Mr. Knisely stated that "I
forgot what happened after that. It's been awhile" {Tr. 326}.
Mr. Knisely stated that on the day that he and Mr. Bair went
to see Mr. McDowell in his office, Mr. Parshall spoke with him
later in the afternoon and informed him that he was laid off
because of a lack of work, and that was his last day on the job.
Although he had no personal knowledge whether there were any new
hires after 'his layoff, Mr. Knisely stated that it was his understanding that there were (Tr. 326). Mr. Knisely stated that
Mr. Broadwater and Mr. Fowler then advised him that he had "a
good case if I filed 105(c)." He confirmed that he filed a
complaint but was informed by MSHA by letter that his case had
been "dropped" and he elected not to pursue it further and found
other work in July (Tr. 327).
On cross-examination, Mr. Knisely stated that he and
Mr. Bair asked Mr. McDowell about the union, and that
Mr. McDowell was upset because they spoke to Mr. Vavrek first and
did not come to him with their questions about the union. He
confirmed that Mr. McDowell eventually "got to finding out about
the union" but "ranted and raved about not corning to him first"
(Tr. 330). Mr. Knisely confirmed that he had visited
Mr. McDowell's office and recalled seeing "something about the
retirement and health care" posted on the bulletin board, and
that something about the union was also possibly posted, but he
did not recall. Mr. Knisely stated further that Mr. McDowell was
upset "mostly" with Mr. Bair, but was not pleased with him either
because 11 I guess he didn't want nobody talking about the union"
(Tr. 334). He confirmed that he had no first hand knowledge
about the transformer question (Tr. 337).
Edward K. Locy, stated that he worked for the respondent as
a heavy equipment operator from March 14 to approximately
August 10, 1988, and later became an acting foreman. He stated
that sometime in June or July, 1988, Mr. Parshall told him to
start work early before the usual starting time of 7:00a.m., and

486

that following Mr. Parshall's instructions, he dumped five or six
plastic barrels of acid down a shaft after breaking them up with
a dozer so they would not float. He stated that Mr. Parshall
told him that Mr. Phil Stout, the respondent's owner, happened to
see Mr. Fowier "doing something one day" and commented that "he
didn't like the M-F'ers look, get rid of him," and that this
occurred the day before Mr. Fowler left the job (Tr. 342).
In response to a question concerning his opinion of
Mr. Fowler as a worker and safety conscious person, Mr. Locy
responded "I can't really say that ·much about him . . • • I
actually don't know the man. But he was always doing the job
when I was around him" (Tr. 343). With regard to his opinion of
Mr. Broadwater, Mr. Locy stated "Well, I know him. But personally associating with him, going to his house or something like
that, no, I've never been there" {Tr. 343).
Respondent's Testimony and Evidence
Armand "Arty" Brienza testified that he was employed by the
respondent during April through June, 1988, at the mine site in
question as a carpenter and that Mr. Fowler and Mr. Broadwater
were his co-workers. He confirmed that the work being performed
by the respondent was a "union job," and that he and the other
employees belonged to the United Steelworkers union at that time.
He also confirmed that Mr. Kenny Laida worked for the respondent
as a cement finisher and also belonged to the union, and that he
and Mr. Laida were not foremen or bosses and were not part of
management.
Mr. Brienza denied that he and Mr. Laida ever went into any
of the work areas at the site with "work orders of the day" for
any individual or group of employees to follow. Mr. Brienza
explained that part of his work was to seal bore holes which were
located within a 10-mile radius of the mine, and that he would
generally have laborers helping him. The men were assigned to
him by Mr. · Parshall and he (Brienza) had nothing to do with
selecting them. In view of the .f act that he was a carpenter and
needed to have materials available to him, he would instruct the
laborers assigned to him to bring the materials to the work
locations and that this was a normal practice "in the trade." He
believed that this probably explains why others may have believed
that he and Mr. Laida were foremen or a part of management. He
further stated that he and his crew of two laborers would travel
around in a dump truck used to haul the materials for sealing the
bore holes, and that he would instruct the laborers as to where
to take or place the materials needed for the job. He confirmed
that once the laborers were assigned to him by Mr. Parshall, they
were under his (Brienza's) control while they were in the field
working with him, and that Mr. Fowler and Mr. Broadwater were
never assigned to him to do any of the bore hole work (Tr.
354-360).

487

Mr. Brienza confirmed that the only time he gave any work
orders to Mr. Fowler and Mr. Broadwater was during the work to
seal off the slope, and on these occasions he would instruct them
to bring _in materials, do the "chipping out," carry blocks, or do
anything else that was necessary, and that these orders were no
different than was customary "in the trade." He believed that
Mr. Fowler and Mr. Broadwater should have realized that craftsmen
such as a carpenter or cement finisher could tell a laborer to
"bring me this or that," and that although · an experienced miner
or construction person might believe that a carpenter was management or a boss or foreman "he ought to know" {Tr. 361).
Mr. Brienza stated that Mr. Fowler never treated him as a
boss or foreman or part of management, that he used foul language
while they talked and worked together while "kidding around," and
that on one occasion they engaged in an altercation, but then
shook hands. He further stated that he and Mr. Fmvler worked "as
a crew" together doing slope work for 6 to 8 weeks {Tr. 363).
Mr. Brienza stated that Mr. Parshall and Mr. McDowell never
worked "in the hole" with the men, and that the men did not talk
to them like they did with him and treated them differently.
There was no question that the men knew that Mr. Parshall was the
superintendent and that Mr. McDowell was the project manager (Tr.
364) •
Mr. Brienza stated that Mr. Fowler and Mr. Broadwater never
made any safety complaints to him, but that he did hear
Mr. Fowler mention or complain about the lights and use of a
generator in the shaft, and fire extinguishers. These comments
were made in "general conversation," and Mr. Brienza denied that
he ever reported them to Mr. Parshall or Mr. McDowell.
Mr. Brienza explained that he did not believe it was his responsibility to inform management about these matters, and since
Mr. Fowler had more mine experience and knew the safety regulations, "he should have went and done more complaining to somebody
else beside me" (Tr. 366).
On cross-examination, Mr. Brienza confirmed that he "heard
talk" about transformers being dumped down a shaft, but that he
had left the site four times on the day in question and had no
personal knowledge about this purported incident (Tr. 368).
Although he initially stated that he was "fire-bossing," and had
"a card" allowing him to make methane checks, he later clarified
his testimony and stated that he was not a fire boss, and was
only certified to make methane tests on the surface (Tr. 371).
Mr. Brienza confirmed that he rode to work with Mr. Parshall
in his vehicle because it was a trip of 37 miles one way and he
had the opportunity to get a ride to work every day (Tr. 379).
He confirmed that he still works for the respondent as a carpenter, does not act as a foreman, and is not presently a member

488

of the union (Tr. 380). He did not believe that it was reasonable for anyone to believe that he was the .conduit between
Mr. Parshall and the work force "because Mr. Parshall came down
every morning and he gave the orders to everybody, what they had
to do down there" (Tr. 381). He denied that he ever acted as a
foreman, and stated that he was a carpenter who worked part of
the time doing slope and bore hole work, and that there were days
when he worked and labored with the men on different jobs (Tr.
382).
Mr. Brienza confirmed that he had no training "in the m1.n1.ng
area," and that he and Mr. Laida took it upon themselves to go to
the slope bottom to retrieve some copper material and that he
knew this was illegal or improper and that Mr. Fowler told him so
(Tr. 384). Mr. Brienza stated that he never received a union
card, and that Mr. McDowell told him that Mr. Laida was the shop
steward (Tr. 384). He also stated that the work which he performed around the bore holes took place after Mr. Fowler was
terminated, and he conceded that this work would not be relevant
to Mr. Fowler's perception that he was a foreman (Tr. 390).
Mr . Brienza confirmed that Mr. Fowler pointed out problems
in the workplace on more than one occasion in his presence, and
that he did . so "as a group . In the hole talking, yes, he mentioned different things" (Tr. 391). Mr. Brienza denied that
Mr. McDowell or Mr. Parshall were present during these discussions, and he had no knowledge that Mr. Fowler or
Mr. Broadwater ever went directly to Mr. McDowell or Mr. Parshall
with any safety complaints (Tr. 392). He believed that
Mr. ~arshall was concerned about the safety of the employees (Tr .
393) • . When asked why he did not communicate Mr. Fowler's safety
concerns to Mr. Parshall, Mr. Brienza replied "Because I figured
Mr. Fowler, he has a complaint, let him g~. He complained down
in the hole to all of us" (Tr. 395). Mr. Brienza confirmed that
Mr. Fowler complained about fire extinguishers, lights, and
self-rescuers, and that one of the reasons he was hired was
because he was experienced in these matters. Mr. Brienza stated
that all of these items in the slope was "new to me," and that as
a carpenter he usually worked on the surface (Tr. 397).
Mr. Brienza denied any knowledge of Mr. Fowler's calling any
federal inspectors. He confirmed that he was aware that the
inspectors came to the site on March 24, 1988, and "writing up a
bunch of stuff," and that he had no reason to dispute
Mr. Fowler's claim that he called in the inspectors (Tr. 399).
He confirmed that Mr. Fowler had worked in the mine, and that he
was the only person who had knowledge about the mining laws and
regulations (Tr. 405).
Mr. Brienza confirmed that he was at the mine when the slope
was shutdown by the inspectors, but he was not interviewed and
did not believe that he spoke with Inspectors Newhouse or

489

Spangler. ·He did not know who the inspectors spoke with, and
never heard Mr. McDowell or Mr. Parshall say anything to
Mr . Fowler suggesting that he should not speak to any federal
inspectors (Tr. 407).
William Parshall testified that he was formerly employed in
1988 by the respondent as the job superintendent at the Nemacolin
Mine, and that he and Mr. McDowell managed the project. He
stated that Mr. Laida and Mr. Brienza were in no way part of
management and that he never authorized them "to carry orders of
the day to the men on the site." He confirmed that 14 to 16 men
worked at the site, and that he would make the work assignments
on a daily basis and directed all of the work orders (Tr. 410) .
He confirmed that Mr . Fowler and Mr. Broadwater worked for him
(Tr. 411) •
Mr. Parshall denied that Mr. Fowler or Mr. Broadwater ever
made any safety complaints to him, and stated that the only time
he found out that any complaints had been made was when the MSHA
inspectors came to the site and shut the job down. He stated
that "they shut the job down until I .cleaned everything up that
they wrote up, that I had that was improper" (Tr. 412). He
confirmed that he never found out who may have complained, but
that he was curious and asked Inspector Newhouse about it.
Mr. Newhouse informed him that a complaint may be filed by using
a toll free number to call MSHA in Washington, and that the
source of any complaint is confidential and could not be
revealed. Mr. Parshall stated that he had no knowledge that
Mr. Fowler or Mr. Broadwater made any safety complaints about the
area which was shutdown (Tr. 412).
Mr. Parshall denied that Mr. Fowler or Mr. Broadwater were
fired because they made safety complaints. He stated that they
were laid off. The decision to lay off Mr. Fowler was a joint
decision made with Mr. McDowell. Mr. Fowler was laid off because
the company was catching up with the work, had subcontracted work
to another contractor, and he knew that he was going to reduce
his work force. He laid Mr. Fowler off because he was the least
qualified to do the work and he did not consider him to be a
satisfactory employee. He stated that Mr. Fowler "walked around
and talked to people instead of doing his work," was not a "production worker," was not an "energetic worker," and did not give
him "eight hours work for eight hours pay" (Tr. 415). Although
Mr. Fowler did what he was told, "it wasn't no expediency" and
"it was just moping around and stop and talk to people. Things
like that" (Tr. 415). Four or five other employees were laid off
2 or 3 weeks before Mr. Fowler, and others were laid off after
Mr. Fowler (Tr . 416-417).
Mr. Parshall confirmed that at the time the MSHA inspectors
came to the job site and shut the slope down and issued violations, he was aware that they spoke with Mr. Fowler. He stated

490

that he observed Mr. Fowler speaking with the inspectors, and he
recalled that Mr. Ben Jordan and Mr. Brienza were also present at
the slope with Mr. Fowler and the inspectors when it was shutdown, but he had no idea what the conversations were about (Tr.
419). He denied making any statement that Mr. Fowler would never
get to work at the Meadow Run Mine, and confirmed that he never
heard of that mine (Tr. 421).
Mr. Parshall confirmed that he laid off Mr. Broadwater. He
explained that Mr. Broadwater was hired as a high lift operator,
but that he did not consider him to be satisfactory at that job.
He assigned Mr. Broadwater to other equipment at another shaft
because the superintendent at that site needed an operator, but
he -v;as sent back within 2 days because the superintendent did not
want him "because he wasn't very goo<;i" ( Tr. 4 2 0) . He then
assigned Mr. Broadwater to "burning work," but found that he had
difficulty doing that job. He then assigned him to "laboring
here and there until I had to make a cutback . . . . I was going
to lay laborers off, so I just let him go because he wasn't
qualified to do any of the work, really" (Tr. 421).
Mr. Parshall denied that he ever told Mr. Broadwater that
there was plenty of work, and he considered such statements to be
a bad business practice. He denied that he laid off
Mr. Broadwater because of any complaints concerning safety violations or transformers, and stated that he had no knowledge that
Hr. Broadwater had made any complaints prior to the time he laid
him off. He also denied that Mr. Vavrek ever infonr.ed him that
Hr. Fowler and Mr. Broadwater had made safety complaints (Tr.
422) •

Mr. Parshall confirmed that he knew about the EPA's interest
in the complaint concerning PCB's and equipment being pushed down
the shafts and that he "heard talk about it." He confirmed that
MSHA came to the site to look into the matter and 11 found
nothing." He stated that he had no idea that MSHA had anything
to do with the mine prior to March 24, 1988, when the inspectors
came and shut the job down, and that MSHA had never visited the
site prior to that time while he was the superintendent. He had
no idea who called MSHA, but assumed that someone called or made
a complaint, "but I have no idea who" (Tr. 428). Mr. Parshall
stated that he has been "in this business 39 years" and considers
himself to be a safety conscious person and that he tries to work
as safe as he can (Tr. 434).
Mr. Parshall confirmed that he was not familiar with the
safety rules for underground mines when the job was started at
the mine, and that Mr. Vavrek was appointed as the "safety man"
because he had worked at the mine and was familiar with the
safety rules. Mr. Fowler was appointed as a "fire boss for
checking for methane gas" (Tr. 435). Mr. Parshall denied that he
ever permitted any safety violations, and he denied that he ever

491

knowingly and deliberately committed any safety violations (Tr.
436). .
on cross-examination, Mr. Parshall stated that he "vaguely"
recalled the day that Mr. Fowler was laid off, and he denied any
knowledge that Mr. Vavrek and MSHA Inspector Spangler spoke to
Mr. McDowell about Mr. Fowler's concerns that gas checks were not
being properly made (Tr. 450). Mr. Parshall believed that the
joint decision to lay off Mr. Fowler was discussed and made
approximately 10-days prior to the lay off, but that he was not
sure. It was his understanding that Mr. Fowler was hired because
he had fire boss papers, and that he and Mr. McDowell discussed
the significance of laying off Mr. Fowler, and any particular
problems which may have resulted by the lay off. He confirmed
that when state mine inspector Raoul Vincinelli came to the site
the day after Mr. Fowler was laid off and informed him that he
would not allow work to continue until he brought in Mr. Art
Jones or someone else to fire boss the job, he was surprised (Tr.
451).

Mr. Parshall stated that prior to Mr. Fowler's lay off,
there were nine individuals qualified to make methane checks, but
that none of them had fire boss or mine superintendent papers.
He confirmed that Mr . Vincinelli informed him that the mine had
to be firebossed, and stated as follows at (Tr. 453):
THE WITNESS: I had no knowledge of it, but a fire boss
we don't need a fire boss outside. We need a man -he was a fire boss bec.a use he can take methane checks.
We all, later, got cards to check methane. That way I
didn't need Terry Fowler, because I had nine men go to
school for methane checks. And that is all we had him
do.
BY MR. RODD:
Who did you have come in to ·fire boss the job
before Mr. Vincinelli would let you get to work the day
after Terry Fowler -- who did you have come in?
Q.

A. Mr. Jones took the methane check because we did not
have our authorization cards yet.
Mr . Parshall stated that Mr. Vincinelli instructed him not
to do any further work until he had a qualified person to conduct
the methane checks (Tr. 459). Since Mr. Jones was available at
the nearby LTV mine and was still the superintendent and wellqualified to make the methane checks, he made the checks, and
Mr. Vincinelli then permitted the work to continue (Tr. 460).
Mr. Parshall confirmed that Mr. Barry Cox was then hired on a
part-time basis to make the methane checks (Tr. 460).

492

Mr . Parshail stated that at the time Mr. Vincinelli came to
the site, seven or nine of the respondent's employees had
received training for taking methane checks, but had not as yet
received their cards to show Mr. Vincinelli. They did have a
"signed paper" from the methane instructor but the cards had not
as yet arrived from Denver. Mr. Vincinelli later accepted the
papers after Mr·. Jones conducted the methane checks (Tr. 463).
Hr. Cox had "mine papers," and although Mr. Parshall never saw
any certifications, it was his understanding that Mr. Cox was
certified to make certain inspections, and that after Mr. Fowler
left, "we had certified or qualified methane check . cards" (Tr.
465) .
.
Mr. Parshall confirmed that Mr. Brienza and Mr. Laida rode
to work with him in a company furnished pickup trucks, and that
he picked them up on the highway on the way to work (Tr. 466).
He denied that he ever ate lunch with Mr. Brienza and Mr. Laida,
and stated that he lunched with Mr. McDowell (Tr. 467).
Mr. Parshall confirmed that he was curious about who may
have complained to the MSHA mine inspectors, and that he discussed it with Mr. McDowell, but was not sure whether he discussed it on more than one occasion (Tr. 468). He also confirmed
that "it was kind of shocking" to find out that he could not
continue working until the violations were corrected. Since the
mine was being closed, he was unaware of MSHA's involvement in
surface mining, and he was not sure if Mr. McDowell was aware of
it (Tr. 470). Mr. Parshall identified a copy of a mine sealing
plan prepared for the respondent and submitted to MSHA, and
stated that he had never seen it prior to the hearing in these
proceedings (Tr. 474).
Mr. Parshall confirmed that he selected Mr. Vavrek as the
responsible person for dealing with safety complaints because he
believed he was a reliable and responsible person for dealing
with such matters. He stated that he knew that Mr. Vavrek
carried out his duties in a responsible and proper fashion
"because I directed him to" (Tr. 481). He stated that Mr. Vavrek
made his inspections prior to starting time, signed the papers
attesting that "the job was safe," and that he always instructed
Mr. Vavrek to correct any unsafe conditions. He had no reason to
believe that Mr. Vavrek was not fulfilling his safety responsibilities, and he would verify Mr. Vavrek's safety assessments as
he moved around the job project (Tr. 482). Mr. Parshall confirmed that Mr. Fowler had to travel 4 miles to perform some of
his gas checks at the shafts, and used his own vehicle to do this
on his way to work. He was then assigned a company truck to make
these checks, and spent more time than he should have, and
Mr. Parshall stated that he complained about it to Mr. Fowler,
and that after this "he did a little better" (Tr. 483).

Mr. Parshall confirmed that after Mr. Bair and Mr. Knisely
were laid off, other people were hired and were assigned the same
jobs that they had performed. He denied that he told
Mr. Broadwater that four others would be laid off at the same
time that he was laid off. He confirmed that Mr. Broadwater was
laid off alone, but that he laid off others at a later time "as I
needed to." He also confirmed that he laid off people prior to
Mr. Broadwater's lay off, and he identified them as Mr. Bair,
Mr. Knisely, and Mr. Ben Jordan (Tr. 488). Mr. Parshall denied
that he considered these individuals as "troublemakers" (Tr.
489).
Mr. Parshall stated that Mr. Fowler would spend an hour and
a half making methane checks, and the rest of his 8-hour day
doing labor work. He confirmed that o~ one occasion Mr. Fowler
was gone for 2 hours and 10 minutes on a methane check, and when
he discussed it with him, "his timing changed and he shortened
his time" (Tr. 490). Mr. Parshall stated that Mr. Fowler's
assigned job was to do labor work and make methane checks, and
that Mr. Vavrek was responsible for making all of the other
safety checks in his capacity as the "safety man" (Tr. 492).
Mr. Parshall stated that he did not lay off Mr. Fowler
earlier because he needed someone to make the methane checks and
that Mr. Vavrek could not make them because his card was not
updated and Mr. Fowler was the only one with an updated card (Tr.
495) . In response to questions concerning what he may have told
Mr. Fowler and Mr. Broadwater when he laid them off, Mr. Parshall
stated as follows (1r. 495-496):

Q. Did you tell Mr. Broadwater and Mr. Fowler you were
laying them off because you weren't too happy with
their work?

A.

Yes.

Q.

Is that what you told them?

A. I just told them, "I'm through.
I don't need you
people anymore. I've caught up on my work."
Q. That sounds as if you laid them off for a lack of
work.
A. Lack of work. Exactly.
signed up for unemployment.
lack of work.

That is how they got
They were laid off for

Q. I thought you said you laid them off because you
weren't too happy with their work.
A.

Well, naturally --

494

Q.

Which one was it?

A. Okay. I wasn•t happy with their work, which is the
normal procedure for any superintendent on any construction job.
Q. Well, why not fire the man outright and say, 11 I 1 m
not happy with your work. You didn't do your job. You
didn't do this. You didn't do that. You're out the
door, over the hill. Take your bucket and go home? 11
Why didn't you tell them that?

A.
Because I told them they was laid off.
it.
I wasn•t happy with their work.
Q.

You kind of let them down easy?

A.

I just let them go.

That was

Mr. Parshall stated that Mr. Fowler and Mr. Broadwater
received unemployment benefits, and that he has never denied
anyone these benefits (Tr. 497). He confirmed that the violations which were issued on March 24, 1988, were issued 2 months
before Mr. Fowler and Mr. Broadwater were laid off, and he denied
any connection between the violations and the layoffs (Tr. 497).
He denied that Mr. Fowler ever stated to him that citations would
be issued and inspectors would come to the mine if certain conditions were not corrected, or that anyone else informed him that
Mr. F·o wler had made such statements (Tr. 498). He further stated
th~t during the entire time that Mr. Fowler worked for the
respondent, he never directly or indirectly made any statements
about his safety concerns (Tr. 498).
Mr. Parshall stated that when he discussed Mr. Fowler's lay
off with Mr. McDowell, he informed Mr. McDowell that he wanted to
lay off Mr. Fowler because he was 11 veryunsatisfactory and not
productive at all. 11 He denied that he was aware that
Mr. Broadwater had raised any concerns .c oncerning about PCB
exposure, and also denied any knowledge about any request by
Mr. Bair to be tested for PCB exposure (Tr. 500). He pointed out
that Mr. Fowler and Mr. Broadwater were still employed many weeks
after the MSHA inspectors came to the mine and closed it (Tr.
501). He confirmed that after Mr. Fowler and Mr. Broadwater were
laid off, 11 quite a few other people 11 were hired as equipment ·
operators as the job progressed, but that the hirings were made 4
or 5 months after they were laid off. He confirmed that he did
not consider hiring Mr. Fowler and Mr. Broadwater back, and
stated that 11 I don•t know if they ever came back to ask for a
job, but I wouldn't hire them 11 (Tr. 503-504).

495

Mr. Parshall stated that the respondent's work at the mine
site did not end until late December, 1988,- or January, 1989, but
that he was not there to complete the job (Tr. 505-506). He
denied that any complaints were ever made about his smoking
underground, but admitted that he did smoke outside of the slope
and that an MSHA inspector informed him that he was to leave his
smoking material at least 25 feet away from the slope. He denied
that Mr. Vavrek, Mr. Fowler, or Mr. Broadwater ever discussed his
smoking with him, and he did not know if they made any issue
about his smoking (Tr. 508).
Jay McDowell, testified that he was last employed by the
respondent in October, 1988, as the project manager in connection
with the work to seal the mine. He identified the three "management11 personnel as himself, Mr. Parshall, and Mr. Clayford
Matthews, the superintendent of the sealing work performed at the
Number 4 shaft (Tr. 480, 510). He confirmed that Mr. Brienza and
Mr. Laida worked on the project but were not part of management.
Mr. McDowell stated that he issued work orders to Mr. Parshall
and Mr. Matthews, and that he never directed or authorized that
any orders given to these individuals be passed on to Mr. Laida
or Mr. Brienza to be passed out to the other men (Tr. 510). He
stated that he was at the job site on a daily basis and maintained an ot'fice there, and he believed that everyone knew that
he was at the site because he was familiar with everyone there.
·His involvement with the project began in January, 1988, and
ended during the first part of October, 1988. He entployed as
many as 27 men on the project and they all knew where his office
was located because they came there to fill out forms when they
were hired. There was a bulletin board in the office which
contained a copy of the Steelworkers Agreement, the health and
welfare benefits, and copies of MSHA citations (Tr. 512, exhibit
R-2).
Mr. McDowell identified exhibit R-3 as a copy of a "green
registration form used as part of the signup package for new
employees" the day they start work and he stated that it is
signed by Mr. John Robert Bair. He also identified an insurance
and health and welfare waiver form signed by Mr. Bair when he was
hired (exhibit R-4; Tr. 514-515) . He further identified copies
of the Steelworkers union cards signed by Mr. Fowler and
Mr. Broadwater when they were hired, or shortly thereafter
(exhibit R-5; Tr. 517).
Mr. McDowell stated that he entered into negotiations with
some subcontractors to dismantle the mine preparation plant, and
that he knew that this would result in the reduction of his work
force. He stated that he discussed these· negotiations with
Mr. Parshall in April or May, 1988, and when his work on the
project was diminishing he discussed who would be laid off with
Mr. Parshall, and that other people were laid off before
Mr. Fowler. Mr. McDowell confirmed that he initially authorized

496

the hiring of Mr. Fowler as a laborer after Mr. Matthews stated
that he could use him, and that he knew that Mr. Fowler could
inspect for methane and that this was "a plus" (Tr. 520). He
stated that he did not consider Mr. Fowler's work performance to
be satisfactory because he was "not very enthusiastic," had poor
work skills, was not a "team play"er," and was not particularly
qualified in any of his assigned work activities. He stated that
Mr. Fowler was allowed to perform duties other than an laborer,
and these included "burning" and operating a highlift, but that
his performance at these tasks was not satisfactory (Tr. 521).
Mr. McDowell stated that on one occasion, one of the principal owners of the company, Philip Stout, his father-in-law, was
at the job site, and after observing Mr. Fowler's performance
while dumping some material commented to him (McDowell) that
Mr. Fowler "didn't know what he was supposed to be doing" and
that "I had better find someone who could get him on the right
track and pointed in the right direction." Mr. McDowell stated
that Mr. Fowler was apparently not working and that Mr. Stout's
comments about Mr. Fowler embarrassed him. Mr. McDowell stated
that he mentioned Mr. Stout's displeasure to Mr. Fowler and told
him that Mr. Stout was "pissed off" and that he (Fowler) had
emba+rassed him (Tr. 524). Mr. McDowell stated that he considered this incident in his decision to lay off Mr. Fowler.
Mr. McDowell confirmed that seven MSHA inspectors came to
the site on March 24 and 25, ·1988, and he was told that they were
there for an inspection. He also confirmed that they issued a
series of violations and would not allow any work to continue
until they were remedied. He stated that he had no knowledge
that Mr. Fowler had called the inspectors, and had no reason to
believe that he had done so. He stated that Mr. Fowler and
Mr. Broadwater never made any complaints to him about safety
violations, and that no one ever told him that they had made any
complaints (Tr. 525).
Mr. McDowell stated that the decision to lay off Mr. Fowler
was made 10 days in advance of his release, and that he delayed
the lay off because Mr. Fowler was the only one at the job site
who could do the methane testing and he needed to prepare others
to do the testing. He subsequently learned from State Inspector
Vincinelli after Mr. Fowler's lay off that the individuals who
were trained under MSHA's guidelines to make the tests did not
meet the state requirements for certification, and he then
requested Mr. Art Jones to make the checks (Tr. 528).
Mr. McDowell confirmed that Inspector Newhouse was at the
mine on the day the slope was shutdown, but said nothing about
interviewing any of the men. Mr. Newhouse returned on June 1,
1988, in connection with the transformer issue, and although
Mr. McDowell understood that Mr. Newhouse may have interviewed
everyone at the site, he did not know who he spoke with since he

497

returned to his office while Mr. Newhouse was at the work areas
(Tr. 530).
Mr. McDowell identified exhibit R-6 as a May 6, 1988, proposal made by a subcontractor for the demolition of the preparation plant, and he confirmed that he signed it. There was no
question that Mr. Parshall knew about this and that there would
be a marked reduction in the work force, and Mr. McDowell knew of
no reason why Mr. Parshall would have told Mr. Broadwater that
"there was a lot of work coming up" (Tr. 533}.
Mr. McDowell denied ever telling Mr. Fowler that ''there was
no problem with his work," and he stated that he first learned
about MSHA's 800 telephone number from Mr. Newhouse during the
investigation of the transformer issue after Mr. Fowler was laid
off. He also denied ever telling Mr. Fowler that he "was not
going to be a safety nut," and denied cursing Mr. Bair or
Mr. Knisely (Tr. 539). He further stated that he learned that
Mr. Fowler had made some complaints after he was laid off, and
that it came to his attention during the discrimination inquiry.
He denied that these complaints had anything to do with his lay
off on May 23, 1988 (Tr. 540).
With regard to Mr. Broadwater, Mr. McDowell characterized
him as "a sad sack," and stated that "he wanted to do well, but
he ·was just not capable of doing it." He stated that he had a
friendly feeling for Mr. Broadwater and hired him as a heavy
equipment operator, but that he performed "very poorly" and "did
not have a sense of his work area." He assigned Mr. Broadwater
work burning or cutting metal and that he was very slow at this
task, had to be taken "step by step" and could not think for
himself or do the work on his own and always "seemed to be at a
loss for where he was or what he was doing" (Tr. 543).
Mr. McDowell confirmed that he paid Mr. Broadwater at an hourly
rate ·of $11, which was the rate for an equipment operator, and
although the pay rate for a skilled laborer doing burner work was
$8 an hour, he did not cut his pay and kept him at the higher
rate of $11 an hour even though he was doing lower rate work, and
he did so because he liked him (Tr. 543-544). Since
Mr. Broadwater did not perform well as a burner, he was taken off
that work and assigned to a "basic grunt" position around the
project putting pipe together at the $8 an hour rate, and he and
Mr. Parshall finally decided to lay him off (Tr. 544).
Mr. McDowell stated that Mr. Broadwater never came to him
with any safety complaints, and the fact that he may have made
any such complaints had nothing to do with his decision to lay
him off. He confirmed that he hired three or four equipment
operators during a period of a month after Mr. Broadwater was
laid off (Tr. 545). He denied that Mr. Brienza or Mr. Laida ever
communicated any safety complaints to him, and he knew of no
reason why anyone would consider them to be bosses, foremen, or

498

part of management. He confirmed that he never invested them
Hith any responsibility or authority _over the work force (Tr.
564) •

Mr. McDowell stated that he left the job before it .was
finished in January or February of 1989, and some of the men who
talked to the Federal inspectors about the transformers were
still employed by the respondent and finished out the job at the
time that he left (Tr. 548). Mr. McDowell identified exhibit
R-7, as a cover letter and his response to a grievance report he
received from the Steelworkers Union with regard to Mr. Fowler,
and confirmed that he stated that Mr. Fowler's "work qualification was less than _those of the workers I continue to employ."
Mr. McDowell stated that he heard nothing further about the
grievance and made no further inquiry (Tr. 552). He stated that
Mr. Fowler and Mr. Broadwater were not laid off because of any
safety complaints, and that they were laid off because "they were
the most unsatisfactory or the least satisfactory employees of
those left in the area" he was going to reduce (Tr. 552) .
On cross-examination , Mr. McDowell confirmed that his wife
is employed by ·the respondent as the controller and that she is
the daughter of one of the principal owners (Stout). He stated
that he stopped working for the respondent to do graduate college
work, but did not pursue this endeavor, and that he worked in the
family business for approximately 8 years (Tr. 555). Insofar as
Mr . Laida and Mr. Brienza are concerned, he believed that as a
carpenter and cement finisher, they were "key people," and "a
couple of the dominant workers" (Tr. 564) . He confirmed that in
a statement made on June 13, 1988, he stated that Mr. Brienza and
Mr. Laida may be used as "key people in their work group" but
that they were not foremen (Tr. 5 68).
Although he did not have any specific ·information to refer
to, Mr. McDowell did not dispute the fact that after Mr. Knisely
and Mr. Bair were laid off, there were at least 11 additional
hirings made at the project . He could not specifically state
when the subcontract he previously referred to was performed, but
believed that it could have been 4 to 5 weeks later (Tr. 570).
Mr. McDowell confirmed that he spoke with Mr . Knisely and
Mr. Bair, but denied that he was angry with them. He stated that
Mr. Bair was aggressive and demanded to know about his union
c ard, and that a question was raised about whether they were
handling any asbestos (Tr . 580). Mr . McDowell conceded that he
may have sworn, but denied that he cursed at them and stated that
Mr . Bair put him "in a defensive position." He stated that
Mr . Bair "got in his face," and although Mr. McDowell admitted
that he may have "used some choice words," he asserted that "I
did not direct them at his person" (Tr. 581).

499

.when asked by the Court for an explanation as to why the
in th~s proc7e~i~g believed ~hat the respondent engaged
J.n J.llegal durnpJ.ng actJ. VJ. tJ.es at the rnJ.ne and vlhether they had
"an ax to grind," Mr. McDowell speculated that "they were disgruntled employees and pursued an avenue of retaliation 11 (Tr.
601). He explained that at the time the respondent began work on
the demolition project at the mine the United Mine Workers
picketed the mine entrance because they felt that the work should
have been done by coal miners rather than the respondent, and
that he was physically accosted and threatened and had difficulty
startin~ the job.
He stated that he had no problem with the
Steelworkers Union, and speculated that the UMWA was concerned
that the steelworkers were going to represent the workers on the
project (Tr. 602). Mr. McDowell stated that since the mine was
closed down and there were unemployed miners in the area, he
believed that it would be "good P.R." to hire the miners that had
previously worked in the mine because they were familiar with the
facility. He further speculated that some of the miners were
"antimanagement and pro UMWA" and that they resented the respondent doing the work and "it carne back to haunt me" (Tr. 603).

~it~esses

Mr. McDowell confirmed that he vaguely knew MSHA Inspector
Spangler and did not spend much time with any of the MSHA inspectors who carne to the mine, and he believed that Mr. Spangler was
there when the citations were issued on the slop~ (Tr. 604).
When asked whether Mr. Spangler informed him as to who may have
complained, Mr. McDowell responded "absolutely not 11 (Tr. 604).
He denied that Mr. Fowler ever told him that if certain conditions were not corrected, inspectors may. come to the mine and
take corrective action (Tr. 604). He denied that Mr. Vavrek ever
made such a statement prior his appointment as the safety director, but conceded that after his appointment, Mr. Vavrek vTOuld
periodically tell him about certain conditions that needed attention and that "we better take care of it" (Tr. 605).
Mr. McDowell further stated that when Mr. Vavrek advised him
about the need for fire extinguish~rs or backup alarms, he
(McDowell) would order them. Mr. McDowell stated that as the
safety man, it was Mr. Vavrek's responsibility to work with ·
Mr. Parshall to resolve safety matters or to order the necessary
safety equipment (Tr. 606).
Mr. Broadwater was recalled by the respondent as an adverse
witness, and he confirmed that he complained about the transformers being put down the shaft. He further confirmed that he
was interviewed by Inspector Newhouse "for a short time" about
the . alleged incident, but did not wish to speak with him at
length at the mine site and asked for his phone number so that he
could call him at a later time. He confirmed that he did not
call him (Tr. 612).
Mr. Vavrek was called in rebuttal by the complainants, and ·
he confirmed that during his employment with the respondent he

500

received the appropriate training and had the qualifications for
making methane tests, and that some of the employees were also
trained to make such tests (Tr. 637). He also confirmed that
Mr. Barry Cox was hired by the respondent after Mr. Fowler was
terminated and that Mr. Cox was a certified person qualified to
make the required preshift examinations and sign the books (Tr.
638) •
Mr. Vavrek confirmed that it was his . understanding that
Mr. Fowler was to conduct preshift checks anytime that burning
was going on every 15 minutes, and before any dumping was done.
He believed that if Mr. Fowler were visiting a job site while
burning was · taking place it would be consistent for him to remain
there and make his checks while burning was being done (Tr. 639).
He recalled an incident when Mr. Fowler came back later than
normal and got into an argument with Mr. Parshall over the
ma·tter, and that Mr. Fowler told Mr. Parshall that burning was
taking place (Tr. 640).
In response to further questions, Mr. Vavrek stated that the
day before he was terminated, Mr. Fowler approached him and
Inspector Spangler and stated to them that he was not making his
gas checks, and that Mr. Fowler also complained about asbestos.
Mr; Vavrek stated that Mr. · Fowler believed that he should be
performing these checks because he was the fire boss . After
making these statements, Mr . Vavrek stated that he and Inspector
Spangler then went to the mine office to check the books and the
mine sealing plan and that Mr. McDowell was present~ Mr. Vavrek
stated that he wanted to check the plan to determine whether or
not Mr. Fowler was supposed to be the person making the gas
checks and that the matter was discussed with Mr. McDowell after
speak i ng with Mr. Hoelle, and that Mr. Hoelle had made a statement that Mr. Fowler was supposed to be making the gas checks.
Mr. Vavrek stated that Inspector Spangler made the statement that
"Terry approached us that the air--that the gas readings were not
being made" (Tr. 642-647).
Mr . McDowell was recalled by the Court and he denied that
the conversations testified to by Mr. Vavrek with respect to
himself and Mr. Spangler ever took place. Mr. McDowell denied
that Mr. Vavrek and Mr. Spangler ever visited his office about
the matter concerning the gas checks (Tr. 653). Mr. McDowell
further denied any knowledge that Mr . Vavrek was qualified to
make gas checks when he hired him. He also denied that he knew,
or had reason to know, that Mr. Fowler had complained to any
inspector, state or federal, that he was not making his gas
checks (Tr. 654). He confirmed that state mine inspector
Vincinelli told him that he could not operate unless he had
someone making gas checks, and that 3 to 5 days later he had
Mr. Art Jones make the checks . Mr. McDowell did not recall that
he ever received any citations for no~ having properly qualified

501

people make gas checks, or for not having gas checks done (Tr.
655). Complainant's counsel produced a copy of a citation issued
by Inspector Conrad on March 25, 1988, serVed on Mr. Parshall
citing· a violation of section 77.1713, which states that "The
examination of each working area was not being performed by a
certified person," and Mr. McDowell stated that he did not
believe it was a citation for not performing methane checks, but
"did not know" if this was the case. Although he could not
recall any citations for failing to make gas checks, Mr. McDowell
stated that it .was "a possibility" that the respondent was issued
.t he citation in question . and that he "wouldn't be surprised" and
did not dispute its authenticity (Tr. 657-658).
Findings and Conclusions
In order to establish a prima facie case of discrimination
under section 105(c) of the Mine Act, a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity and (2} that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Company,
2 FMSHRC 2768 (1980}, rev'd on other grounds sub nom.
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal
Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v.
Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511
(November 1981), rev'd on other grounds sub nom.
Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator
may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no way
motivated by protected activity.
If an operator cannot rebut the
prima facie case in this manner it may nevertheless affirmatively
defend by proving that it was also motivated by the miner's
unprotected activities alone. The operator bears the burden of
proof with regard to the affirmative defense. Haro v. Magma
Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden of
persuasion does not shift from the complainant. Robinette,
supra. See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983);
and Donovan v. Stafford Construction Company, No. 83-1566 D.C.
Cir. (April 20, 1984) (specifically-approving the Commission's
Pasula-Robinette test).
See also NLRB v. Transportation Management Corporation,
U.S.
, 76 L.ed.2d 667 (1983), where the
Supreme Court approved the NLRB's virtually identical analysis
for discrimination cases arising under the National Labor
Relations Act.
Direct evidence of actual discriminatory motive is rare.
Short of such evidence, illegal motive may be established if the
facts support a reasonable inference of discriminatory intent.
Secretary on behalf of Chacon v. Phelps Dodge corp., 3 FMSHRC
2508, 2510-11 (November 1981), rev'd on other grounds sub nom.

502

Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983};
Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984) .
As the Eight Circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in
NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir.
1965):
It would indeed be the unusual case in which the
link between the discharge and the [protected) activity
could be supplied exclusively by direct evidence.
Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial
evidence . Furthermore, in an~lyzing the evidence,
circumstantial or direct, the [NLRB] is free to draw
any reasonable inferences.
Circumstantial indicia of discriminatory intent by a mine
operator against a complaining miner include the following:
knowledge by the operator of the miner's protected activities;
hostility towards the miner because of his protected activity;
coincidence in time between the protected activity and the
adverse action complained of; and disparate treatment of the
complaining miner by the operator.
In Bradley v. Belva Coal Company, 4 FMSHRC 982, 993 (June
1982), the Commission stated as follows:
As we emphasized in Pasula, and recently
re-emphasized in Chacon, the operator must prove that
it would have disciplined the miner anyway for the
unprotected activity alone. Ordinarily, an operator
can attempt to demonstrate this by showing, for
example, past discipline consistent with that meted to
the alleged discriminatee, the miner's unsatisfactory
past work record, prior warnings to the miner, or
personnel rules or practices forbidding the conduct in
question. our function is not to pass on the wisdom or
fairness of such asserted business justifications, but
rather only to determine whether they are credible and,
if so, whether they would have motivated the particular
operator as claimed.
Protected Activity
It is clear that Mr. Fowler and Mr. Broadwater enjoy a .
statutory right to voice their concerns about safety matters or
to make safety complaints to mine management or a mine inspector
wi tho.u t fear of retribution or harassment by management.
Management is prohibited from interfering with such activities
and may not harass, intimidate, or otherwise impede a miner's

503

participation in these kinds of activities. Secretary of Labor
ex rel. Pasula v. Consolidation Coal Co.; 2 FMSHRC 2786 (October
1980), rev'd on other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3d Cir. 1981), and Secretary of Labor
ex rel. Robinette v. United Castle Coal co., 3 FMSHRC 803 (April
1981). Baker v. Interior Board of Mine Operations Appeals,
595 F.2d 746 (D.C. Cir. 1978); Chacon, supra.
Communication of Safety Complaints and Respondent's Knowledge of
the Complaints
The critical issues in these proceedings concern the questions of whether or not Mr. Fowler and Mr. Broadwater in fact
made safety complaints to mine management or to mine safety
inspectors, whether the complaints were otherwise communicated to
management, whether management knew or suspected that Mr. Fowler
and Mr. Broadwater made the complaints, and whether the terminations of Mr. Fowler and Mr. Broadwater were retaliatory and
motivated by the complaints, rather than for other legitimate
management reasons.
In a number of safety related "work refusal" cases, it has
· been consistently held that a miner has a duty and obligation to
communicate such complaints to mine management in order to afford
the operator with a reasonable opportunity to address them. See:
Secretary ex rel. Paul Sedgmer et al. v. Consolidation Coal
Company, 8 FMSHRC 303 (March 1986); Miller v. FMSHRC, 687 F.2d
194 (7th Cir. 1982); Simpson v. Kenta Energy, Inc ., 8 FMSHRC
1034, 1038-40 (July 1986); Dillard Smith v. Reco, Inc., 9 FMSHRC
992 (June 1987); Sammons v. Mine Services Co., 6 FMSHRC 1391
(June 1984); Charles Conatser v. Red Flame Coal Company. Inc .,
11 FMSHRC 12 (January 1989), review dismissed Per Curiam by
agreement of the parties, July 12, 1989, u.s. Court of Appeals
for the District of Columbia Circuit, No. 89-1097.
Although the protected safety activities of Mr. Fowler and
Mr. Broadwater concerned safety complaints rather than work
refusals, the same principals apply and the complainants have the
burden of establishing that they in fact made safety complaints,
that they were communicated to mine management or an inspector,
that management knew or had reason to know about the complaints,
and that the adverse actions which followed were the result of
the complaints and therefore discriminatory.
In short, the
complaints must establish a nexus between their complaints and
the adverse discriminatory actions which followed.
See: Sandra
Cantrell v. Gilbert Industrial, 4 FMSHRC 1164 (June 1982); Alvin
Ritchie v. Kodak Mining Company, Inc., 9 FMSHRC 744 (April 1987);
Eddie D. Johnson v. Scotts Branch Mine, 9 FMSHRC 1851 (November
1987}; Robert L. Tarvin v. Jim Walter Resources, Inc., 10 FMSHRC
305 (March 1988); Connie Mullins v. Clinchfield Coal Company,
11 FMSHRC 1948 (October 1989).

504

The fact that the respondent may not have known as a fact
that Mr. Fowler or Mr. Broadwater had complained to an MSHA
inspector, or called MSHA to the mine to pursue a safety cornplaint, is immaterial. In Moses Development Corporation,
4 FMSHRC 1475 (1982), the Commission held that a complaining
miner may establish a prima facie case by (1) proving that the
operator suspected that he had engaged in protected activity, and
(2) the adverse action was motivated in any part by such suspicion. See also: Judge Broderick's similar hold in Larry Brian
Anderson v. Consol Pennsylvania Coal Company, 9 FMSHRC 413 (March
1987).
During the cours~of the hearing, and in his posthearing
brief, Mr. Fowler's counsel attacks the credibility of
Mr. McDowell (Tr. 557-563; proposed finding #32, pg. 8, brief) .
In support of his argument, counsel pointed out that the respondent initially failed to file an answer to the complaint, and he
suggested that its failure to do so is indicative of its continued deliberate disregard for the law. Counsel further pointed
out that the corporate respondent, in its response to my Order to
Show Cause of February 2, 1989, stated that pursuant to an agreement with Mr. McDowell, he would continue to assume responsibility for the handling of the complaint even though he had
terminated his employment relationship with the respondent in
late October, 1988, and that the respondent assumed that
Mr . McDowell would continue to handle the matter and that all
material received by the respondent from the Commission was
brought to Mr. McDowell's attention. Counsel asserts that
Mr. McDowell "testified clearly under oath that the papers had
not been turned over to him for a response . Nor had he been
contacted by respondent's attorney as represented in the pleadings." Counsel further asserts that these denials on
Mr. McDowell's part "is further indicative of management's
ignorance and contempt of mine safety and health regulations, and
• • • that such false swearing by a party and/or his attorney is
a fraud upon the court, and a proper ground for the imposition of
sanctions under the Federal Rules of Civil Procedure Rule 11."
Mr. McDowell's testimony was in response to a question by
Mr. Fowler's counsel as to whether he was delegated the responsibility of responding to the complaint in October, 1988,
Mr. McDowell responded as follows at (Tr . 557-558) :
A . No, sir . They didn't delegate all the responsibility of that to me .

*

*

*

*

*

*

*

A.
I understand the point. No. I was not delegated.
I was not delegated that. And Atlas Services, it says,
assumed, and they did, and I did, in fact, assume that
role .
I felt a r e sponsibility.

505

And at (Tr. 559- 560):

Q. Can you explain why you didn't file any response in
this case?
A.

*

Because I wasn't handling that .

*

*

*

*

*

Q.

Did anybody tell you to take care of it, Jay?

A.

No, sir.

*

The record in these proceedings reflects that all of the
prehearing orders and notices, including the complaint, were
served on the corporate respondent by certified mail at a post
office box number in Washington, Pennsylvania. The returned
postal service certified mail receipts reflect that they were
received and signed for by an individual other than Mr. McDowell .
In its response to my show cause order , the respondent asserted
that it first learned about Mr. McDowell's failure to respond to
the complaint when it received my order. Respondent pointed out
that in view of MSHA's finding after investigating the complaints
that a violation of the Act had not occurred, and in view of its
denials that it discriminated against Mr. Fowler or
Mr. Broadwater, respondent would have no reason to ignore its
responsibility to respond to the complaints, and that its failure
to do so w~s due solely to the neglect on the ·part of
Mr. McDowell in failing to file a response to the complaints .
I take note of the fact that at the time the complaints and
prior notices were issued, the respondent was not represented by
counsel .
I also take note of the fact that Mr . McDowell is not
an ·attorney. While it is true that Mr. McDoweJl's father- in-law
is the company president, and that Mr. McOowell ' s wife worked for
the company, and that he was still in contact with the respondent
after he terminated his employment relationship in October, 1988,
he was not employed by the company at t~e time Chief Judge Merlin
issued an Order on November 23, 1988, directing the respondent to
file an answer to the complaints, and at the time I issued my
show cause order on February 2, 1988 .
While it is also true that Mr. McDowell's assertions that he
failed to respond to the complaints because he "was not handling"
the matters, and that no one told him to take care of the
matters, is contradicted by the response and supporting affidavit
of his father- in- law in reply to my show cause order, which
reflects an agreement and an assumption on the part of the
respondent that Mr. McDowell would continue to handle the matters
after his employment with the respondent ceased, I cannot conclude that Mr . McDowell ' s testimony amounts to ''false swearing . "

506

Mr. McDowell's denials that he was deleaat2d the responsibility
to respond to the complaints was truthfully explained when he
testified that the respondent assumed, as did he, that he would
assume this role and that he felt a responsibility to do so.
Although Mr. McDowell may be guilty of neglect or ignorance in
failing to carry out this responsibility, I cannot conclude that
he is guilty of willfully lying or that he has shown contempt for
these proceedings. Nor can I conclude on the basis of this very
brief testimony that all of his testimony in these proceedings is
less than credible and is tainted and untrue.
Mr. Broadwater's Complaint, Docket No. PENN 88-281-D
In his posthearing brief, Mr. Broadwater's counsel asserts
that Mr. Broadwater's complaints did not concern any specific
MSHA requirements, but focused on his concerns with the proper
handling and disposal of PCB contaminated equipment at the mine
site, and that the respondent retaliated against him by terminating him for voicing these concerns about the PCB materials and
his "involvement" in calling the inspectors about the alleged
dumping of these materials.
(MSHA investigated the matter, and
found no evidence of illegal dumping). Counsel argues that
Mr. Broadwater witnessed the alleged dumping, reported the incident to the inspectors, and that he made it known to other
employees, and in particular Homer Nicholson, that he had called
the inspectors. Counsel characterized Mr. Nicholson as "a credible and impartial employee." Counsel concluded that it appears
that Mr. Broadwater called the Federal inspectors on the PCB
issue, and that fact became known to respondent. This led to
respondent's decision to fire Mr. Broadwater.
(Proposed Finding
No. 35, posthearing brief).
Contrary to the assertion that Mr. Nicholson was told by
Mr. Broadwater that he had called the inspectors about the PCB
incident, Mr. Nicholson testified that during a dinner hour at
the mine Mr. Broadwater told him that he was going to call the
inspectors about the incident. Mr. Nicholson confirmed that he
did not inform mine management about Mr. Broadwater's PCB complaint, and although h~ speculated that he may have told
Mr. Laida and Mr. Brienza, individuals who he thought may have
been foreman, I find no credible evidence that Mr. Nicholson told
anyone about Mr. Broadwater's statement that he intended to call
the inspectors about his PCB concerns. Mr. Brienza testified
that Mr. Broadwater never made any safety complaints to him, and
although he confirmed that he "had heard" about the transformer
dumping incident, he had no personal knowledge of the matter. I
find nothing in Mr. Brienza's testimony to indicate that
Mr. Nicholson may have told him about Mr. Broadwater's statement
concerning the dumping incident.
Former safety committeeman and safety director Vavrek confirmed that he too "heard about" the PCB dumping incident, but

507

that he was not at the mine when this incident allegedly
occurred. Mr. Vavrek testified that Mr. _Broadwater expressed his
concern to him about this incident while having lunch, and that
Mr. Broadwater told him that he had called the inspectors about
the matter. Mr. Vavrek confirmed that ' he never told Mr. Parshall
or Mr. McDowell about Mr. Broadwater's statement that he had
called the inspectors, and when cross-examined about
Mr. Broadwater's statements, Mr. Vavrek further confirmed that he
said nothing about this statement to MSHA Special Investigator
John Savine, .the individual who conducted MSHA's investigation of
Mr. Broadwater's discrimination complaint, and he admitted that
Mr. Broadwater told him that he had complained to MSHA after he
had been interviewed by Mr. Savine.
David Knisely confirmed that Mr. Broadwater had raised a
question about the presence of PCB's in the transformers which
were allegedly dumped, and that Mr. Parshall and Mr. McDowell
later came to the area where the building housing the transformers was being torn down, and where he, Mr. Broadwater, and
Mr. Bair were working, aDd that Mr. Bair and Mr. McDowell
exchanged a few words. Mr. Knisely stated that Mr. Bair had
raised a union question with Mr. Vavrek, and that Mr. Broadwater
inquired about the presence of any PCB's in the transformers.
Mr. Knisely f~rther confirmed that Mr. McDowell advised Mr. Bair
that he would look into the questions concerning the union. and
the PCB's, and that he and Mr. Bair went to Mr. McDowell's office
the next day to pursue the matters further.
There is nothing in
Mr. Knisely's testimony to indicate or suggest that
Mr. Broadwater said anything to him about complaining to the
inspectors, or that Mr. Broadwater said anything to Mr. Parshall
or Mr. McDowell about his PCB concerns. To the contrary, given
the fact that Mr. Bair was doing most of the complaining, the
fact that he and Mr. McDowell exchanged words, and the fact that
Mr. Bair and Mr. Knisely went to Mr. McDowell the next day to
seek further answers from him concerning these matters, I believe
that it is reasonably to assume that if Mr. McDowell suspected
anyone of complaining to MSHA about the PCB's, the likely candi-dates would have been Mr. Bair or Mr. Knisely, and not
Mr. Broadwater. Mr. Bair was the individual who initially complained about possible PCB contamination by making a request to
Mr . Vavrek that he be tested. Mr. Vavrek told Mr. Bair that he
would discuss his request with Mr. McDowell, and shortly thereafter, Mr. McDowell came to the area where he was confronted by
Mr. Bair.
Mr. Broadwater admitted that he never said anything to mine
management about the alleged PCB dumping incident. His belief
that management knew that he had complained was based on his
belief that management "probably must have had a snitch" as the
source of his complaint, but he could not identify the "snitch"
because he "did not have a crystal ball." Mr. Broadwater stated
that while he did not know for a fact that the transformers

508

contained PCB's, he was concerned about these and other contaminants being dumped down the mine shafts. As a result of this
concern, he testified that he called Mr. Fowler at his home and
informed him that the transformers were being dumped into the
shafts, and that Mr. John Cox, a friend of Mr. Fowler's, called
him back that same evening to discuss the matter. Mr . . Broadwater
testified further that Mr. Cox told -him that he would "send the
mine people down the next day," and that he (Cox) and Mr. Fowler
would call the inspectors (Tr. 264-265).
Mr. Broadwater confirmed that after returning to the mine
the day after his conversations with Mr. Cox and Mr. Fowler, the
inspectors were at the mine inquiring about the alleged dumping
incident and they interviewed several miners in private.
Mr . Broadwater stated that he said nothing to the inspector who
interviewed him about the dumping incident "because he feared for
his job." He further stated that he took the inspector's phone
number and told him that he would call him that evening, but did
not do so and only went to see him after his layoff when he filed
his discrimination complaint. Although Mr. Broadwater believed
that he told four individuals that day that he was "definitely
going to be telling the inspectors what I had seen," and that he
may have told Mr. Locy, none of these individuals were called to
testify in these proceedings. Although Mr. Locy testified, his
_testimony is devoid of any information that Mr. Broadwater said
anything to him about his intentions to inform the inspectors,
and Mr. Locy confirmed that he had a limited association with
Mr. Broadwater.
I conclude and find that the preponderance of the credible
testimony does not support a reasonable conclusion or inference
that Mr. Broadwater made any safety complaints to MSHA or any
inspector, or that he called the inspectors to the mine. The
only witnesses who purportedly had knowledge of Mr. Broadwater's
statements that he had called the inspectors were Mr . Nicholson
and Mr. Vavrek. Mr. Nicholson's testimony indicates that
Mr. Broadwater said he intended to call, and Mr. Vavrek confirmed
that the statement was made after Mr. Broadwater was terminated
during the time that Mr. Savine was conducting his investigation
of Mr. Broadwater's complaint. Contrary to any suggestions that
Mr. Broadwater called the inspectors, his own testimony reflects
that Mr. Cox andjor Mr. Fowler called the inspectors.
I further conclude that there is no credible evidence to
support any conclusion or reasonable inference that mine management suspected that Mr. Broadwater had complained to the inspectors about the alleged PCB dumping incident. Employees other
than Mr. Broadwater were interviewed and the interviews were
conducted in private and the names of the employees wer~ not
solicited or given (exhibit C-5). As noted earlier, although
Mr. Parshall and Mr. McDowell were aware of the PCB concerns
raised by Mr. Bair, it was Mr. Bair and Mr. Knisely who openly

509

pursued the matter, not Mr . Broadwater . Although Mr. Broadwater
. asser ted t.hat he told four individuals that he intended to tell
the inspectors a b out the PCB dumping i ncident while they were at
the mine conducting interviews, there is .absolutely no evidence
that Mr . Parshall or Mr. McDowell were aware of these statements.
In addition to his asserted complaints about the dumping of
PCB's , Mr. Broadwater testified that he was "concerned" about the
lack of fire extinguishers, unsecured oxygen and acetylene
bottl~s , a cherry picker with a broken stabilizer, and a man cage
which was used with a safety rig, and that he " had mentioned"
these matters - to Mr. Parshall. Mr. Broadwater also "believed"
that he had mentioned the oxygen and acetylene bottles to
Mr. McDowell when he began working for him.
I find no credible evidence that Mr. Broadwater ever complained about his "safety concerns" to any inspectors .
I find no
reasonable evidentiary basis to support any conclusion that these
" concerns" were in fact safety complaints. Mr. Parshall and
Mr. McDowell denied that Mr. Broadwater ever complained to them
about any safety matters~ Mr. Vavrek, the individual directly
responsible for safety matters at the project, confirmed that
when he received complaints from Mr. Fowler, he either told
Mr . Parshall, or corrected the conditions himself. Mr. Vavrek
also confirmed that when he advised Mr . McDowell about any complaints , and in particular, the fire extinguishers, Mr. McDowell
took care of the matter and provided the fire extinguishers.
Mr. Vavrek said nothing about any safety complaints communicated
to him by Mr . Broadwater . Further, with the exception of the PCB
matter, there is no evidence that Mr. Broadwater ever mentioned
his " concerns" about the other conditions to Mr. Fowler, and
there is no evidence that Mr. Broadwater was involved in the
incident of March 24 or 25, 1988, when the slope was shut down by
the MSHA inspectors. Mr . Brienza denied that Mr . Broadwater had
ever made any safety complaints to him, and he confirmed that it
was Mr. Fowler who commented about fire extinguishers, nonpermissible lights and the use of a generator in the shaft, and that
he (Brienza) did not inform Mr. Parshall or Mr. McDowell about
Mr. Fowler's comments.
In view of the foregoing findings and conclusions, and after
careful consideration of all of the evidence and testimony with
respect to Mr. Broadwater ' s discrimination complaint, I conclude
and find that he has failed to establish a prima facie case. I
conclude and find that the preponderance of all of the credible
testimony and evidence in Mr. Broadwater's case does not, either
directly or by any reasonabie inference, establish that
Mr. Broadwater made any bona fide safety complaints to MSHA or
its inspectors, or to mine management.
I further conclude and
find that the evidence does not support any conclusion that
Mr. Parshall or Mr. McDowell knew or suspected that
Mr. Broadwater had made any safety complaints, or that their

510

decision to terminate his employment was in any way connected
with any safety complaints. I further conclude and find that
Mr. Broadwater's termination was not the result of any illegal
discrimination, and that his termination was not motivated by
mine management's desire to retaliate against him for making
safety complaints to mine management or to MSHA or its inspectors. Accordingly, Mr. Broadwater's complaint IS DISMISSED, and
the relief requested IS DENIED.
Mr. Fowler's Complaint, Docket No. PENN 88-267-D
Complainant's Arguments
In support of Mr. Fowler's complaint, his counsel a~gues
that the evidence establishes that during his first month at the
job site Mr. Fowler repeatedly brought mine safety concerns to
the attention of supervisory personnel on the job, but the conditions were not corrected. Under the circumstances, Mr. Fowler
contacted MSHA inspectors who came to the job site and shut the
slope down, and it was widely speculated on the job that
Mr. Fowler had called the inspectors, and that several witnesses,
including Mr. Parshall and other witnesses who testified for
Mr. Fowler corroborated the fact that Mr. Fowler was observed
speaking to the inspectors, and speculated that he was one who
had called them. Counsel cites the statement made by
Mr. Parshall that "had he known it was Fowler, he would have
fired him immediately" as evidence of the respondent's attitude
and response to anyone voicing safety concerns.
Counsel argues further that following Mr. Fowler's calling
of the inspectors to the site, Mr. Fowler continued to bring
other matters regarding MSHA's safety requirements to the attention of respondent's supervisory personnel, including the newly
appointed safety director, James Vavrek, who testified on
Mr. Fowler's behalf. Counsel asserts that Mr. Fowler subsequently made a complaint about uncertified personnel making
certain methane gas checks, and about other gas checks not being
made, on the day prior to his termination. In connection with
Mr. Fowler's complaint that the required gas checks were not
being made, a federal mine inspector (Spangler) and Mr. Vavrek
went to mine management (McDowell and Parshall) with Fowler's
complaint, and Mr. Vavrek testified that Mr. Fowler's name came
up as the person who had complained in the conversations with
management. Counsel points out that although Mr. Parshall and
Mr. McDowell denied that any such meeting with the inspector and
Mr. Vavrek ever took place, it is apparent from the testimony and
that of corroborating witnesses and circumstances, that such a
meeting did in fact occur, and that the inspection records
revealed that such a meeting did occur, but the inspector in his
report did not indicate that he had mentioned Mr. Fowler. Assuming that Mr. Fowler's name was not revealed with the meeting with
the inspector, counsel concludes that the identity of Mr. Fowler

511

as the person who complained was nonetheless readily deduced from
the nature and circumstances of the complaint, particularly since
Mr . Fowler was the certified fire boss who was required to make
the checks, and no one else would have complained about the gas
checks not being made by him.
Counsel further points out that immediately following the
meeting with the inspector about the gas checks not being made,
Mr. Fowler was terminated, and Mr. McDowell had to hire another
certified fire boss to perform the gas checks in order to continue the work at the site. Counsel concludes that mine management's complete denial of the existence of the meeting concerning
Mr. Fowler's complaint about the gas checks casts serious doubts
of its credibility with respect to its explanation of the circumstances which precipitated his termination, particularly in
light of the fact that the respondent failed to. produce any
records or documentation showing that Mr. Fowler's termination
resulted purely from a reduction in the work force.
Counsel ·
further concludes that Mr. Parshall's statement that had he known
of Mr. Fowler's complaints, he would have immediately terminated
him, casts further doubt on the respondent's motives and
credibility.
Counsel asserts that the work performed by the respondent at
the job site "was a relatively short-term, in-and-out sort of
job, where a number of people were hired for relatively short
period of time, and that there was a significant flux in the work
force." Under these circumstances, counsel asserts that it was
easier for the respondent to simply "let go" persons, such as
Mr. Fowler, who were being a "pain" about various safety issues.
Counsel further concludes that when management believed that
Mr. Fowler was no longer necessary to perform the gas checks,
they let him go, but were subsequently proven wrong because
management had to find someone else with Mr. Fowler's certifications in order to continue with the job _the day after the inspectors were once again called by Mr. Fowler.
In response to the respondent's assertion that Mr. Fowler's
termination immediately following his contacts with the inspectors was "mere coincidence," counsel maintains that i t is such
"mere coincidences" . that the Act was partially designed to prevent.
Finally, counsel concludes that the preponderance of the
evidence clearly supports the conclusion that Mr. Fowler was
terminated in retaliation for discharging his safety duties, and
reporting numerous safety violations to State and Federal inspectors, and being a "pain" on safety issues.
The Respondent's Arguments
Respondent argues that the safety complaints allegedly made
by Mr. Fowler were made to either Mr. Vavrek, or to Mr. Brienza,
a carpenter, or to Mr. Laida, a cement finisher, and that

512

Mr. Brienza and Mr. Laida were not bosses, supervisors, or in any
way connected with mine management. Respondent points out that
although Mr. Vavrek testified that he was aware of the fact that
Mr. Parshall was the job superintendent, and that Mr. McDowell
was the project manager, he confirmed that at no time did he
inform them that Mr. Fowler had complained about safety violations. Citing the applicable case law, respondentrs counsel
points out that ·a complaining miner must communicate any safety
complaints to the project foreman or other management or supervisory personnel in order to afford management an opportunity to
take corrective action, and to distinguish between genuine and
spurious invocations of the Act's protection.
Respondent asserts that Mr. Fowler's safety complaints were
nothing more than "gripes" communicated to fellow workers, and
although he was aware of Mr. Parsha-ll's and Mr. McDowell's management positions, he chose not to inform them of his alleged
safety complaints. Respondent rejects Mr. Fowler's attempt to
, persuade the court that he believed that Mr. Brienza and
Mr. Laida were management representatives and that his safety
complaint to them would constitute notice to management. Respondent points out that the evidence establishes that neither
Mr. Laida or Mr. Brienza were management personnel, that they
were both union members, worked side by side with Mr. Fowler, and
that daily orders to the work force were given by Mr. Parshall.
Respondent asserts that any work instruction that Mr. Brienza may
have given were based upon his job as a carpenter instructing
laborers to bring him materials to the job site.
Respondent argues that since Mr. Parshall and Mr. McDowell
were not aware that Mr. Fowler reported any alleged safety violations, or were aware that Mr. Fowler was the source of the complaints, they could not have discriminated against him for
registering such complaints. Respondent maintains that because
of the confidential manner in which a safety complaint is filed
with MSHA, the respondent did not know, nor did it learn until
the filing of the discrimination complaint, what individual
registered complaints with MSHA. With regard to the March 1988,
MSHA inspection which resulted in the closure of the mine slope
area by the inspectors, respondent asserts that Mr. McDowell was
unaware that Mr. Fowler had made the complaints of safety violations to MSHA.
Respondent maintains that it has articulated legitimate
business reasons for the layoff of Mr. Fowler, and that he was
laid off pursuant to the union contract as the least qualified
person to perform the existing work. Respondent points out that
in May 1988, the preparation plant demolition, which represented
a large portion of the reclamation and demolition project contracted to the respondent, was subcontracted to another contracting firm. When this occurred, a reduction in the work force was
indicated, and that before and after Mr. Fowler's layoff, other

513

workers were also laid off. Respondent maintains that Mr. Fowler
was laid off because of a reduction in the work force, because
his work performance was ineffective and unsatisfactory, and
because he was the least qualified employee to perform the
remaining job tasks, and that he was not laid off because of
reporting safety violations.
Mr. Fowler's Safety Complaints
The Alleged Dumping of PCB Contaminated Transformers
I find no credible evidence or testimony to establish that
Mr. Fowler made any complaints concerning the alleged dumping of
PCB contaminated transformers down a mine shaft, or that he was
otherwise involved in that alleged incident. Mr. Fowler was
terminated on May 23, 1988. An MSHA memorandum report of June 6,
1988, concerning this incident reflects that the dumping complaint was made to MSHA on June 1, 1988 (exhibit G-5). An
inquiry made by the appropriate Federal EPA office concerning
this incident reflects that an EPA inspection of the site
followed MSHA's inquiry, and it took place on October 25, 1988.
Thus, the complaint and inquiries conducted by MSHA and the EPA
in this matter came after Mr. Fowler's termination, and I cannot
conclude that this matter had any connection with Mr. Fowler's
termination on May 23, 1988.
MSHA's March, 1988, Inspection and Mine Slope Closure
The testimony and evidence adduced in this case establishes
that Mr. Fowler made safety complaints about the slope conditions
which triggered the MSHA inspection which resulted in the issuance of violations. I conclude and find that some of the complaints were made by Mr. Fowler to MSHA Inspector Conrad, to
union safety walkaround representative Vavrek, and to
Mr. Brienza, a carpenter. The critical question is whether or
not Mr. Fowler's slope complaints were made or communicated to
mine management (Parshall and McDowell), whether management had
any reasonable basis for believing that Mr. Fowler had complained, and whether they retaliated against him for complaining.
The evidence establishes that MSHA Inspectors Newhouse,
Spangler, and Conrad inspected the mine site in late March, 1988,
and issued several section 104(a) citations and section 104(d) (1)
citations and orders on March 24, 25, and 28, 1988 (exhibit C-3).
Although Mr. Vavrek testified that the slope was shutdown by an
imminent danger order, I find no evidence that any section 107(a)
imminent danger order was issued. A section 104(d) (1) order
issued on March 25, 1988, ordered the withdrawal of all "people
working underground" for the failure to provide self-rescue
devices to four employees working underground at the drift opening, and it was subsequently terminated on March 28, 1988. Two

514

additional section 104(d) (1) orders were issued on March 24,
1988, for failure to provide fire protection for a gas driven
electrical generator providing lighting at the track slope area
where sealing work was being performed, and for accumulations of
combustible oil on the motor compartment of a compressor being
used at the mine slope entrance. The operators of the compressor
and generator were ordered withdrawn. A section 104(d) (1) order
issued on March 24, 1988, ordered the withdrawal of a compressor
operator because of accumulations of combustible oil on the
cooling fan, motor mounting compartment, and the floor at the
slope entrance of the mine.
The section 104(a) citations issued on March 24 and 25,
1988, were issued for a number of violations of mandatory safety
standards, and the conditions cited are as follows: ·
Failure to record the examination of active work
areas of the mine.
Failure by a certified person to perform examinations of the No. 1 and No. 4 shaft working areas,
and the supply yard.
Failure to provide a back-up alarm on a dozer.
Failure to inspect and record the date of inspection of a fire extinguisher provided for a dozer.
Failure to provide a permanent inspection tag for
a fire extinguisher provided for a front-end
loader.
Failure to provide protective devices and to
remove gauges from oxygen and acetylene bottles
stored at the mine slope entrance .
Improper storage of gasoline and· oil at the mine
track slope area.
Failure to inspect mobile loading and haulage
equipment before placing it in service.
Failure to provide a back-up alarm for a truck
being operated in the supply yard.
Copies of the results of Mr. Fowler's daily inspections of
the mine shafts, and slope areas, during intermittent periods
from February 18, through May 17, 1988, including March 24 and
28, 1988, when nine of the violations were issued by the MSHA
inspectors, contain a notation by Mr. Fowler that on all of these
inspection days he found the areas to be "safe" and no violative
conditions are noted. When asked to explain why he had not

515

recorded any of the violative conditions in the mine examiner's
book, Mr. Fowler initially stated that "I just didn't want to see
the company have it inspected by the inspectors and give them a
bad name and write violations." He later explained that the
violative conditions occurred during the work shif.ts after he had
completed his examinations, and that at the time he conducted his
examinations, the areas were indeed "safe." He confirmed that no
one ever instructed him not to record any violative conditions in
the mine examiner's book.
Mr. Vavrek testified that Mr. Fowler complained to him and
to Mr. Brienza about the slope conditions, and he suggested that
Mr. Parshall was aware of the complaints because he was at the
slope area where the work was being performed, and that he told
Mr. Parshall about the complaints. However, with respect to
Mr. Fowler's complaints concerning the use of "illegal" lights on
the slope, Mr. Parshall's smoking at the slope, and the use of
gasoline powered chain saws and cement cutters inside the slope,
Mr. Vavrek testified that he had no knowledge whether
Mr. Parshall was informed about these complaints. In fact,
Mr. Vavrek specifically testified that he informed Mr. Brienza
about these complaints, and did not speak to Mr. Parshall or
Mr. McDowell about them.
Despite his testimony that he did not speak with
Mr. Parshall or Mr. McDowell about Mr. Fowler's slope complaints,
Mr. Vavrek suggested that he spoke to Mr. Parshall "on a few
occasions" about Mr. Fowler's safety concerns, and he confirmed
that Mr. Parshall would sometimes take corrective action, and at
times would do nothing about them. Mr. Vavrek confirmed that he
would sometimes take care of the problems himself, and that when
they were ignored by Mr. Parshall, he too would ignore them, even
though he was the union safety committeeman. Mr. Vavrek further
confirmed that when he advised Mr. McDowell about the need for
fire extinguishers, Mr. McDowell took appropriate action and
provided the fire extinguishers.
Mr. Brienza confirmed that Mr. Fowler "mentioned" or complained to him about the use of a generator and the lights in the
shaft, fire extinguishers, and self-rescue devices, and that
these matters were mentioned to him and other employees by
Mr. Fowler "as a group" during "general ·conversation."
Mr. Brienza denied that Mr. Parshall or Mr. McDowell were present
during these discussions, and he denied that he ever communicated
Mr. Fowler's complaints to them. Mr. Brienza took the position
that Mr. Fowler should have communicated his complaints directly
to Mr. Parshall or Mr. McDowell. Although Mr. Brienza's testimony reflects that the complaints made by Mr. Fowler to him may
not have been in the nature of "formal" safety complaints, I
nonetheless conclude and find that they were safety complaints
made by Mr. Fowler and communicated to Mr. Brienza.

516

Both Mr. Vavrek and Mr. Fowler, as well as other witnesses,
testified to their belief that Mr. Brienza and Mr. Laida were
mine foremen and part of management. Although Mr. Vavrek testified as to his belief that these individuals were mine foremen,
he admitted that when he was interviewed by. the MSHA inspector
during the investigation of Mr. Fowler's complaint, he told the
inspector that he was not sure that they were management personnel, and that he is still not certain. The respondent's
credible and unrebutted testimony establishes that Mr. Brienza
and Mr. Laida were not management personnel or mine management
foremen.
In fact, they were skilled craftsmen who were necessarily assigned laborers by Mr. Parshall to assist them · in their
work. The day-to-day management of the work and the workforce
rested with Mr. McDowell and Mr. Parshall, and I am not convinced
that the workforce was unaware that this was the case.
Mr. Fowler acknowledged that he was aware of the fact that
Mr. Parshall was the project superintendent, and that
Mr. McDowell was the project manager, and that any safety complaints would logically be filed with them. Under . the circumstances, I conclude and find that any safety complaints made by
Mr. Fowler to Mr. Laida or Mr. Brienza, were made to them in
their capacities as members of the union workforce, rather than
mine managers or foremen.
I further conclude and find that the
slope complaints made by Mr. Fowler to Mr. Vavrek were communicated to Mr. Vavrek in his union walkaround capacity rather than
a member of management.
Mr. Fowler asserted that 2 days before the MSHA inspectors
shutdown the slope area, he informed Mr. Parshall about the
viola~ive conditions which resulted in the issuance of the violations, and that he also informed Mr. McDowell about 11 a few of
them." Mr. Fowler could not recall which specific conditions he
complained to Mr. Parshall or Mr. McDowell about, and he confirmed that some of the conditions were corrected, but some were
not.
Mr. Vavrek testified that during the MSHA inspection which
resulted in the shutdown of the slope, Mr. Parshall and
Mr . McDowell were present, and that Mr. Fowler was speaking with
Inspector Conrad about hunting, and that the other employees who
were present were also speaking to the Inspector. Mr. Vavrek
stated that Mr. McDowell told him that he did not want Mr. Fowler
speaking with the inspector, but said nothing to him or any of
the other employees about talking to the inspector. Mr. Vavrek
did not know why Mr. McDowell singled out Mr. Fowler, and there
is no testimony that Mr. Vavrek ever communicated this instruction to Mr. Fowler, and Mr. Fowler did not mention the incident
during his testimony.
·
Mr. McDowell confirmed that he was aware of the fact that
the inspectors were at the site during the inspection of the
slope area which was shutdown, but he denied any knowledge that

51~

Mr. Fowler had called the inspectors, and stated that he had no
reason to believe that Mr. Fowler had complained to the inspectors. Mr. McDowell confirmed that Inspector Newhouse said
nothing to him about interviewing any of the employees who were
present, and he was asked no questions, either on direct, or
cross-examination, about his purported statement to Vavrek concerning his alleged admonition that he did not want Mr. Fowler
speaking to the inspectors.
Mr. Brienza, who was present at the slope area when the
inspectors were there, confirmed that he never heard Mr. Parshall
or Mr. McDowell say anything to Mr. Fowler suggesting that he not
speak with any of the inspectors. Mr. Parshall confirmed that he
observed Mr. Fowler speaking with the inspectors, and that
Mr. Brienza and laborer Ben Jordan were also present.
Mr. Parshall stated that he had no idea what the conversation was
all about, and he acknowledged that he was curious about who may
have complained to the inspectors and asked Inspector Newhouse
about it, and that Mr. Newhouse simply informed him that complaints may be filed through MSHA's toll-free telephone system
and informed him that the source of any complaint is confidential
and could not be revealed. Mr. Parshall denied any knowledge of
who may have complained to the inspectors.
I find no credible evidence or testimony to establish,
either directly, or by any reasonable inference, that
Mr. McDowell made the statement attributed to him by Mr. Vavrek.
such a statement, if in fact made, would lend support to an
inference that Mr. McDowell may have suspected that Mr. Fowler
made the complaint and did not want him speaking with the inspectors. However, there were other employees present who also spoke
with the inspectors, and there is no evidence to indicate that
Mr. McDowell expressed any concern about anyone else speaking to
the inspectors, what was said, or that he in any way interfered
with, or otherwise inhibited the inspectors.
If the statement
were made, I believe i t would be reasonaple to assume that
Mr. Vavrek would have communicated this to Mr. Fowler, and that
Mr. Fowler would have mentioned it during his complaint interview
with Inspector Savine, or. at least testified about it during his
testimony at the hearing. Under all of these circumstances, I
give no credence to Mr. Vavrek's uncorroborated testimony concerning this purported statement, and I conclude and find that
Mr. McDowell did not make the statement.
·
In a signed statement given to MSHA Inspector John Savine on
June 3, 1988, in connection with his discrimination complaint,
Mr. Fowler stated that he complained to Mr. Laida, Mr. Brienza,
and to "union walkaround safety man" Vavrek in March, 1988, and
that shortly after he began working for the respondent, he complained about the compressor located too close to the mine shaft
with oil over it, the lack of self-rescue devices, the use of a
gasoline powered grinder in the slope shaft, the failure to

518

properly seal the mine shafts, the use of nonpermissible lighting
1n the slope, the lack of back-up alarms, and the transportation
of unsecured oxygen and acetylene bottles (exhibit C-4).
In his prior statement, Mr. Fowler said absolutely nothing
about complaining to Mr. McDowell or to Mr. Parshall about any of
the safety complaints which he stated were made to Mr. Brienza,
Mr . Laida, or Mr·. Vavrek, and which resulted in the issuance of
the slope violations by the MSHA inspectors. The only reference
to Mr. McDowell was a statement by Mr. Fowler that he "thought"
that Mr. Vavrek may have told Mr. McDowell about his complaint on
May 19 or 20, 1988, about gas checks being made by uncertified
people.
In connection with this complaint, Mr. Fowler stated
that he did not make i t to "anyone in management." Indeed, the
only reference of complaints by Mr. Fowler to mine management is
his statement to Mr. Savine that he assumed that Mr. Brienza and
Mr. Laida were "management people" because they gave him orders.
In his prior statement to Inspector Savine, Mr. Fowler
stated that he did not believe that the respondent found out
about his complaints to Inspector Conrad from Mr . Conrad, but
believed that the respondent "found out from someone because my
name was always mentioned when inspectors carne around."
Mr. Fowler did· not mention Mr. Brienza or Mr. Laida as the
individuals who may have mentioned his name, but during the
hearing, he speculated that Mr. Brienza and Mr . Laida informed
Mr. Parshall about his complaints because they rode together to
work and that they "would run to management and tell them every. thing. 11 Mr. Fowler asserted that Mr . La ida and Mr. Brienza
talked about someone calling the inspectors, and that
Mr. Parshall and Mr. McDowell were angry and were trying to learn
the identity of the informant. Mr. Fowler further asserted that
Mr. Laida and Mr . Brienza commented "quite a few times" that "the
inspectors are here, Fowler must have called the inspectors."
. When a mine operator's adverse action against an employee
closely follows the employee's protected activity, that fact
itself may be considered evidence of an illicit motive.
Donovan
v. Stafford Construction Co . , 732 F.2d 954, 960 (D.C . Cir. 1984);
Secretary of Labor on behalf of Chacon v. Phelps Dodge Corporation, 3 FMSHRC 2508 (1981), rev'd on other grounds sub nom.,
Donovan v. Phelps Dodge Corporation, 709 F.2d 86 (D.C. Cir .
1983).
In Mr. Fowler's case, the evidence establishes that he
was laid off on May 23, 1988, 2 months after the MSHA inspectors
shutdown the slope area and issued · violations for the conditions
which Mr. Fowler alleged he had complained about.
Except for Mr. Fowler, none of the other witnesses who
testified on his behalf said anything about the purported statements made by Mr. Brienza and Mr. Laida that they suspected that
Mr. Fowler called the inspectors. Although Mr. Fowler told
Mr. Savine that his name was mentioned as the possible source of

519

the safety 'c omplaints, Mr. Fowler did not mention Mr. Brienza or
Mr. Laida as the source of the statements.
If it were true that
Mr. Brienza and Mr. Laida openly mentioned Mr. Fowler's name as
the possible source of the complaints "quite a few t,imes," I
believe it would be reasonable to assume that other employees
would have heard the statements, and would have testified about
them. Yet, no one other than Mr. Fowler, testified about any
such statements. Further, if it were also true that Mr. Brienza
and Mr. Laida routinely informed Mr. Parshall or Mr. McDowell
about everything that was going on, it would be reasonable to
assume that if they in fact informed them about their suspicions,
and Mr. Parshall or Mr. McDowell were predisposed to terminate
Mr. Fowler because of his safety complaints, I believe they would
have done so immediately, rather than wait for 2 months before
doing so.
In support of his conclusion that Mr. Parshall had knowledge
of Mr. Fowler's safety complaints, and would have fired him
immediately if he had known that it was Mr. Fowler who made the
safety complaints, Mr. Fowler's counsel cites Mr. Parshall's
"proffer" made in this regard during the hearing. Mr. Parshall's
statement came in response to certain bench questions and testimony by Mr. Parshall that even though Mr. Fowler or other
employees made safety complaints, they were still employed by the
respondent after any such complaints. Mr. Parshall made the
following statement (Tr. 501):
Whatever was--that they figured that we called--we
figured they might have called the MSHA people. They
were still employed. If I ever thought--if I was any
kind of a scrupulous man and I thought you called the
Federal inspector, if I was a scrupulous man, I would
lay you off tonight.
(Emphasis added).
Having viewed Mr. Parshall on the stand during his testimony, and after listening and specifically recalling this testimony, I believe that Mr. Parshall ·intended to use the word
unscrupulous rather than scrupulous. The term scrupulous means
"having moral integrity" (Webster's New Collegiate Dictionary),
and I seriously doubt that Mr. Parshall intended to convey the
impression that a scrupulous person would have immediately fired
anyone for complaining to an inspector. I do not believe that
Mr. Parshall had any intention of admitting that he would
immediately fire anyone who complained to an inspector, particularly in light of his consistent denials that Mr. Fowler was
terminated because of his safety complaints. Under the circumstances, and taken in context, I reject the suggestion that this
statement by Mr. Parshall supports any conclusion that he was
aware that Mr. Fowler complained to the inspector, or that he was
predisposed to terminate Mr. Fowler because of such complaints.

520

After careful examination of Mr. Vavrek's testimony, I find
it contradictory and inconsistent with respect to whether or not
he communicated Mr . Fowler's safety complaints to Mr. Parshall or
to Mr. McDowell. Mr. Vavrek stated that he did not know whether
Mr. Parshall was advised of some of the complaints (Tr. 35) . He
stated that Mr. Parshall was aware of the complaints because he
was at the job site where the work was being performed, and that
he advised Mr. Parshall about Mr . Fowler's "bringing up safety
matters" on "a few occasions" (Tr. 54-55). He then stated that
Mr. Fowler made his complaints to and through Mr. Brienza (Tr.
71), and that he (Vavrek) believed that Mr. Parshall or
Mr. McDowell had knowledge that Mr. Fowler had made the slope
complaints 2 days before the sl9pe was closed down by the inspectors because Mr. Brienza probably told them about Mr. Fowler's
complaints (Tr. 68). Mr. Vavrek further testified that he did
not speak with Mr. McDowell or Mr. Parshall about some of the
slope conditions, even though they were on the job every day and
no one prevented him from communicating with them (Tr. 99-100).
When asked a direct question as to whether he had at any time
told Mr. Parshall nor Mr. McDowell that Mr. Fowler had made
safety complaints, Mr. Vavrek responded "No" (Tr. 104).
Mr. Fowler confirmed that after the slope area was shutdown,
he continued performing his laborer's duties and continued making
his normal fire boss inspections (Tr. 151, 155). When asked
whether or not Mr. McDowell or Mr. Parshall ever expressed any
displeasure with the manner in which he was making his safety
inspections, Mr. Fowler indicated that on one occasion
Mr. Parshall questioned his absence while he had gone to inspect
several shafts, and that Mr. McDowell discussed the incident
which prompted Mr. McDowell's father-in-law to question whether
Mr. Fowler was doing any work. Shortly thereafter, Mr. Fowler
stated that he had an "encounter" with Mr. McDowell about his
reporting time for work, and they mutually accused each other of
harassment and that Mr. McDowell purportedly stated that he was
receiving "too many 800 phone calls." Mr. Fowler took this to
mean that Mr. McDowell knew that someone was complaining to the
inspectors, and "that I was calling the inspectors." Notwithstanding this alleged conversation, Mr. Fowler confirmed that
after asking Mr. McDowell where he wanted him to test for
methane, he proceeded to make the tests, and there is nothing to
suggest that Mr. McDowell prohibited or otherwise inhibited him
from doing so (Tr. 168).
Mr. Parshall confirmed that he asked Mr. Fowler about his
whereabouts after he had been assigned a company truck and was
away conducting methane checks at some of the shafts.
Mr. Parshall acknowledged that he believed that Mr. Fowler was
spending too much time making his checks, and that his timing
improved after he discussed it with him.
I find nothing unusual
about a job superintendent such as Mr. Parshall raising this
question with one of his employees, and absent any credible

521

evidence to the contrary, I cannot conclude that Mr . Parshall
attempted to inhibit Mr . Fowler from continuing to make his fire
boss checks.
With regard to Mr. Fowler's encounter with Mr. McDowell,
Mr. McDowell's explanation that his father-in-law's comments
about one of his employees caused him some embarrassment, was
reasonable and plausible in the circumstances, and I find nothing
unusual about Mr. McDowell's discussing this with Mr. Fowler.
Indeed, as noted earlier, after this conversation took place,
Mr. Fowler -continued to perform his fire boss duties, and I find
no credible evidence to support any reasonable conclusion that
Mr. McDowell interfered with his duties in this regard. As a
matter of fact, the fire boss records reflect that Mr . Fowler
continued to inspect the shafts well after the closure of the
slope by MSHA, and at least up to May 17, 1988, 6 days before he
was laid off.
When asked for an explanation as to why he said nothing in
his 12 page statement of June 3, 1988, to Mr . Savine about his
alleged complaints made to Mr. Parshall and Mr. McDowell, when
"it was fresh on his mind," Mr. Fowler explained that he "left
things out" of the statement. He conceded that the information
which he omitted from his prior complaint statement to Mr. savine
was a critical part of his claim that he communicated his safety
complaints to Mr. Parshall and Mr. McDowell . Mr. Fowler further
explained that he told Mr. Savine that "I went to management,
management is Jay and Bill" (McDowell and Parshall). I have

closely examined Mr. Fowler's prior statement to Mr. Savine, and
the only reference I find to "management" is Mr. Fowler ' s denial ·
that he complained "to anyone in management" about his complaint
that gas checks were being made by uncertified people (pg. 3,
exhibit C- 3). As noted earlier, Mr. Fowler's statements to
Inspector Savine concerning his safety complaints specifically
state that they \vere made to Mr. Vavrek, Inspector conrad,
Mr. Brienza, and Mr. Laida, and . there are no statements or
inferences that he ever complained to Mr. McDowell or to
Mr. Parshall.
In addition to his prior statement to Inspector savine, I
take note of the fact that in a complaint statement executed by
Mr . Fowler on May 24, 1988, and filed with MSHA's field office,
Mr. Fowler stated that he reported safety violations "to management and the safety department." There are no statements that he
complained to Mr . Parshall or to Mr. McDowell.
Although Mr. Fowler testified that 2 days before the slope
was shutdown, he informed Mr . Parshall and Mr. McDowell about all
of the conditions for which violations were issued by the MSHA
inspectors, he confirmed that he only "mentioned a few of them"
to Mr . McDowell. Further, although Mr. Fowler testified that he
informed Mr . Parshall about the compressor and the use of a

522

gasoline powered grinder and sav! in the slope, and "expressed his
concern" to Mr. Parshall about the lack of self-rescuers, fire
extinguishers, back-up alarms, and oxygen and acetylene tanks,
his prior statement to Inspector Savine, which was made more than
a year before the hearing, when the events were fresh in his
mine, reflect that these "complaints" or "concerns" were made to
Mr. Vavrek, Mr. Brienza, Mr. Laida, or Inspector Conrad, and not
to Mr. Parshall· or to Mr. McDowell.
In view of the foregoing, I consider Mr. Fowler's testimony
that he communicated his safety complaints to Mr. Parshall and
Mr. McDowell, to be inconsistent, contradictory, and less than
credible, particularly in light of his prior critical omissions
when he made his complaint statement to Mr. Savine. I can find
no reasonable basis for mitigating Mr. Fowler's failure to
include a critical element of his case from the prior statement
which he made to Mr. Savine. Mr. Fowler was an experienced miner
who held prior mine foreman's positions, and had knovJledge of
MSHA's safety rules and regulations. He admitted that he was
aware of the fact that Mr. Parshall and Mr. McDowell were the
project managers, and that any safety complaints should logically
be communicated to them.
I find nothing to suggest that
Mr. Fowler was inhibited in any way from communicating his complaints to Mr. Parshall or to Mr. McDowell, or that he was intimidated in any \vay by Mr. McDowell or Mr. Parshall. Having viewed
Mr. Fowler during the course of the hearing, he did not impress
me as a timid individual.
I take note of the ~act that in his posthearing proposed
findings and conclusion ~ .. Mr. Fowler's counsel made several
references concerning Mr. Fowler's safety complaints to "supervisory personnel on the job," including "the newly appointed
safety director, Mr. Vavrek" (proposed findings No. 4, No. 9,
No. 14, No. 15). During a bench colloquy at the hearing, counsel
confirmed that part of the theory of his case is that Mr. Brienza
and Mr. Laida were perceived as part of mine management by the
workforce, and that Mr. Fowler's day-to-day safety complaints
about the alleged unsafe work practices in the workplace, as
distinguished from his fire boss complaints, were brought to the
attention of the persons in the "chain of command who every day,
told him what to do in the work place" and that "on some occasions, he also communicated or believed i t was communicated,
either both, to higher management" (Tr. 205). Counsel further
stated that the respondent was clearly on notice ''of what .our
claim about Arty and Kenny's (Brienza and Laida) relationship is
to this case," and that "the cumulative evidence in this case
will show that management, through Arty and Kenny, through the
entire gestalt of events that occurred, were well aware this man
(Fowler) was a significant source of raising safety complaints"
(Tr. 206-207). In yiew of these arguments, it seems apparent to
me that Mr. Fowler is advancing an argument that since his safety
complaints were communicated to Mr. Brienza and Mr. Laida, the

523

"supervisory personnel" who he believed constituted "mine manageme-nt," the complaints obviously reached, or were communicated to
Mr. Parshall and Mr. McDowell. However, I have rejected this
argument.
After careful consideration of all of the evidence and
testimony in this case with respect to Mr. Fowler's safety cornplaints concerning the slope conditions which ·prornpted the shutdown by MSHA and the issuance of the violations for the cited
conditions in question, I conclude and find that the preponderance of all of the credible testimony and evidence does not
establish that Mr. Fowler made or communicated his safety cornplaints concerning the slope conditions to Mr. Parshall or to
Mr. McDowell, or that these individuals had any knowledge of the
complaints, or had reason to know that Mr. Fowler had registered
complaints to the MSHA inspectors. Although I have found that
Mr. Fowler made complaints about the slope conditions, I conclude
and find that the slope complaints were made to non-management
personnel, g.g., Mr. Brienza, Mr. Laida, possibly to other rank
and file employees, and to Mr. Vavrek, who at the time the slope
was inspected and shutdown by the inspectors, was serving as a
union walkaround man. The evidence establishes that Mr. Vavrek
was appointed the respondent's safety director after the slope
was shutdown, and although one may reasonably assume that a
company safety director is a member of mine management, the
record in this case is devoid of any evidence to establish that
Mr. Vavrek was in fact a part of mine management. I further
conclude and find that while Mr. Vavrek may have told
Mr. Parshall or Mr. McDowell about some of the slope conditions,
he did not inform Mr. Parshall or Mr. McDowell that Mr. Fowler
had made the complaints.
Methane Gas Check Complaints
Mr. Fowler alleges that immediately prior to his lay off on
May 23, 1988, he complained to Mr. Vavrek and to Inspector
Spangler that gas checks were not being made, and that uncertified personnel were making the checks. Mr. Fowler also has
alleged that he was not allowed to perform the gas checks and did
not perform them prior to any work in the shafts. In order to
resolve this issue, a determination must be made as to whether or
not the preponderance of the credible testimony and evidence
establishes with any degree of probative certainty, or by any
reasonably supportable inferences, that Mr. Fowler complained to
Inspector Spangler, that Mr. Spangler inforrned .rnine management
(Parshall or McDowell) that Mr. Fowler had complained, and that
acting on the knowledge that Mr. Fowler had complained,
Mr. McDowell andjor Mr. Parshall retaliated against Mr. Fowler by
laying him off.
Mr. Fowler testified that QDg day before his termination he
informed Mr. Vavrek and Inspector Spangler that the examination

524

of the shaft was not being made when materials were being dumped,
and that Mr . Vavrek informed him that he would look into it.
Mr . Fowler stated that he called Mr . Vavrek at his home that same
evening, and Mr. Vavrek informed him that Mr. McDowell had
referred to him (Fowler) as a "wimp or fat boy or something."
Mr . Fowler also testified that he called state mine inspector
Raoul Vincinelli that same evening and informed him that the
respondent did not allow him .to conduct his shaft inspections,
and that Mr. Vincinelli told him that he would talk to management
and also told him that management told him (Vincinelli) that
people were available to test for methane (Tr. 158). Mr. Fowler
further testified that he spoke with Mr. Vincinelli after he was
laid off, that $arne day or evening, and informed him that management had lied to him and that there were no certified people
working at the mine. The following day, Mr. Vincinelli went to
the mine and shut the mine down, and it was Mr. Fowler's understanding that following this shutdown, Mr. Art Jones made the
methane checks.
Mr. Vavrek te·s tified on direct examination that three days
before Mr. Fowler was terminated, Mr. Fowler spoke with him and
Inspector Spangler and informed them that while work was being
· performed at the slope area he did not make a gas check and that
the respondent was not following the mine sealing plan (Tr. 61).
Mr. Vavrek testified later that this conversatio!) took place .Qng
Q£¥ before Mr. Fowler was laid off (Tr. 64). Mr . Vavrek stated
that following this conversation, he and Inspector Spangler went
to the mine office and spoke with Mr. Hoelle, the LTV engineer
w~o drafted the · sealing plan.
After reviewing the plan,
Mr. Vavrek concluded that the plan was not being followed.
Mr . Vavrek further testified that after reviewing the plan, he
and Inspector Spangler spoke to Mr. McDowell in his office, and
after reviewing the fire boss book, Mr. Spangler found that it
had not been signed. Mr. Vavrek stated that Inspector Spangler
commented that "Terry (Fowler) approached us and said the plan
was not being followed," and that Mr. McDowell became upset,
11
S\vore a little bit," and called Mr . Fowler as a "fat roly-poly."
Mr. Vavrek further testified that "the day before or two days
before" Mr. Fowler's termination, Mr. Spangler made the statement
that "Terry is the one that brought this to our attention" and
that "Terry approached us and we checked into it" (Tr. 85, 86).
During his testimony on the second day of the hearing after
being called in rebuttal by Mr. Fowler, Mr. Vavrek again testified that the conversation with Mr. McDowell took place one day
prior to Mr. Fowler's termination, and that during the conversatio:l, Inspector Spangler stated that "Terry approached us that
the air- -that the gas readings were not being made" (Tr. 642,
643). Mr. Vavrek further stated that Mr. Fowler had also complained to Inspector Spangler about asbestos (Tr. 646).

525

Mr. Hoelle and Inspector Spangler did not testify in these
proceedings. In light of Mr. Vavrek's testimony concerning the
statements purportedly made by Inspector Spangler identifying
Mr. Fowler as the individual who had complained about the gas
checks, the respondent was afforded the opportunity to take the
posthearing deposition of Mr. Spangler, and a contact was made by
the respondent with the appropriate MSHA Solicitor's Office to
make Mr. Spangler available to be deposed. However, Mr. Spangler
suffered a heart attack on September 22, 1989, and his return to
duty was delayed. In view of his physical incapacity and
unavailability to be deposed, the respondent filed a motion
requesting my reconsideration of a ruling made during the hearing
rejecting a prior statement made by Mr. Spangler to Special
Investigator John Savine in the course of his investigation of
Mr. Fowler's discrimination complaint. The motion was granted
over the hearsay objection's of Mr. Fowler's counsel, and the
statement was received and made a part of the record in this
case. Mr. Spangler's statement, which is not signed, and which
reflects that it was made to Mr. Savine by telephone on June 30,
1988, states as follows:
This interview was conducted by telephone. Statement was sent to Conrad to be signed. One morning
while I was inspecting Atlas Services I was told by Jim
Conrad that he had been told of some safety problems at
Atlas. Conrad did not tell me who had made the cornplaints. I checked out what he told me and took the
appropriate action. I never heard management call
Fowler a whimp (sic). Fowler did complain to me about
Samtek people throwing asbestos coated siding off a
building.
I did not observe this . I don't remember
any other complaints made by Fowler .
I never told the
company of any complaints I received about safety.
Respondent argues that Mr. Spangler's statement directly
refutes Mr. Vavrek's testimony, and reflects that Mr. Spangler
did not inform mine management about ariy safety complaints he
received and was never informed who made any safety complaints.
The respondent points out that the only complaint Mr. Spangler
could recall from Mr. Fowler concerned "Samtek people throwing
asbestos coated siding off a building." Respondent concludes
that since Mr. Spangler was not informed as to who was making
safety complaints, he could not have informed mine management of
the source of the complaints. Absent any evidence that management knew that Mr. Fowler had made the complaint, respondent
concludes further that it cannot be inferred that management
retaliated against Mr. Fowler .
I take particular note of the fact that Mr. Fowler does not
argue that his gas check complaint to state Inspector Vincinelli
was known to mine management prior to his lay-off, or that it had
anything to do with his termination. The thrust of Mr. Fowler's

526

case is his assertion that his gas check complaint to MSHA
Inspector Spangler was communicated to Mr . McDowell by Mr . Vavrek
and Mr. Spangler, and that Mr. Spangler's purported comments in
the presence of Mr. McDowell identifying Mr . Fowler as the person
who had complained, motivated Mr. McDowell to lay him off in
retaliation for making the complaint.
I find no credible evidence to support any conclusion that
mine superintendent Parshall was present during the alleged
"meeting" with Mr. McDowell, Mr. Vavrek, and Inspector Spangler.
Nor do I find any credible evidence that Mr. Fowler communicated
his complaint about the gas checks to Mr. Parshall, or that
Mr. Parshall laid him off for making the complaint. Mr. Parshall
testified that Mr. Vincinelli came to the mine the day after
Mr. Fowler was laid off, informed him that the mine had to be
firebossed, and instructed him not to do any further work until
he had a qualified person available to conduct the methane
checks. Mr. Parshall explained that seven or nine individuals
working at the mine had received training for making methane
checks and had papers signed by the instructor who trained them,
but had not as yet received their official cards certifying them
as qualified to make the checks. Under the circumstances, the
required checks were made by Mine Superintendent Art Jones, who
was qualified, and Mr. Vincinelli later accepted the certification "papers" of the other trained individuals . Mr. McDowell
confirmed that after Mr. Fowler's lay off, Mr. Vincinelli
informed him that the individuals who had been trained to make
the methane checks pursuant to MSHA's requirements did not meet
the state certification requirements, and that under these circumstances, he requested Mr. Jones to make the checks.
Mr. Fowler's testimony suggests that he made two telephone
calls to Mr . Vincinelli, one on the evening prior to his termination, and after he had spoken to Mr. Vavrek, and one on the day
or evening after he was terminated. Mr. Fowler's initial testimony reflects that he spoke with Mr . Vincinelli and that
Mr. Vincinelli informed him that he would talk to management
about the matter and also informed him at the same time that
management claimed that it had certified people available to make
the gas checks. I find it difficult to believe that
Mr. Vincinelli would have told Mr. Fowler that he would discuss
the matter with management, and at the same time tell him about
management's explanations to his complaint before he had an
opportunity to discuss the matter with them. When pressed for
the time frame when he spoke with Mr. Vincinelli, Mr. Fowler
stated that "it must have been the next day," which would have
been the day he was laid off. This testimony is consistent with
Mr. Fowler's later testimony that he called Mr. Vincinelli on the
day he was laid off after Mr. Parshall informed him that he was
laid off, and that Mr. Vincinelli went to the mine the following
day and shut the job down because of the unavailability of qualified personnel to fire boss the mine.

527

Mr. Vincinelli was not called to testify in this matter.
The testimony of Mr. Parshall and Mr. McDowell that they discussed the gas check matter with Mr. Vincinelli after
Mr. Fowler's lay off stands unrebutted, and I find it credible
and believable. Mr. Fowler's testimony that he spoke with
Mr. Vincinelli after he was laid off corroborates the testimony
of Mr. Parshall and Mr. McDowell. Further, in the absence of any
evidence to the contrary, I cannot conclude that Mr. Parshall or
Mr. McDowel·l had any knowledge of Mr. Fowler's gas check cornplaints to Mr. Vincinelli prior to Mr. Fowler's lay off, or that
this complaint influenced their decision to lay off Mr. Fowler .
I find no evidence to support Mr. Fowler's assertion that
the "inspection records" confirmed that the purported meeting
with Inspector Spangler, Mr. Vavrek, and Mr. McDowell did in fact
take place. The only mention of any such report was made during
the course of the hearing by Mr . Fowler's counsel during his
cross-examination of Mr. McDowell (Tr. 587-588). The report,
(exhibit C-5), is a memorandum from MSHA Inspectors Newhouse and
Spangler to MSHA's District 2 Manager Donald w. Huntley concerning their inquiry of the alleged PCB dumping incident conducted
on June 1, 1988. The report reflects that Mr. McDowell spoke to
the inspectors about the alleged dumping incident, but it contains absolutely no information concerning the issue of gas
checks or the purported meeting in question.
Further, as noted
in the report, the visit by Inspectors Newhouse and Spangler was
made on June 1, 1988, a week after Mr. Fowler's lay-off. Under
the circumstances, counsel's assertion that the report establishes that the purported meeting with Inspector Spangler was in
fact held a day before, or immediately prior to Mr. Fowler's
lay-off, is unfounded and it is rejected.
During his direct and cross-examination testimony,
Mr. McDowell was asked no questions . concerning the purported
meeting with Inspector Spangler and Mr. Vavrek. Mr. McDowell
testified that he "vaguely" recalled Mr . Spangler as one of the
MSHA inspectors who came to the mine during the slope inspection,
and that he would be "hard pressed" to recognize him in a crowd.
He also stated that he did not spend a lot of time with the
inspectors when they visited the mine {Tr. 603-604).
When called in rebuttal, Mr. McDowell unequivocally denied
that any meeting ever took place with Inspector Spangler and
Mr. Vavrek, and he characterized Mr. Vavrek's testimony to the
contrary as untrue. Mr. McDowell denied that Mr. Spangler and
Mr. Vavrek ever visited his office to discuss the matter of gas
checks, and he denied that he knew or had reason to know that
Mr. Fowler ever complained to any State or Federal inspector that
he was not performing gas checks.

528

Mr. McDowell further testified that. he could not recall ever
receiving any citation for failure to make the required gas
checks. Mr. Fowler's counsel produced a copy of an MSHA citation
issued by Inspector conrad and served on Mr. Parshall on
March 28, 1988, citing a violation of 30 C.F.R. § 77.1713, for
the failure of any certified person to examine the working areas
at the Nos. 1 and 4 shafts, and the supply yard (exhibits C-3 and
C-7). Mr. McDowell did not dispute the authenticity of the
citation, and stated that he did not know that it was issued for
failing to make the methane checks.
With regard to Mr. Fowler's argument in his supplemental
brief that "the t~stimony of the mine superintendent did not
refute the fact that the issue concerning the gas checks was
raised by Mr. Fowler, and simply contradicted Mr. Vavrek's testimony that Mr. Fowler's name was actually mentioned," I take note
of the fact that the respondent's project superintendent William
Parshall gave no testimony concerning the alleged meeting with
Inspector Spangler or the statements attributed to him by
Mr. Vavrek. As noted . earlier, there is no evidence that
Mr. Parshall was present when the Spangler statements were purportedly made. With regard to the testimony of project manager
McDowell, he unequivocally denied that any meeting took place, or
that Mr. Spangler made the statements in question, and he denied
any knowledge of Mr. Fowler's asserted complaint about the gas
checks. Mine superintendent Art Jones, the individual who conducted the gas checks after the job was shutdown by
Mr. Vincinelli, did not testify in this case.
In his prior statement of June 3, 1988, to MSHA special
investigator Savine in the course of the investigation of . his
complaint, Mr. Fowler stated that he complained to Mr. Vavrek on
May 19 and 20, 1988, 3 or 4 days prior to nis lay off on May 23,
1988, about gas checks being made by uncertified people.
Mr. Fowler characterized Mr. Vavrek as the "safety man (union)"
and "walkaround union man." Mr. Fowler stated that he "thought"
that Mr. Vavrek told Mr. McDowell about his complaint and that
Mr. Vavrek informed him that Mr. McDowell had referred to him as
a "wimp" for making the complaint. Mr. Fowler further stated
that Inspector Spangler was present "and should have heard the
comment," and that he did not make his complaint "to anyone in
management."
Mr. Fowler's prior statement that he made his gas check
complaint 3 or 4 days before his lay-off, contradicts his hearing
testimony that it was made the day before his termination.
Although -Mr. Vavrek initially testified that the complaint was
made to him and to Mr. Spangler 3 days before Mr. Fowler was
terminated, he later testified that the complaint was made the
day before.
In his prior statement, Mr. Fowler does not state
that he also complained to ~r. Spangler. He simply states that
Mr. Spangler was present when Mr. McDowell referred to him as a

529

"wimp" for making the complaint, and that Mr. Spangler should
have heard the comment. The prior statement contains no information concerning the statements attributed to Mr. Spangler by
Mr. Vavrek with respect to Mr. Fowler's name being mentioned by
Mr. Spangler.
There is no evidence that the mine closure which occurred a
day after Mr. Fowler's alleged complaint about the. gas checks
resulted fro~ any enforcement action by MSHA or its inspectors.
The evidence reflects that . the mine was shutdown by State Inspector Vincinelli on the basis of the complaint made to him by
Mr. Fowler after he was laid off. Further, there is 110 evidence
that Mr. Vincinelli informed Mr. Parshall or Mr. McDm.; ell about
the complaint made by Mr . FO\·ller, or that they were aware of it.
There is no evidence in this case that Inspector Spangler
took any enforcement action or issued any citations as a result
of the alleged complaint by Mr. Fowler and meeting with
Mr . McDowell a day before Mr. Fowler's termination. Although
Mr . Vavrek testified that after reviewing the fire boss book
during this meeting, Mr. Spangler found that i t had not been
signed, there is no evidence that Mr. Spangler issued a citation
as a result of this finding.
The only evidence of record concerning the respondent's failure to record the results of inspections of its work areas in the mine books, and the failure by
certified persons to examine the active work areas, are two
citations issued by MSHA Inspector James Conrad on March 24 and
25, 1988, 2-months prior to Mr . Fowler's lay-off (exhibits C-3
and C-7). Mr. Spangler's involvement with these citations concerned the modifications of the citations extending the abatement
times for correcting the cited conditions, and his termination of
the citations on March 30, 1988, after finding that the required
examinations were being conducted by a certified person and that
the results of the examinations were being recorded in the mine
book.
I take note of the fact MSHA's mandatory safety standard
30 C.F.R. § 77.1713, requires daily on-shift examinations of the
active surface working areas of a mine by certified persons
designated by the mine operator, and the examiner is required to
report any hazardous conditions noted to the operator. Section
77.1901, requires preshift and onshift examinations of slope and
shaft areas by a certified person, including tests for methane
and oxygen deficiency. Both of the prior citations issued by
Inspector Conrad were issued for a violation of section 77.1713,
and none of the remaining citations which were issued during
MSHA's slope inspection of late March, 1988, were for violations
of section 77.1901. Given the fact that Mr. Spangler had participated in the inspections and shutdown of the slope area in
March, 1988, and that a number of citations were issued, including the two citations concerning inspections by qualified mine
examiners, I believe that one may reasonably conclude that

530

Mr. Spangler would have issued additional citations, particularly
for repeat offenses, as a result of the complaint which
Mr. Fowler contends he made to Mr. Spangler immediately before
his lay-off. The absence of any evidence that Mr. Spangler took
any enforcement action on the basis of Mr. Fowler's alleged
complaint raise serious doubts in my mind that Mr. Fowler ever
complained to Mr. Spangler about the gas checks.
Mr. Vavrek's testimony reflects three different versions of
the statement purportedly made by Inspector Spangler in
Mr. McDowell's presence during the alleged meeting in question.
The purported statements are as follows:
"Terry approached us
and said the plan was not being followed;" "Terry is the one that
brought this to our attention. Terry approached us and we
checked into in;" and "Terry approached us that the air • . • that
the gas readings were not being made." Mr. Vavrek's testimony
also reflects inconsistent statements as to when the statements
were made, ranging from 1 to 2 or 3-days prior to Mr. Fowler's
lay off. As previously noted, Mr. Fowler's prior statement to
Special Investigator Savine over a year prior to the hearing that
he complained about the gas checks to Mr. Vavrek 3 or 4-days
prior to his lay off, contradicts his hearing testimony that he
made ~he complaint 1 day before his lay off. These inconsistencies and contradictions raise doubts with me about the credibility of Mr. Vavrek and Mr. Fowler.
With regard to the hearsay statement of Inspector Spangler,
the Commission has held that hearsay is admissible in Mine Act
proceedings so long as it is material and relevant, Secretary of
Labor v. Kenny_Richardso~, 3 FMSHRC 8, 12 n. 7 (January 1981),
aff'd 689 F.2d 632 (6th Cir. 1982), cert. denied, 77 L.Ed.2d 299
(1983); Mid-Continent Resources, Inc., 6 FMSHRC 1132, 1135-1137
(May 1984).
Although Mr. Spangler's statement is not signed, it was made
to Inspector Savine .during his investigation of Mr. Fowler's
complaint and i t is part of MSHA's official report of investigation made by Mr. savine. Although the entire report was rejected
by me in the course of the hearing, Mr. Spangler's statement has
been admitted , and I find it relevant and material to the issue
raised by Mr . Vavrek's testimony that Mr. Spangler revealed a
confidence and informed Mr. McDowell that Mr. Fowler complained
to him about the gas checks not being made by certified or qualified personnel.
Mr. Spangler states that in the course of his inspection of
the respondent, Inspector Conrad informed him that he (Conrad)
was told of "some safety problems at Atlas," but did not tell him
who had complained. Although Mr . Spangler does not state when
this inspection took place, and simply states that it was "one
morning," I find the statement to be otherwise reliable since it
~ends credence to Mr. Fowler's testimony that he telephoned

531

Mr. Conrad about some safety complaints at the mine site where
the respondent was performing work. The -statement also corroborates Mr. Fowler's prior statement to Mr. Savine that he had
complained to Mr. Conr~d about the slope conditions.
Mr. Spangler denied that he ever informed the respondent of
any safety complaints that he received, denied that he ever heard
management call Mr. Fowler "a whimp," (sic) and he stated that
the only complaint that he could recall receiving from Mr. Fowler
was about "Sanitek people throwing asbestos coated siding off a
building." This statement lends credence to Mr. Vavrek's testimony on direct that there was a "problem on a few occasions" with
asbestos being thrown off the side of a building (Tr. 51). Under
all of these circumstances, I find Mr. Spangler's statement to be
reliable and trustworthy, and have no basis for concluding that
· he would be less than truthful.
Mr. Spangler's statement that the only complaint he could
recall made to him by Mr. Fowler concerned asbestos 'directly
refutes Mr. Vavrek's testimony that while he and Mr. Spangler
were together at the site, Mr. Fowler informed them that he was
not making his gas checks while work was being performed in the
slope work area. It also refutes Mr. Fowler's testimony that he
informed Mr. Spangler about this matter at the time he complained
to Mr . Vavrek, and that Mr. Spangler "was standing right with"
Mr . Vavrek when he told him (Tr. 160).
As noted earlier, in his prior statement to Mr . Savine,
Mr. Fowler, on two occasions, stated that he had made his gas
check complaint to Mr. Vavrek and did not complain to management
(exhibit, pgs. 3 and 8). Mr. Fowler did not state that the
complaint was also made to Mr. Spangler, and at page 4 of his
prior statement, Mr. Fowler suggests that Mr. Vavrek may have ·
told Mr. McDowell about his complaint. Further, Mr. Fowler's
prior statement does not even suggest that Mr . Spangler may have
overheard his complaint to Mr. Vavrek, and it only suggests that
Mr. Spangler may have overheard Mr. McDowell's alleged disparaging remark about Mr. Fowler. Since there is no evidence that
Mr. McDowell was present when Mr. Fowler may have first
appr9ached Mr. Vavrek and Mr. Spangler, any such remark, if made,
would have been forthcoming at a later time. Mr. Spangler denied
that he ever heard such a remark.
After careful review of all of the testimony and evidence,
including Mr. Spangler's statement, which I find reliable and
probative, I find that it is more credible and believable than
the testimony of Mr. Vavrek and Mr . Fowler. Mr. Spangler's
denial that he ever informed mine management about the source of
any safety complaints is consistent with MSHA's long standing
policy that prohibits an inspector from revealing the source of
any safety complaints. I find no evidence to suggest that

532

Mr. Spangler was other than a disinterested party while conducting his inspections, and Mr. Fowler conceded that with respect to
the prior slope inspection which included Mr. Spangler and
Mr. Conrad among the inspectors who came to the mine during that
visit, he had no reason to believe that any of the inspectors may
have informed management about the source of those complaints.
Indeed, Mr. Fowler testified that he requested Inspector Conrad
not to reveal his name, and Mr. Spangler's statement that
Mr. Conrad did not tell him who had made the telephone complaints
would seem to indicate that Mr. Conrad maintained the confidentiality of the source of the complaints even from his fellow
inspector.
Mr. Parshall's unrebutted and credible testimony reflects
that when he inquired of Inspector Newhouse as to who may have
complained about the slope conditions, Mr. Newhouse informed him
that the source of any complaint is confidential and could not be
revealed.
Further, during the course of MSHA's inquiry into the
alleged PCB dumping incident, the employees were interviewed in
private, their names were not solicited or given, and they were
informed by the inspectors (Newhouse and Spangler) that any
information given with respect to that incident would be maintained in strict confidence.
Under all of the aforementioned circumstances, I find it
difficult to believe that Inspector Spangler would have revealed
a confidence by identifying Mr. Fowler as the source of the
complaint in the presence of Mr. McDowell, or informing
Mr. McDowell directly that Mr. Fowler made the complaint. Such a
serious breach of confidentiality would have been markedly inconsistent with the inspectors• investigative procedures, and would
have undoubtedly exposed Mr. Spangler to disciplinary action by
his superiors. Further, given the different versions of the
statements purportedly made by Mr. Spangler, as reflected by
Mr. Vavrek's testimony, and the inconsistent and contradictory
testimony of Mr. Vavrek, as well as Mr. Fowler, with respect to
the time frame of the purported meeting when the statements were
allegedly made by Mr. Spangler, I find Mr. Vavrek and Mr. Fowler
to be less than credible witnesses, and I do not believe their
testimony.
In view of the foregoing, I conclude and find that the
purported meeting with Mr. McDowell did not take place as testif1ed to by Mr. Vavrek.
I find no credible evidence to support
any conclusion that Mr. Fowler complained to Inspector Spangler
about the gas check matter, or that Mr. Spangler informed
Mr. McDowell that Mr. Fowler was the source of the complaint.
Although Mr. Fowler may have complained to Mr. Vavrek about the
matter, I find no credible evidence to support any conclusion
that Mr. Vavrek informed Mr. McDowell about the matter prior
Mr. Fowler's lay off, or that he informed Mr. McDowell that
Mr. Fowler was the source of the complaint.

533

I find no credible evidence to support any conclusion that
mine management ever prevented Mr. Fowler . from conducting his
required examinations. I also find no credible evidence of any
disparate or hostile treatment of Mr. Fowler by the respondent.
As a matter of fact, after the conversations with Mr. Parshall
and Mr. McDowell concerning his long absences and the comments by
Mr. Stout concerning his work, Mr. Fowler was allowed to resume
his normal examination duties and the examination records
(exhibit R-1) reflect that Mr. Fowler examined the shafts and
slope work areas and made his examination entries, from
February 18, 1988, to May 17, 1988. Although there is some
testimony that Mr. McDowell on occasion may have cursed Mr. Bair,
I find no credible evidence that Mr·. Parshall or Mr. McDowell
ever cursed Mr. Fowler or exhibited any open hostility towards
him because of his fire boss duties.
With regard to Mr. Fowler's complaints about the slope
conditions, as previously noted, these complaints were made
2-months prior to Mr. Fowler's lay off on May 23, 1988, and I
have concluded that the complaints were not communicated to
Mr. McDowell or to Mr. Parshall, and that they had no knowledge
that Mr. Fowler was the source of the complaint prior to his lay
off. With regard to Mr. Fowler's alleged complaint about the gas
checks, I find no credible evidence to support any conclusion,
either directly, or by inference, that Mr. Fowler communicated
his complaint to Mr. McDowell or to Mr. Parshall, or that they
knew, or had reason to know, prior to the lay off, that
Mr. Fowler was the source of the complaint. Under these circu~
stances, I cannot conclude that in making their decision to lay
off Mr. Fowler, Mr. McDowell or Mr. Parshall were motivated by
his complaint, or that the lay off decision was made to retaliate
against Mr. Fowler for making the complaint. In short, I conclude and find that Mr. Fowler has failed to establish a prima
facie case of illegal discrimination on the part of the respondent, and that his complaint should be dismissed.
ORDER
In view of the foregoing findings and conclusions, and on
the basis of a preponderance of all of the credible testimony and
evidence adduced in these proceedings, I conclude and find that
the complainants have failed to establish a violation of section
105(c) of the Act. Accordingly, their complaints ARE DISMISSED,
and their claims for relief ARE DENIED.

/~~/K~
~eorgeAr. Koutras
Administrative Law Judge

534

Distribution:
Thomas Whitney Rodd, Esq., 264 High Street, Morgantown, WV 26505
(Certified Mail)
Robert L. Ceisler, Esq., CEISLER RICHMAN SMITH, 200 Washington
Trust Building, Washington, PA 15301 (Certified Mail)
/fb

535

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, l Oth FLOOR5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041 -

MAR 1'61990
CONTEST PROCEEDINGS

ARCH OF KENTUCKY , INC .,
· contestant
v•.

Docket No . KENT 89-161 - R
Citation No. 3172128; 4/20/89

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

Docket No. KENT 89-163-R
Citation No. 3172130; 4/20/89
High Splint No. 2
Mine ID 15-16084
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 90-39
A. C . No. 15-16084-03519

v.
High Splint No. 2 Mine
ARCH OF KENTUCKY, INC.,
Respondent
DECISION
Appearances:

Edward H. Fitch , Esq., Office of the Solicitor,
U.S. Department of Labor , Arlington , VA,
for the Secretary;
Michael T . Heenan , Esq. , Smith Heenan, & Althen,
Washington , DC , for the Respondent.

Before:

Judge Fauver

Arch of Kentucky , Inc., ·seeks to vacate two citations, and
the Secretary of Labor see k s civil penalties for the two
violations they allege , under § 105(d) the Federal Mine Safety
and Health Act of 1977 , 30 U.S.C . § 801 et ~·
The parties hava filed cross- motions for summary decision ,
based upon a stipulated record.
The citations were issued during the investigation of a
fatal accident that occurred at Arch ' s High Splint No . 2 Mine on
April 18 , 1989 .

536

The mine produces coal two shifts a day, with maintenance on
a third shift, five days a week. It employs 77 underground
employees and three surface employees.
On April 18, 1989, Maintenance Foreman David L. Funk . and
his crew were trying to repai~ a continuous mining machine, which
had broken down on the previous shift.
At the time of the accident, the foreman and his crew were
attempting to repair the right side planetary gear box on the
continuous miner. The repair required removal of the planetary
gear box, which could not be dropped out of the continuous miner
without first removing the pinion shaft that extends through the
planetary. The pinion shaft drives the tram chain sprocket,
which turns the chain that propels the continuous miner as it
travels from one place to another underground. ·
Before repairs were started, the continuous miner was taken
out of production, deenergized, jacked up and blocked. The guard
that covers the tram chain during normal operations was swung
open to provide access to the pinion shaft and chain sprocket.
Work to remove the shaft was first tried by inserting a roof
bolt into the end of the shaft and trying to hammer the shaft out
using a 16 lb sledge hammer. The parties have stipulated that
this effort although unsuccessful was "consistent with
established maintenance procedure." Another accepted procedure
"would have been to use a cutting torch to cut the pinion shaft
and thereby free the planetary gear." However, as stipulated by
the parties, Mr. Funk decided to avoid a cutting job. Instead,
he used a method that was "not a maintenance procedure that is
recommended or otherwise addressed by the manufacturer" and
"which proved to be completely unsafe... Stipulations, 1{ 13. The
method he used is described as follows in the MSHA Accident
Investigation Report (which the parties stipulate "correctly
states the facts of this case 11 (Stipulations,! 5)):
Funk decided to try and shear the splines off the shaft
by rotating the shaft back and forth alternately using the
tram motor with sprockets and tram chain attached. Funk
instructed the crew to stand away from the miner in the
event something went wrong. Funk told the miner operator
to tram the motor back and forth.
After approximately 15 or
20 times, the tram chain broke, hurling a piece of chain
(connecting link) approximately 12 feet, striking Funk
(victim) in the right side of his neck, s~vering an artery,
causing profuse bleeding from the wound.
~r. Funk died before reaching the hospital.
The MSHA
Accident Investigation Report also states the following findings
of "Physical Factors" involved in the accident:

1.

Prior to performing

repai~

537

work on the final

drive assembly , the electrical power was not removed
from the control circuit of the Joy 14CM5 continuous
miner , Serial Number JM 2915.
·
2 . The planetary and transmission sprockets
were not completely installed on the shafts and
secured with the retaining plates. The splines
on the planetary drive shaft were fouled , not allowing
the sorocket to be fully seated . The tram chain was
installed . around the sprockets , misaligned by
approximately one ( 1 ) i nch.
3 . The planetary shaft was being removed by
wringing the shaft from the pinion gear using the force
applied to the sprocket , via the traction motor and
tram chain .
4. The resultant stresses sheared a pin from
the back plate of a connecting link on the Whitney 200H
roller chain . Part of the connecting link was propelled
approximately twelve (12) feet to where it struck the
victim, causing severe trauma to the right side of the
victim's neck.
5. The guard covering the tram chain and
sprockets had not been replaced before energizing the
traction motor.
DISCUSSION
Citation No. 3172128 charges a violation of 30 C.F . R.
§ 75 . 1725{c), which provides:

(c) Repairs or maintenance shall not be performed on
machinery until the power is off . and the machinery is
blocked against motion , except where machinery motion is
necessary to make adjustments .
Citation No. 3172130 charges a violation of§ 75.1722(c) ,
which provides :
(c) Except when testing the machinery, guards shall
be securely in place while machinery is being operated.
Arch contends that the exceptions to both safety standards
applied .
It contends that Mr. Funk was using the machinery ' s motion
to "adjust" the pinion shaft and therefore there was no violation
of§ 75.1725(c). It contends that the guard was not secured
because Mr. Funk was "testing" whether his method o£ trying to
remove the pinion shaft would work and therefore there was no
violation of§ 75.1722(c).
538.

The Secretary contends that Mr. Funk used an unsafe method
of trying to strip the pinion shaft from the planetary gear and
such method had nothing to do with "making adjustments" or
"testing" equipment within the meaning of the exceptions to the
two safety standards.
The facts indicate that Mr. Funk tried to take a shortcut
"which proved to be completely unsafe" (Stipulation, ~ 13). He
chose a dangerous practice that is not sanctioned either as
making machine "adjustments" or as "testing" machinery within the
meaning of§ 75.1725(c) or§ 75.1722(c). A continuous miner is
not des·igned to shear the splines from the planetary shaft by
using the torque of the tram motors. Attempting to use it for
such purpose did not qualify as an "adjustment" or "testing"
exception to the cited safety standards.
Accordingly, the stipulated facts establish a violation of
§ 75.1725(c) as alleged in Citation No. 3172128 and a violation
of§ 75.1722()c) as alleged in Citation No. 3172130.
The foreman was highly negligent in endangering himself and
his crew by using an unsafe and highly dangerous practice.
Compliance with the cited safety standards would have prevented
this fatality.
The foreman's negligence is · imputed to the mine
operator. The gravity of each violation was very high. The
reliable evidence amply sustains the inspector's findings that
the violations were of a "significant and substantial" nature.
Considering all the criteria for a civil penalty in§ llO(i)
of the Act, I find that a penalty of $3,000 is appropriate for
the violation of§ 75.1725(c) and a penalty of $8,000 is
appropriate for the violation of§ 75.1722(c).
CONCLUSIONS OF LAW
1.

The judge has jurisdiction in these proceedings.

2. The Secretary of Labor is entitled to summary decision
as a matter of law.
3. Arch of Kentucky, Inc., violated the safety standards as
alleged in Citation Nos. 3172128 and 3172130.
ORDER
WHEREFORE IT IS ORDERED that:

1.

Arch of Kentucky, Inc's motion for summary decision is

DENIED.
2. The Secretary of Labor's motion for summary decision is
GRANTED.

.539

3.

Citations Nos. 3172128 and 3172130 are AFFIRMED .

4. The contest actions in Docket Nos. KENT 89-161-R and
KENT 89-163-R are DISMISSED.
5. Arch of Kentucky, Inc., shall pay the above-assessed
civil penalty of $11,000 within 30 days of this Decision.

IIJ;/J.~
7~v~
William Fauver
Administrative Law Judge
Distribution:
Michael T. Heenan, Esq., William D. Florman, Esq., Smith, Heenan
& Althen, 1110 Vermont Avenue, N. W., Suite 400, Washington, D.C.
20005 (Certified Mail)
Edward H. Fitch, Esq., Office of the Solicitor, u.s. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)

iz

540

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER. CO 80204

MAR 191990 .
SECRETARY OF LABOR,
MINE SAFETY AND ·HEALTH
ADMINIS'rRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 89-16 - M
A. C . No. 04-04780 - 05511

v.

Docket No . WEST 89-17-M
A.C. No. 04-04780-05512

CHANNEL & BASIN RECLAMATION,
Respondent

Hansen Darn Plant
DF.CISION

Appearances:

John c. Nangle , Esq., Office of the Solicitor,
u.s . Department of Labor, Los Angeles , California ,
for Petitioner;
Richard M. Atkinson, Esq., Ontario , California,
for Respondent.

Before:

Judge Lasher

Upon motion for approval of a proposed settlement of the
22 violations involved in these 2 dockets and the same appearing
proper and fully supported in the record, the settlement is
approved and the penalties agreed to by the parties are here
assessed:
Citation
03068926
03068933
03073526
03291621
03291622
03291623
03291624
03291627
03291628
03291629
03291631
03291632
03291633
03291634
03291635
03291636

Proposed
Penalty
$

20.00
294.00
500.00
350 . 00
241.00
350.00
20.00
227.00
294.00
350 . 00
20.00
20.00
20.00
350.00
350.00
20.00

541

Settlement
Amount
$

20.00
20.00
375.00
262.00
193.00
262.00
20.00
20 . 00
235 . 00
20.00
20.00
20.00
20 . 00
300.00
300 . 00
20 . 00

03291637
03291638
03291639
03291641
03291642
03291644
Total

20.00
392.00
294 .00
20 . 00
350.00
840.00

20.00
355.00
294.00
20.00
350.00
630.00

$5,342 . 00

$3,776.00

Respondent, if it has not previously done so, is ordered to
pay to the Secretary of Labor on or before May 10, 1990, the sum
of $3,776.00.

.1Jfl-4h~-/ d · ~,a-;,.f;f . -·
•

"

_,.;

1

Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:
John c. Nangle, Esq., Office of the Solicitor, u.s. Department
of Labor, Room 3247 Federal Building, 300 North Los Angeles
Street, Los Angeles, CA 90012 (Certified Mail>
Richard M. Atkinson, Esq., 1428 South Grove, Suite B, Ontario,
CA 91761 (Certified Mail)
/ot

542

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

.MAR 19 199.0
SECRETARY OF LABOR ,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA) ,
on behalf of
LEONARD E. EDWARDS ,
Compla i nant

DISCRIMINATION PROCEEDI NG

.
..

Docket No . PENN 90-8-D
P I TT CD 88-1 7
Greenwich c o al No. 2

v.
ROCHESTER & PITTSBURGH
COAL COMPANY ,
Respondent

:

ORDER OF DISMISSAL
Before:

Judge Melick

Complainant requests approval to withdraw her /complaint
in the captioned case a nd the individual Complaina t ,
Mr . Edwards , has filed h i s consent to such withdr 'al . Under
the circumstances herein , per
on to withdraw ·s g r anted.
29 C. F . R . § 2700 . 11. This c
therefore dism ssed .

rative Law
Di stribution:
Linda M. Henry , Esq., Off i ce of
Solici t or, 1 .s.
Department of Labor , Room 14480 Ga eway Buildirtg , 3535 Market
Street , Ph i ladelphia , PA 19104 ( ertified Mail>
Joseph A. Yuhas, Esq ., Mr . William Shaner , Safety Chairman ,
Rochester & Pittsburg h Coal Company , P. O. Box 367 , Ebensbur g ,
PA 15931 (Cert i fied .Mail)
nt

543

--

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

22041

MAR 191990
ARCH OF KENTUCKY, INC.,
Contestant

v.

CONTEST PROCEEDINGS

.

Docket No. KENT 89-176-R
Order No. 3174493; 5/8/89

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

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

v.

.

..

Docket No. KENT 89-177-R
Citation No. 3174494; 5/8/89
Docket No. KENT 89-178-R
Citation No. 3174495; 5/9/89

.
.:

Mine No. 37

:

Mine ID 15-14670

.

CIVIL PENALTY PROCEEDING
Docket No . KENT 90-48
A. C. No. 15-04670-03600

.
:

Mine No. 37

ARCH OF KENTUCKY, INC.,
Respondent
DECISION
Appearances:

Tina Gorman, Esq., and Edward Fitch, Esq., Office
of the Solicitor, U.S. Department of Labor,
Arlington, VA, for the Secretary;
Michael T. Heenan, Esq., and C. Gregory Ruffennach,
Esq., Smith, Heenan, & Althen, Washington, DC,
for the Respondent.

Before:

Judge Fauver

The Company seeks to vacate a withdrawal order and two
citations issued by the Secretary, and the Secretary seeks civil
penalties for the two alleged violations, under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. At the
hearing, the Company moved to withdraw its contest of the
withdrawal order.
That motion is granted, and Docket No. KENT
89-176-R will be dismissed.
These cases focus on the meaning of the April 20 amendment
to the Company's roof control plan.
The pivotal issue is whether
544

the amendment required remote-control shearer operators to
station themselves outside ·the area between Shields 85 and 104
when the shearer was cutting in that area. The Secretary
contends they had to stay outside the area. The Company contends
they could stand anywhere in the walkway between Shields 85 and
104.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following Findings of Fact
and further findings in the Discussion below:
FINDINGS OF FACTS
1. On April 12, 1989, a coal outburst occurred on the
tailgate side of the 004 Section of the R-9 Longwall Panel at
Arch of Kentucky's No. 37 Mine. This was the Company's first
experience with a coal outburst at the the No. 37 Mine.
The R-9 Longwall Panel
2. The R-9 Longwall Panel is a standard longwall unit,
developed by advancing two parallel sets of entries about 500
feet apart into a block of coal. After the entries penetrated
approximately 7400 feet, they were connected by a set of
perpendicular entries in which a longwall mining face was
established. The key components at the longwall face are a set
of lon~wall shields, which support the roof while the coal is
being mined, and a shearing machine (in this case a Mitsui Trojan
700 Shearer), which moves back and forth across the face to mine
the coal.
3. The longwall shields are chock-shields, which have roof
support legs in the front, called props, and a cover in the back
to protect from falling gob. Each shield is about 5 feet wide
and has two sets of props which support a canopy that presses
against the roof. The area between the front two props and the
back of the shield serves as a walkway for the longwall crew
members and permits them to travel along the longwall face with
overhead protection from the canopy, lateral protection from the
gob, and partial lateral protection from the face. The shields
are attached to the pan line (in which the coal conveyer
operates) by hydraulic cylinders, which pull the shields closer
to the face and push the pan line closer to the face as mining
continues.
4. After the shearer mines a portion of the face, propmen
advance the shields toward the face.
The canopy of each shield
is lowered slightly from the roof. A positioning cylinder pulls
the shield toward the face and simultaneously pushes the conveyor
to the face. After this . repositioning, the canopy is again
raised and pressed against the roof. The shields on the 004

545

Longwall are numbered sequentially from No. 1 at the headgate to
No. 104 at the tailgate.
5. The l-ii tsui Trojan 700 Shearer has two cutting wheels,
either or both of which can be positioned high toward the roof,
low toward the floor or in between depending on how the seam is
to be cut. Each cutting wheel has a cowl that suppresses dust.
6. Depending on the direction the shearer is cutting (i.e.
toward to the ·headgate or toward to the tailgate), one of the
shearer wheels will be leading and one will be following.
Typically, the leading wheel cuts near the roof and the following
wheel cuts near the floor. Since the shearing machine does not
turn around, but only moves back and forth across the face, one
of the cutting wheels is always on the side of the machine closer
to the headgate. This is called the headgate wheel. The
opposite wheel is called the tailgate wheel.
7. The r-ti tsui Trojan 700 Shearer is controlled by two
operators who usually move along with the shearer as it
progresses across the face. Each shearer operator controls one
of the shearer wheels and its cowl. On occasion, propmen serve
as relief shearer operators.
8. The shearer can be controlled either by remote control
or manually. While operating by remote control, the shearer
operator is able to remain in the walkway behind the props a
distance of one or many shields from the shearer. While
operating rnannually, the shearer operator must walk right next to
the machine, inby the ~alkway. Prior to the coal outburst on
April 12, 1989, the general procedure was to operate the leading
shearer \vheel by remote control and to operate the following
shearer wheel manually.
The April 12, 1989, Outburst

9. A coal outburst is not a roof collapse but rather, as
the term implies, it is a sudden bursting of coal from the face.
Coal outbursts are typically the result of the squeezing of
unmined coal between underlying and overlying strata. Such coal
outbursts are also referred to as "mountain bumps" or "bounces."
10. Although it is not exactly clear what factors cause
pressures on the face to increase, there is likely to be an
increase when the roof over mined areas fails to collapse. This
leaves more overhead weight on less ~oal support. The longer the
increased pressure remains on the unmined coal, the greater the
chance for an outburst at the face.
11. In this case, sandstone strata overlying part of the
R-9 Panel was, in retrospect, apparently retarding falls in the
mined area and thereby increasing the pressures on the face.
This, coupled with the unyielding sandstone underneath the shale

546

floor of the section, created the squeezing ·conqitions at the
face.
12. A coal outburst occurred on April 12, 1989. Two miners
were struck by flying coal. Neither man was seriously injured,
and no citations were issued. One of the miners, a pro~nan, was
standing in front of the props near the pan line. The other
miner, the headgate wheel operator, was in the walkway.
13. Due to the force of the coal outburst, the Mitsui
Trojan 700 Shearer was substantially damaged and had to be
removed from the mine for major rebuilding. Solid steel pieces
were twisted and bent. The damage was extensive. The cost of
repairing the shearer and lost production was about $2 1/2
million.
Company Response to the Outburst
14. After the outburst, the Company's longwall safety
coordinator, Dickie Estep, contacted MSHA and the Kentucky
Department of Mines and Minerals. The following morning, April
13, 1989, Bob Blanton, MSHA inspector, informed Dickie Estep that
the longwall .was under a section 103(k) order. After
investigating the outburst, MSH~ did not issue any citations and
the section 103(k) order was terminated.
15. Following the outburst, mine management began to gather
information to help the Company formulate procedures to help
prevent outbursts in the future. The Company contacted the
Bureau of Mines for technical advice, hired Agapidu & Associates,
a consulting firm specializing in longwalls, and contacted a
German expert on longwalls and other mining companies that had
experience with outbursts,including Midcontinent, UP&L and
Cottonwood mines.
MSHA Request For Roof Plan Modifications
by April 28, 1989
16. On April 14, 1989, MSHA requested the Company to modify
its Roof Control Plan to develop "measures to control coal bursts
in areas where the longwall face is penetrating sandstone rolls."
Its letter was in accordance with 30 CFR § 75.220, which calls
for additional measures if unusual hazards are encountered. MSHA
knew that the Company wanted to resume operation of the longwall
as soon as possible in order to alleviate pressure on the face.
The letter requested the Company to subnit plan modifications by
.i\pril 28, 1989.
17. After contacting various experts, the Company began to
formulate a plan to help prevent outbursts and to protect miners
in the event of another outburst. Dan Stickel, the
superintendent of the No. 37 Mine, and John Lozier, the longwall
mining engineer, met to discuss both preventive and protective

547

measures. As Superintendent, Dan Stickel, was responsibile for
final Company decisions affecting the safety of all miners at the
No. 37 Mine.
18. Dan Stickel's contemporaneous notes from the above
meeting outline the specific precautions the Company intended to
take to prevent another outburst and to protect miners. With
regard to protecting miners, his notes stated:
Limit the number of people at the shearer in the
potential bump area. The operators and propmen will
be required to operate the machine remotely and a\-vay
from the machine. Extra precaution will be taken the
last 100 feet at the tailgate. The last 100 feet of
mining at . the tailgate will be done by rernote control
only. Manual operation will not be used. [Tr. 2 at
199-201. 1
19. Following the meeting between Stickel and Lozier,
Lozier drafted a memorandum SWfu~arizing the meeting. The
memorandum. stated that the Company would 11 limit the number of
people at the shearer during the cut on the tailgate 11 and not
allow 11 propmen • • • [to] be in the general area of the shearer."
Jt. Ex. 9.
20.
In the meantime, Dickie Estep kept MSHA apprised of the
status of repairs on the shearer and the date the Company
expected to resume ·rnining. Based on the repair schedule, the
Company planned to resume mining on April 21 or 22, 1989. The
Company was anxious to resume mining to relieve pressures on the
face that were causing it to deteriorate.
In this connection,
MSHA also wanted the Company to start mining to relieve the
pressures on the face.
21. Apart from the process for modification and approval of
the roof control plan, which was not scheduled to be officially
cotnpleted until sometime after April 28, 1989, it was the
Company's intention to implement the safety precautions developed ·
by Stickel and Lozier before resuming production.
The April 20, 1989, Meeting to Discuss
Company Progress in Developing a Plan
22. On April 19, 1989, MSHA Roof Control Specialist Gary
Harris called Dickie Estep to set up a meeting at an MSHA office
to discuss the type of modifications the Company was considering.
The Company believed that the meeting, which was scheduled for
the next day, April 20, 1989, would be the first of several
meetings. The typical procedure for modifying a roof control
plan was to meet \.Yi th MSHA several times and exchange ideas.
With this in mind, and considering that MSHA's letter called for
submission of modifications by April 28, 1989, the Company

548

attended the April 20 meeting without having a written plan ready
to submit for approval .
23. The meeting was at an MSHA office. Company
representatives were Dickie Estep, Dan Stickel , and Mike Lincoln,
who is a geologist . The MSHA representatives included Roof
Control Specialist Gary Harris , Supervisor Tom Hooker, and Ken
Dixon, MSHA Chief of Engineering Services at the District office .
24. The meeting began , as expected , with an exchange of
information and ideas on coal outbursts . MSHA ' s Ken Dixon
relayed his experience with outbursts and recommended certain
options to consider for controlling them.
25. At this point in the meeting, the Company
representatives told MSHA that they had developed a list of
operating procedures to prevent outbursts which they planned to
implement when they resumed mining. Although the Company
representatives had developed safety precautions for immediate
implementation, they explained that they did not have a formal
plan ready to submit: for approval. At the same time, they
advised MSHA that they intended to resume mining on either April
21 or 22 , 1989 . The MSHA representatives replied that to do so
the Company must submit modifications for approval on t hat day,
adding that if the Company did not submit a supplemental plan,
MSHA would reinstate the § 103 (k) order . The Company
representatives suggested that they return to the mine to develop
a plan, but· MSHA insisted that they submit a plan immediately if
they wanted to resume mining as planned .
26 . Concerned about the increasing pressures and
deterioration of the longwall face , the Comp·any representatives
decided to summarize for MSHA the new safety procedures that they
had developed. The Company ' s planned procedure of operating
remotely was mentioned, but was not discussed. Afterwards , Mr.
Dixon told the Co1npany representatives that "those were· the
things that we were looking for , " and Mr . Dixon and the other
MSHA officials said they would leave the room to give the Company
time to draft a plan for submission.
27 . Dickie Estep , Dan Stickel and Mike Lincoln drafted a
plan, based on the notes in Dan Stickel's notebook.
28 . The Company representatives returned to the meeting and
submitted a Supplemental Roof Control Plan to MSHA . The MSHA
representatives reviewed the plan, and made one change , which
clar i.Eied that the plan applied only to the R- 9 Longwall Panel.
There was no additional discuss i on r egarding any other provi sions .
MSHA offered to have the plan . typed in letter form addressed from
the Company to MSHA. This was done , and Dickie Estep signed the
plan. By letter dated the same day, April 20, 1989 , MSHA
approved the plan . The approval was tentative and limited to a
!?eriod of 60 days, during which there was to be an evaluation to

549

determine the Supplemental Plan's contriqution to employee
safety.
29~
Following the meeting, MSHA's Gary Harris discussed the
plan with his supervisor, Frank Strunk. There was no discussion
as to any specifics for remote operations in terms of
"distances," "feet" or other "measurement." Tr. 1 at 56.

The Company's April 20, 1989, Supplemental
Roof Control Plan
30. The Supplemental Roof Control Plan approved by MSHA was
as follows:

April 20, 1989
Mr. Joseph J. Garcia, District Manager
Mine Safety & Health Administration
HC 66, Box 1762
u.s. 25E. South
Barbourville, Kentucky 40906
RE:

Arch of Kentucky, Inc., No. 37 Hina,
I.D . No. 15-04610, Supplement of Roof
Control Plan coal and rock outburst.

Dear Sir:
We request the following procedures be reviewed
and approved to control potential coal and rock
bursts on R-9 Longwall Section when such potential
coal and rock burst conditions are known to exist.
1. Review . geologist's study on R-9 Longwall Panel to
identify bump prone areas such as massive sandstone
roof and mine floor.
2. Modify operating procedures in potential bump
areas by:
A. Minimizing the distance the headgate is in
front of the tailgate.
B. Closely monitor the gob overhanging to evaluate
potential burst/bump conditions.

c.

Monitor face advance rate. Production will
be used to keep the face advancing.

D. Limit the number of people at the shearer in
potential bump area.

550

E.
The operators and propmen will be required to
operate the machine remotely from i85 shield to #104
shield ·.
F. #85 through #104 shields will be advanced as
soon as the full face web is cut.
3. A study shall be conducted by the USBM to develop a
coal and rock burst plan prior to mining on the R-3 Panel.
If you have any questions call me at 848-5431.
Sincerely,

Joe R. Estep
Implementation of the April 20, 1989, Supplemental Plan
31. Before mining resumed, the miners on the 004 Section of
R-9 Longwall Panel were instructed how to operate under the
procedures of the Supplemental Plan. Foreman Ralph Price
recorded his instructions on implementing the plan in a
memorandum.
Jt. Ex. 11. He instructed the miners that, "when
running the shearer at the tail" they would have to "stay in
shields," . "not to get out in front of shields" and "use the radio
[control} for turning the headgate cowl." Jt. Stip. 43, Jt. Ex.
11. The crews on other shifts received similar instructions. On
April 22, 1989, the 004 Section resumed operations. ·
The May 8, 1989, Coal Outburst
32. On May 8, 1989, a second coal outburst occurred. The
outburst was between shields 91 and 101. (As in the case of the
first outburst, this was on the tailgate side of ~he section.)
The tailgate operator, Chuck Dudash, was at the No. 99 shield,
operating the tailgate shearer wheel using remote control. The
headgate operator, John Thompson, was at the No. 91 shield,
operating the headgate shearer wheel using remote control.
Although Thompson was inside the props he was struck by flying
coal and suffered fractured ribs and a shoulder injury. He was
nearly buried by flying coal.
33. After investigating the second outburst, the MSHA
inspector issued two citations. Citation No. 3174494, issued on
May a, 1989, alleges a violation of 30 CFR § 75.220, and states
in part:
The headgate side shearer operator was not
operating the shearer remotely from the No. 85 shield.
The headgate shearer operator was operating the shearer

551

on remot·e control; however, he was stationed at the
No. 91 shield. ~· The approved roof control plan stipulated
in Item 2.E. that the operators and propmen will be
required to operate the machine remotely from the No. 85
shield to No. 104 shield.
34. Citation No. 3174495, issued on May 9, 1989, also
alleges a violation of 30 CFR § 75 .220 , and states in part:
The tailgate side shearer operator was not
operating the shearer remotely from the No. 85 shield.
The tailgate shearer operator was operating the shearer
in possession of the radio control, however, he was
stationed at the No. 99 shield. The 'approved roof
control plan stipulates in item 2.E. that the operator
and prop1nen will be required to operate the machine
remotely from tne No. 85 shield to the No. 104 shield.
35. At the hearing, the Secretary moved to amend Citation
No. 3174495 on the ground that the original intent of the
citation was to allege a violation for failure to position the
tailgate operator at shield 104. The Company opposed the motion.
The motion was granted. As amended, Citation No. 3174495 states,
in pertinent part:
The tailgate side shearer operator was not
operating the shearer remotely from the No. 104 shield.
The tailgate shearer operator was operating the shearer in
possession of the radio control, however, he was stationed
at the No. 99 shield. The approved roof control plan
stipulates in item 2.E. that the operator and propmen
will be required to operate the machine remote from the
No. 85 shield to the No. 104 shield.
Modification of Supplemental Roof Control Plan
After the May 8, 1989, Outburst
36. Following · the May 8, 1989, outburst, MSHA issued an
imminent danger withdrawal order. In order to resume mining the
Company modified the plan, with MSHA approval, to add the
following provision:
While the shearer is cutting anywhere past the
Number 85 shield, no employees will be allowed in the area
except the tailgate shearer operator who will be stationed
at Shield 103 or 104. The operator will be operating the
shearer by remote control through this area from the said
remote locations • • • • [Jt. Ex. 15.]
DISCUSSION WITH FURTHER FINDINGS
On April 12, 1989, the No. 37 mine experienced a coal
outburst in which two men were struck rry flying coal. Neither

552

man was seriously injured, and no citations were issued. As a
result of the outburst, MSHA requested Arch to change its roof
control plan to take into account the potential for further
outbursts. A meeting was held at the MSHA office in
Barbourville, Kentucky, on April 20, 1989, at which MSHA and Arch
representatives discussed proposed changes in the roof control
plan. A Supplemental Roof Control Plan was submitted to MSHA
that day and approved tentatively for 60 days.
A second 011tburst occurred on May 8, 19 89. One man was
seriously injured. The same day, MSHA investigator James Poyner
issued an imminent danger order and one citation for violating
the Supplemental Plan. The following day he issued a second
citation charging a violation of the Supplemental Plan.
This case focuses on the meaning of provision 2.E of the
Supplemental Roof Control Plan, which states:
The operators and propmen will be required
to operate the machine remotely from #85 shield to #104
shield.
The Secretary contends that this ' provision required the
·remote control shearer operators to remain outs ide the area
between Shields 85 and 104 when the shearer was cutting within
such area. The Company contends that the operators could stand
anywhere in the walkway between Shields 85 and 104 while
operating the shearer by remote inside that area.
An analysis of a written document must begin in the first
instance with the specific language. Tennessee Valley Authority
v. Exxon Nuclear Co., Inc., 753 F.2d 493, . 496-97 (6th Cir. 1985)
(contract); Mallard v. u.s. District Court for Southern District
of Iowa, 109 s. Ct. 1814, 1818 (1989) (statute); Bradley v.
Autin, 841 F.2d 1288, 1293 (6th Cir. 1988) (statute). Where the
language is clear and unambiguous, a court must regard it as
conclusive and should not look to other aids of construction.
Tennessee Valley Authority, 753 F. 2d at 496; Bradley 841 F.2d at
129 3.
The express language of the Supplemental Plan provides that
and propmen will be required to operate the machine
remotely from #85 shield to #104 shield." Provision 2.E does not
state that the machine \otill be operated from remote locations at
85 and 104 and not in between. Rather, it states that the
-machine will be "operate[d]. • • remotely from #85 shield to
#104 shield." Thus there is no express requi re1nent for operators
to station themselves at Shield #85 or at Shield #104, or at any
other specified location.
"op~rators

· A written document must be read as a whole; particular
provisions should not be read in isolatio~. u.s. v. Morton, 104
S.Ct. 2749, 467 U.S. 823 (1984) (statute); Washington Metro v.

553

Mergentime Corp., 626 F.2d 959 (D.C. Cir~ 1980) (contract).
Also, different provisions of the same document must be read and
interpreted consistently with each other, avoiding conflicts.
u.s. v. Stauffer Chemical Co., 684 F.2d 1174 (6th Cir. 1982)
aff'd 464 u.s. 165 (statute). In this case, provision 2.E of the
Supplemental Plan must be read in light of the other prov·isions
of the document.
Provisioq 2.D of the Supplemental Plan limits the number of
persons in t ·he potential bump area, that is, between Shields 85
and 104. The provision specifically states:
Limit the number of people at the shearer in
potential bump area.
The Company's intention, which is expressed in this language, was
to limit, not to eliminate, nonessential personnel in the bump
prone area. Tr. 1 at 223, Tr. 2 at 79. The Company believed
that with fewer people in the area of the shearer, the chance of
injury was greatly reduced. Tr. 1 at 220, 221. l/
Had the Company intended to eliminate persons in the area
between Shields 85 and 104, the drafters of the plan would have
used the word "eliminate" instead of "limit... MSHA had the
authority to insist on the word 11 eliminate" or "exclude," but it
did not do so.
The Company's choice of the word "limit" in provision 2.0
cannot be ignored. Effect must be given to each part of a
document to avoid making any word or part meaningless or
superfluous. Reiter v. Sonotone Corp., 99 S.Ct. 2326, 442 u.s.
330 (1979) (statute); Fulps v. City of Springfield, Tenn., 715
F.2d 1088 (6th Cir. 1983) (statute). The Secretary's
interpretation that Section 2.E makes the area between Shields 85
and 104 a "no-man's land" (Secretary's ~rief p. 10) is contrary
to the meaning of provision 2.D.
If accepted, this would make
the word "limit" and the entire provision 2.D superfluous and
meaningless.
Provision 2.E of the Supplemental Plan was intended to
improve the safety of miners.
Prior to the Supplemental Plan,
the lead wheel operator would often operate the machine by

1/ It was the first outburst on April 12, 1989, which prompted
the Cotnpany to limit the number of people at the shearer in the
bump prone area. As a result of the first outburst, a propman,
Larry Cornet, was injured.
Propmen are not essential employees
in the cutting area. The Company believed that by limiting
nonessential persons from the cutting area, such as propmen,
mechanics, and visitors, the likelihood of injury in the event of
a future outburst would be greatly reduced.

554

remote, standing in the walk~ay. The following wheel operator
typically operated the wheel manually, walking immediately along
side the machine and using the controls on the deck of the
machine to adjust the wheel whenever it cut too deep or too
shallow. At the time of the April 12, 1989~ outburst, the
headgate operator was using the manual controls to control the
following wheel. ·
After the Supplemental Plan was adopted, both operators were
required to use the remote control to operate the shearer.
Because the shearer can receive signals from only one remote
control device, it was necessary for the shearer operators to
share the remote control. They would cooperate so that one
operator could control the wheel of the other according to
exchanged signals.
~lthough the April 20 change was intended to reduce the
likelihood of injury, the Co1npany seriously misjudged the dangers
involved. Despite being behind the props, the shearer operato~s
in the walkway in the bump prone area were in peril. 2/ Thus, in
the May 8 coal outburst, one of them was seriously in]ured and ·
nearly buried in flying coal.

The Secretary contends that the Company had a duty to avoid
ambiguity in its roof control plan and to resolve any ambiguity .
in favor of protecting its miners.
She points out that the first
outburst (April 12) did considerable damage to the longwall
shearer. The force of th outburst was substantial, severe
enough to tear up six-incn steel and cover the walkway with 18
inches of coal. Two miners were in the bump prone area and they
were both hit by flying coal.
The Secretary contends that it was
not reasonable for the Company to assert that standing within the
walkway would provide adequate protection from such a potentially
dangerous condition.
She argues that the Company's failure to resolve any
ambiguity it may have discerned in the plan was a significant
contributing factor to the injury sustained in the second
outburst.
She concludes, "whatever the reasons may be for
Arch's misinterpretation of the terms of the roof control plan,
the operator was guilty of a moderate to high degree of
negligence." Secretary's Brief p. 13.

']j

In a bump protle area, the props do not provide the shearer
with adequate protection from flying coal. Each shield
is appro~imately 5 feet wide. The props or legs are 12 inches in
diameter. Thus, every five feet of travelway is protected by
only 2 fee~ of metal.
In other words, miners in the walkway have
only 40% lateral protection from coal flying from the face.
operator~

555

However, the facts, as outlined in the Findings, show that
the Company drafters intended to have the ·plan permit remote
control operators to stay in the walkway between Shields 85 and
104. (It was not an ambiguity to them.) The language of the
April 20 plan did not state otherwise, and one of the key
provisions (2.0) would be meaningless without recognizing the
Company's intention in provision 2.E. It is true that the
Company's April 20 plan permitted a dangerous condition to
continue. The Secretary could have prevented this, but she did
not do so. She finally corrected it, after a second coal
outburst and a serious injury, by issuing an imminent danger
order (which is no longer contested). It was then, and only
then, that the Company came up with a modification to require
that no one be permitted in the area between Shields 85 and 104
while the shearer was cutting in that area.
The later modification may not be applied retroactively to
change the meaning of the Supplemental Roof Control Plan of April
20, 1989. That plan did not require the stationing of shearer
operators outside the area between Shields 85 and 104. It was
therefore not a violation of the plan to operate the shearer by
remote while standing in the walkway between Shields 85 and 104.
CONCLUSIONS OF LAW
1.

The judge has jurisdiction in these proceedings.

2. The Secretary failed to prove a violation as alleged in
Citation No. 3174494.
3. The Secretary failed to prove a violation as alledged in
Citation No. 3174495.
ORDER
WHEREFORE IT IS ORDERED that:
1.

Citation No. 3174494 and 3174495 are VACATED.

2.

Docket No. KENT 89-176-R is DISMISSED.

uJ;.L£.~:... -:r-AMVIA-

William Fauver
Administrative Law Judge

556

Distribution:
Michael T. Heenan, Esq., and C. Gregory. Ruffennach, Esq., Smith,
Heenan & Althen, 1110 Vermont Avenue, N.W., Suite 400,
Washington, D.C. 20005 (Certified Mail)
Tina Gorman, Esq., Edward Fitch, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203 (Certified Mail)
iz

557

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

MAR 211990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 89-210
A.C . No. 15-13469-03711

v.
No. 9 Mine
GREEN RIVER COAL CO., INC.,
Respondent
DECISION
Appearances:

Before:

Thomas A. Grooms, Esq ., Office of the Solicitor,
U.S. Department of Labor , Nashville, Tennessee,
for the Secretary of Labor (Secretary>;
B.R. Paxton, Esq., Central City, Kentucky, for
Green River Coal Co., Inc. (Green River) .

Judge Broderick

STATEMENT OF THE CASE
The Secretary seeks a civil penalty for an alleged violation
of the mandatory safety standard in 30 C.F . R . § 75.511
promulgated under the Federal Mine Safety and Health Act of 1977
(the Act) . Pursuant to notice, th e case was heard in Owensboro,
Kentucky, on January 18, 1990 . Allen L. Head testified on behalf
of the Secretary. Michael McGregor testified on behalf of Green
River. The parties were given the opportunity to file post
hearing briefs. Neither party has filed such a brief. I have
considered the entire record and the contentions of the parties
in making the following decision.
FINDINGS OF FACT
1. At all t i mes pertinent hereto , Green River was the owne r
and operator of an underground coal mine in Hopkins County,
Kentucky, known as the No . 9 Mine .
2. Although the corporate identity did not change, the
management of the No . 9 Mine changed as of November 15, 1988.
3. Green River produces approximately one million tons of
coal per year and has approximately 200 employees. It is a
relatively large operator.

558

4. During the period f r om April 11 , 1987 to November 14,
1988, 869 paid violations were assessed at the subject mine, of
which 705 wer e denominated· signtfican·t and substantial. None of
these violations were of 30 C.F.R. § 75.511 .
5 . During the period from November 15 , 1988 to April 11 ,
1989 , when the mine was under new management, 123 paid violations
were assessed , of whic h 93 were denominated significant and
substantial. None of these violations were of 30 C.F . R.
§ 75.511.
6 . On April 12 , 1989 , on the Number 2 Unit of the subject
mine , a mechanic and a roof bolter were working on a tr~iling
cable for a roof bolter machine. The mechanic had cut open a
perman e nt splice in the cable and was checking the cable for a
fault or ground by inserting the probes of his volt meter into
the power wire s.

7. The disconnecting device at the unit power center , was
not locked out or tagged. The power center was approximately 2~ 0
feet from the trailing cable being worked on , a nd was not visible
from the cable because two 90 degree corners and a ventilation
check curtain separated them. The disconnecting device was lying
on the mine floor in front of the receptacle from which it was
unplu·g ged .

8.
area .

Other disconnecting ·devices and receptacles were in the
These we re attached to two other roof bolting machines.

9 . The powe r center voltage is 4160 volts; 480 volts goes
to the roof bolter cab l e. T~is is considered low voltage.
10 . ~ederal Mine Inspector Allen Head issued a section
107(a) imminen t dang e r closure o r d e r and a section 104(a)
citation because of the condition described in finding of fact
No . 7 .
11 .
In the event that someone had inadvertently put the
powe r on the trailing cable involved , the mechanic could have
bee n ele ctrocuted or severely shocked. Approximately 16 miners
work on the section and others come on the section periodically .
12 . The section foreman was not in the ar e a whe n the
violation was cite d .
13. The mechanic who , after the order and citation were
issued , locked out and tagg e d the disconnecting devic~ told Green
Riv e c ' s saf•=ty manag e r , Michael McGregor , " this isn ' t the fi r st
mine ~e ' ve worked in ." The inspector understood that state ment

559

to mean that the safety manager "was making a big iss~e out of
not l ocking and tagging out , and also that he [the mechanic)
probably had a practice of not locking and tagging out ."
(R.22l
McGregor was asked how he interpreted the mechanic's statement
and he responded:
"Largely, the same way Mr. Head took it ."

(R. 26)
14. Since November 1988, Green River has conducted weekly
safety meetings with all employees. Separate weekly meetings
with top management discuss safety matters. Lock out procedures
are discussed in the weekly safety meetings. The mechanic has an
electrical certification, and therefore is required to undergo a
16 hour retraining program annually .
15. The violation was abated within 3 minutes when the
mechanic locked out and tagged the disconnecting device. ~lso,
Green River's safety manager informed him of the company policy.
The mechanic admitted that he knew of the lock out and tag
policy. He had ·a lock and tag on his person . The following day ,
a meeting was held with all maintenance personnel, and the
company policy on locking out and tagging was reiterated.
REGULATION
30 C.F.R. § 75 . 511 provides as follows:
[STATUTORY PROVISION]
No electrical work shall be performed on low- , medium- ,
or high-voltage distribution circuits or equipment,
except by a qualified person or by a person trained to
perform electrical work and to maintain electrical
equipment under the direct supervision of a qualified
person . Disconnecting devices shall be locked out and
suitably tagged by the persons who perform such work,
except that in cases where locking out is not possible ,
such devices shall be opened and suitably tagged by
such persons. Locks or tags shall be removed only by
the persons who installed them or, i f such persons are
unavailable, by persons authorized by the operator or
his agent.
ISSUES
1. Did Respondent violate the mandatory safety standard
contained in 30 C . F . R . § 75 .511 by performing electrical work on
a trailing cable without locking out and tagging the
disconnecting device to the cable?
2.

If so, what is the proper penalty Eoc the violation?

56o

CONCLUSIONS OF LAW
I

Respondent was subject to the provisions of the Act in the
operation of the subject mine. I have jurisdiction over the
parties and subject matter of this proceeding.
II
Finding of Fact No. 7 establishes a violation of the
standard in question. Green River does not seriously contest the
occurrence of a violation .
III

The violation was very serious, and could have cesulted in
electrocution or serious electrical shock to the mechanic or the
roof bolter, if the power was put .on the cable by the 5ection
foreman or another miner. The occurrence of such an event is not
unlikely, when the disconnecting device is not locked out and
suitably tagged.
IV
The violation resulted from Green River's negligence. Even
though the mechanic had been properly _trained, he had apparently
been involved in prior violations of the standard and was not
adeqaately supervised to make certain that he followed the
regulation .

v
Green River's history of prior violations has improved ander
its new management (45+ violations per month prior to
November 15, 1988; 24+ violations subsequent to that date). I
take that i1nprovement into account, but nevertheless consider the
~ntire history shown in Government's Exhibits 4-A and 4-B .
Secretary v. · Green River Coal Co., 11 FMSHRC 2036 (1989),
Commission Revie·"' denied, November 1989, appeal docketed, No.
89-4133 (oth Cir. December 27, 1989).
VI
Considering the above findings and conclusions in the light ·
of the criteria in section llO<i> of the Act, I conclade that an
appropciate penalty for the violation is $750.

561

ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1 . Order No . 3418284 and Citation No. 3418285 issued
April 12, 1989, are AFFIRMED.

2. Respondent Green River shall, within 30 days of the date
of this decision pay the sum of $750 as a civil penalty for the
violation found herein.
. .,

~

'

-1-t'.,,t,.v...C.5 /!~',.:;,.c.{;, -~ t/"-.,
(/ James A. Broderick
Administrative Law Judge
Distribution:
Thoma3 A. Grooffis, Esq., u.s. Department of Laboc, Office of the
Solicitor, Suite B- 201, 2002 Richard Jones Road, Nashville, TN
37215 (Certified Mail)
B. R. Paxton, Esq., Paxton & Kusch, P.S.C., Green River Coal Co.,
Inc., 213 E. Broad Street, P.O. Box 655, Central City, KY 42330
(Certified Mail)
slk

562

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE lAW JUDGES
2 SKYLINE, lOth FLOOR_
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR 22 1990
SECRETARY OF LA_BOR FOR
ru\105 HICKS,
Complainant

DISCRIMINATION PROCEEDING
Docket No. VA 89-72-D

v.
NORT CD 89-18
COBRA MINING, INC.,
JERRY K. LESTER, and
CARTER MESSER,
Respondents
DECISION
Appearances:

Glenn M. Loos, Esq., Office of the Solicitor,
U. S. Department of Labor, Arlington, Virginia,
for the Secretary;
Kurt J. Pomrenke, Esq., White, Elliott, & Bundy,
Bristol, Virginia, for the Respondents.

Before:

Judge Weisberger

Statement of the Case
On August 22, 1989, the Secretary, on behalf of Amos Hicks,
alleged that the Operator and three named individuals violated
section 105(c)(2) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § Sl5(c)(2) (the Act). · on Se(?tember 19, 1989,
the Secretary filed an Amended Complaint in which it deleted one
of the previously named Respondents, Garnett Sutherland, and
demanded various relief.
Respondents filed an Answer on
September 25, 1989.
Pursuant to Notice, the case was scheduled for Hearing for
December 27-28, 1989. On December 22, 1989, in a telephone
conference call with Counsel for both Parties and the undersigned,
Respondents' Counsel advised that he was ill and sought an
adjournment. Counsel for the Secretary did not object. The case
was rescheduled and subsequently heard ~n Abington, Virginia, on
January 3, 1990. Amos R. Hicks, David Lee Payne, I~ry Lou Ray,
and Douglas Wayne Lester testified for the Secretary. Opie Steven
McKinney, Garnett Sutherland, Danny Osborne, Paul Horn, Carter G.
Messer, 3nd Jarry Keith Lester testified for Respondents.
Findings of Fact and Memorandum of Law were filed by Petitioner
and Respondents on February 28 and March 5, 1990, resoectively.
Reply Briefs were filed by the Secretary and ·Responde~t on
March 15 and 19, 1990, respectively.

563

Findings of Fact and Discussion

I.
As set forth in Goff v. Youghioqheny & Ohio Coal Company
8 FMSHRC 1860 (December 19H6), in order to establish a pr~ma
facie case of discrimination under section 105(c) of the Act, it
is incumbent for the Secretary to establish, not only that the
Complainant engaged in protected activity, and that adverse
action was taken ag~inst him, but that " . • . the adverse action
complained of was motivated in any part by that activity.
Pasula, 2 FMSHRC at 2797-2800: Secretary on behalf of
Robinette v. United Cas.t le Coal Co., 3 ie"'MSHRC 803, 817-18
<April 1981). The operator may rebut the prima facie case by
showing either that no protected activity occurred or that the
adverse action was not motivated in any part by protected
activity.
Robinette 3 FMSHRC at 818 n. 20.
See also Donovan v.
Stafford Constr. co., 732 F.2d 954, 958-59 (D.C. Cir 1984);
Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir 1983) (specifically approving the Commission's Pasula-Robinette test)."
Protected Activities and Adverse Action
Amos Hicks was employed by Respondents as a shuttle car
helper for approximately 2 l/2 years until until he was
discharged May 1989. Prior to his employment by Respondents, he
worked for Respondents' predecessor for 6 years,
Hicks indicated that he complained to his shift foreman
Garnett Sutherland "fairly often" (Tr. 24) that support jacks
were not being set. Mary Lou Ray, a roof bolter on the same
section as Hicks, indicated that she heard Hicks "off and on"
(Tr. 194) complain about jacks not being set. Sutherland indicated that a "few times" Hicks mentioned .that jacks were not set
<Tr. 250). Hicks also indicated that, in riding the man trip to
the section, he complained to Sutherland about loose rock on the
roof.l/ Ray testified that she heard Hicks complain to Sutherland
about-loose rock 2 to 3 times a week.
Sutherland ind~cated that
Hicks told him about loose rock once or twice, and he responded by
stopping the man trip and pulling down the loose rock.
David Lee
Payne, who was the mine superintendent until May 12, 1989, indicated that Hicks had complained to him about the roof on several
occasions.

!1

Paul Horn, a scoop · operator on Hicks' shift, testified
he did not recall Hicks' complaining about loose roc~ on the
top of the ceiling.
I find this testimony not sufficient to
rebut the testimony of Hic~s, Ray, Payne, and Sutherland that
Hicks did in fact bring to the attention of management, the
existence of loose rock on the ceiling.
th~t

564

Hicks further indicated that in the first part of 1989, he
complained to Sutherland that there were two miners in one split
of air, and it was so dusty that he could not see. He also
testified that he complained to Sutherland that there were
pinners working in the return air, and they were not able to see.
He told Sutherland that he would not work in those circumstances.
Hicks also indicated that sometimes he complained to
Su-therland that a ventilation curtain was hung on the wrong side • .
Ray corroborated that Hicks had complained about ventilation
problems. Douglas Wayne Lester, a shuttle car operator with whom
Hicks worked, testified that he and Hicks complained about dust
in the air.
Sutherland did not rebut Hicks' testimony in this
regard, and indicated that Hicks had said that he would not work
in the dusty atmosphere like the pinners did.
Payne indicated
that Hicks did complain to him that he had to run the scoop
through return air.
It was Hicks' testimony that approximately 3 to 4 times a
week, he, along with the miners in the section, would have to
ride a scoop, rather than a man trip from the section to the mine
exit. He indicated that the scoop was crowded, there was not
enough room to lie down, and on one occasion he was ·caught up
against the roof and thrown out. He also indicated that he
complained to Payne about this situation. Ray indicated that she
heard Hicks make the -complaints in this regard on a "consistent
basis" (Tr. 201). Payne indicated that Hicks had voiced these
complaints to him and Sutherland in his (Payne's) presence.
Sutherland, in essence, indicated that Hicks had made complaints
about riding in the scoop.
I conclude, as testified to by Hicks, that he did make statements ~o Sutherland concerning loose rock, improper ventilation,
and improper jack supports.
I also find that Hicks complained to
Payne about roof conditions, and ventilation problems. The
2vidence also establishes that Hicks complained to Payne and
Sutherland with regard to riding in the scoop in lieu of the man
trip.
I find that in bringing these matters to the attention of
management, Hicks was engaged in protected activities.
(See,
Secretary on Behalf or Robinette v. United Castle Coal Co., supra.
Further, the record before me unequivocally establishes that on
May 10, 1989, Hicks was fired, and he thus suffered adverse
action.

II.
Motivation
a.

When Safety Complaints Were Made

Hicks testified on direct examination that he made a complaint to Sutherland aoout safety jacks a week before he was
fired.
Upo~ cross-examination, it was elicited that on

565

October 16, 1989, in answers he gave in. response to interrogatories, he had said that he did not know when these complaints
occurred.
In his testimony, he indicated that, with regard to
when he complained of inadequate jacks "it (the instances when he
made the complaints) happened at different times all the way
through" (Tr. 99).
(Explanatory phrase added).
However,
Sutherland did not specifically rebut Hicks' testimony with
regard to having made a complaint about inadequate jacks the waek
before he was fired.
I thus find , on the basis of Hicks' uncontradicted direct testimony , that a week before his discharge, he had
complained to Sutherland about the failure to use safety jacks.
The weight of the evidence fails to establish that the
balance ot Hicks ' complaints were made within close proximity to
his discharge.
Hicks testified that about a month before he was
fired, he had made complaints to Sutherland about loose rock on
the roof.
He indicated that he again made such a complaint on
May 8, 2 days betore he was fired, and Sutherland told 11im to
·have the man trip stopped , and to pull off the rock. However,
neither Ray nor Lester, who rode the man trip along with Hicks,
corroborated his testimony that he had made a complaint about the
loose rock 2 days before he was fired.
In this regard , it was
Sutherland ' s testimony, in essence , that the incident , in which
the man trap was stopped, and he had Hicks pull down the loose
rock , occurred 1 month prior to his firing and not a few days
prior thereto. Hicks indicated , on direct examination , that he
complained about improper ventilation a week before he was fired.
However , upon cross - examination it was elicited that in his
response to i nterrogatories taken on October 16 , he did not say
that he had made such complaints a week befor~ he was fired.
Hicks indicated that he made complaints with regard to
riding the scoop in April or May , but he did not indicate
specifically when these complaints were made.
However, neither
Ray nor Lester provided any testimony· ~ith regard to the most
racant tima Hicks made such a complaint prior to the time he was
fired.
su·therland indicated that Hicks had complained several
months prior to the firing.
b.

Reaction of Respondents' Managers to Hicks '

Complaints
According to Hicks , when he complained about riding the
scoop, inadequate jacks, and loose rock on the roof , Sutherland
got mad .
Douglas Wayne Lester, a shuttle car operator who worked
with Hicks, indicated that " sometimes, '' Sutherland got angry
about tha safety complaints (Tr . 227) .
Sutherland did not
specifically rebut this testimony of Hicks and Lester.

566

c.

Comolainant ' s Prima Facie Case

Thus , the record indicates that Hi cks made multiple safety
complaints and had voiced complaints about inadequate jacks
week before he was fired .
Also , the weight of the evidence
establishes that Hicks ' foreman, Sutherland , got mad on occasion ,
when presented with Hicks ' complaints .
Thus , I conclude that
there is so~e evidence to support a finding that the firing of
Hicks by Sutherland was based , in some part , on the safety
complaints that Hicks had made.
d.

Affirmative Defense

On May 10, 1989, at approximately 10:00 a . m., Sutherland
informed Hicks and Lester ch~t they should take lunch . 2;
According to Hicks , Sutherland returned 20 minutes later and told
him and Lest~r to return to work.
Both Hicks and Sutherland
indicated that they argued, and that Hicks said to Sutherland
" kiss my a-- . " Sutherland then told Hicks that he was fired .
Although there is evidence that the miners and Sutherland regularly cursed back and forth , Sutharland indicated that he fired
Hicks after the latter made the above statement , because he felt
that Hicks was not joking.~/ The following day Hicks met with
Payne and Sutherland .
According to Payne , who had the authority
to hire and fire , Sutherland explained that he had fired Hicks
because he " bad mouthed him " (Suther l and) ( T r . 148) .
In essence ,
Payne indicated that he told Sutherland to make the decision with
regard to the firing of Hicks.
Payne indicated that he talked to
Jerry Keith Lester, who is a one third owner of Respondent's
operation, and the latter said that the matter of the firing
would be left up to him (Payne) .
Lester indicated that prior to
the firing , Sutherland had complained about Hicks
2; Apparently, it was not unusual for the shuttle operators,
Lester and Hi cks, to taKe lunch other than the noon nour , due to
interruptions in the normal mining cycle .
3; It appears to have been common practice in the mine for
the miners and Sutherland to curse one another .
The only time a
miner had been disciplined or threatened for cursing or talking
oack, was on one instance when Ray , in anger , cursed Sutherland.
Suthe r land then fired Ray , but rescinded this action upon advice
of Payne , and Ray did not miss any work .
Thus, I find that the firing of Hicks by Sutherland for
cursing was not a pretext as argued by Complainant , inasmuch as
Sutherland threatened Hicks the same way he had previousty
threatened Ray .
Although Payne advised Sutherland not to fire
Ray, but supported his decision to fire Hicks, there is no
evidence to establish that Payne in any way was motivated by
Hicks ' safety com9laints .
Indeed, he concurred in many of these
complaints.
567

getting his buggy late to the face , and that Hicks had ma~e smart
remarks in the last few months when he was asked to perform some
tasks .
Lester indicated that he had said it was time to do
something about it, and that he went along with Sutherland's
decision to fire Hicks.
Lester indicated that he did not talk to
Carter G. Messer , who also has a one third ownership in the
operation.
He said that in his conve rs ations with Payne with
regard Hicks , Payne had said that Hicks was always clean even
though he worked in a dirty environment.
Payne indicated that
after the meeting on May 8, 1989, Messer told Hicks that he was
fired and that "we've got to take a stand somewhere and we'll
just leave it at that " (Tr . 151).
According to Payne, after
Messer told Hicks he was fired , Messer said that he wanted to get
~id of Hicks for a long time, but " couldn ' t get anything on him''
(Tr. 152).
Payne indicated that prior to that time, Messer had
never said that he wanted to fire Hicks , and indeed indicated
that the latter was a good buggy man .
Messer denied telling
Payne that he wanted to get rid of Hicks for a long ti~e.
He
indicated that, prior to the firing of Hicks, he did not discuss
with Lester either Hicks or his work habits.
He indicated that
he supported the decision of Sutherland to fire Hicks as he was
100 percent behind his f oreman. According to Messer , Sutherland
never told him that Hicks had made safety complaints .
He was
asked whether he talked to Sutherland with regard to Hicks ' work
habits, and indicated that Sutherland had told him that it takes
Hicks a long time to do things.
I find that at least a week elapsed between Hicks ' complaint
about jacks and loose rock, and his being fired .
It is significant that Hicks did not indicate that Sutherland manifested any
displeasure or anger at the complaint he (Hicks) had made about
loose rock on May 8, 2 days before he was fired.
There is no
evidence that Payne , who according to his testimony had the
responsibility for hiring and firing, ever expressed displeasure
at Hicks for his having made safety cdmplaints.
Also, there is
no evidence that Lester and Messer, who together own two thirds
of Respondent's operation, had , prior to the firing of Hicks, any
knowledge oi the latter's safety complaints.
Moreover , due to
the nature of the words spoken by Hicks to Sutherland, his foraman , and the manner in which they were spoken , I find that a
valid business reason existed for the firing of Hicks.
I find that Sutherland found Hicks deserving of being fired
on May ~0 , for the manner 1n which he talked to him, and that he
woulj have ficed him for this action in any event .
I thus conclude, that Respondanta have established an affirmative defense
that HicKs would hav~ been fired in any event basad on his
unprotectea actlvities ~lone .
Accordingly, it must be concluded
that the Cornplai~t is to be dismissed.
(See, Secretary on behalf
of Pasula v. Consolidation Coal Co., 2 FMSHRC 27B6, at 2799-2800
(October 1980)), rev ' d on other grounds sub . non . Consolidation
Coal Co., v . Marshall, 663 F Znd 1211 (3rd Cir . 1981)) .

568

ORDER
It is hereby ORDERED that the Complaint of Discrimination
filed on August 23, 1989, be DISMISSED .

~~~
Weisberger

.

~vram

Administrative Law Judge
Distribution:
Glann M. Loos, Esq., Office of the Solicitor, U. S. Department of
Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail>
Kurt J. Pomrenke, Esq., Johns. Bundy, Esq., White, Elliott, &
Bundy, P. o. Box 8400, Bristol, VA 24203-8400(Certified Mail)
dcp

569

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280. 1244 SPEER BOULEVARD
DENVER. CO 80204

MAR 271990
SECRETARY OF LABO~,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
JACK WINNINGHOFF,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEST 89-79-D
Black Pine Mine

v.
BLACK PINE MINING COMPANY,
Respondent

.

DECISION APPROVING SETTLEMENT
Before:

Judge Cetti

This proceeding was brought by the Secretary of Labor on
behalf of Jack Winninghoff, under§ 105(c)(2) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seg.,
for certain corrective relief to undo the effects of alleged
discrimination against him, and · for a civil penalty for an
alleged violation of § 105(c) of the Act.
The parties have moved for an order approving their prop osed
settlement, ordering compliance with its terms and for dismissal
of this proceeding.
I have considered the representations and
documentation submitted and I conclude that the proffered settlement is consistent with the criteria in§§ 105(c) and llO(i) of
the Act.
ORDER
WHEREFORE IT IS ORDERED that:
1.

The motion for approval of the settlement is GRANTED.

2. Respondent, Secretary and Complainant shall comply with
all the terms of the settlement agreement.
3. The Secretary withdraws her complaint and does not seek
a civil penalty against respondent for its alleged violation of
Section 105(c) of the Act.

570

4. Respondent shall pay Jack Winninghoff the lump sum of
$14,000 which sum represents payment of all claims, including
lost wages.
5. Subject to full compliance with the agreement, the complaints of the Secretary and Jack Winninghoff will be considered
withdrawn and this proceeding is DISMISSED with prejudice.

F. Cetti

~~

Distribution:
Tina Gorman, Esq., Office of the Solicitor , u.s. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Ann R. Klee, Esq., Thomas C. Means, Esq., Crowell & Moring,
1001 Pennsylvania Avenue, N.W., Washington, D.C. 20004-2505
(Certified Mail)
Gary W. Callahan, Esq., Black Pine Mining Company, c/o Western
Gold Exploration and Mining Company, Building 4, Suite 350,
1536 Cole Boulevard, Golden, CO 80401 (Certified Mail)
/ot

571

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
•

OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

MAR 2 '7 1990 ·
SECRETARY OF LABO~,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 86-240
A.C. No. 42-00121-03610
Deer Creek Mine

v.
EMERY MINING CORPORATION;
UTAH POWE~ & LIGHT COMPANY,
Respondent

.
.
..

Docket No. WEST 86-243
A. C. No. 42-01944-03514
Cottonwood Mine
Docket No. WEST 86-257
A.C. No . 42-00080-03570
Wilberg Mine

ORDER OF DISMISSAL
Before:

Judge Morris

The Secretary has moved to withdraw her request for civil
penalties herein.
As a grounds therefor the Secretary states the lOth Circuit Court of Appeals has vacated the citations herein.
The Secretary further notes that the Circuit Court's decision clarifies a point of Mine Act interpretation. Accordingly,
the Secretary requests that the Court's decision be attached to
this order of dismissal so the decision may be readily reviewed
by Mine Act practitioners.
For the foregoing reasons the following order is appropriate:
ORDER
For good cause shown, the Secretary's motions are GRANTED
and the cases · herein are dismissed.
Further, a copy of the lOth Circuit Court . of Appeals
decision is attached to this order of dismissal.

Law Judge

572

Fl LED

United States (')urc c.·f Appeals
'_.-f~! } .. ': :. -., ~ ~

PUBLISH

FEB 2 6 i9SO
UNITED STATES COURT OF APPEALS

~OBERT L HOECKER

TENTH CIRCUIT

Clerk

UTAH POWER & LIGHT COMPANY, Substituted )
for Emery Mining Corporation,
)'
)

Petitioner,

)
)

v.

Nos. 88-1655

)
)

SECRETARY OF LABOR, FEDERAL MINE &
SAFETY REVIEW COMMISSION,

&

88-1659

)

)
)

Responde nts,

)
)

UNITED MINE WORKERS OF AMERICA,

)
)

Intervenor,

)
)

)

AMERICAN MINING CONGRESS,

)
)

Amicus Curiae.

)

ON PETITION FOR REVIEW OF AN ORDER
OF THE FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION
(Nos. West 86-126-R,
West 86-131-R,
West 86-140-R, and
West 86-141-R)

Submitted on the briefs:
John A. Macleod, Thomas c. Means, and Ellen B.
Moring, Washington, D.C., for Petitioner.

Moran,

Crowell

&

George R. Salem, Solicitor of Labor, Edward P. Clair, Associate
Solicitor, Dennis D. Clark, Counsel, Appellate Litigation, and
Barry F. wisor, Attorney, United States Department of Labor,
Arlington, Virginia, for Respondent.
·
Michael H. Bolland, and Mary
Intervenor.

Lu

Jordan,

573

Washington,

D.C.,

for

Charles w. Newcom, and Susan K. Grebeldinger, Sherman & Howard
Denver, Colorado, Edward M. Green, and Mark G. Ellis, America~
Mining Congress, Washington, D.C., filed an Amicus Curiae Brief
for American Mining Congress.

Before TACHA, BALDOCK, and BRORBY, Circuit Judges.

PER CURIAM.

After examining the briefs and appellate record,

this

pane l

has determined unanimously that oral argument would not materially
assist the determination of these appeals.
34(a);

lOth

Cir.

R.

34.1.9.

The

See Fed.

R.

App .

P.

cases are therefore ordered

submitted without oral argument.
These cases present two issues of first

impression

in

this

circuit:
1.
Whether walkaround rights established in § l03(f)
of the Federal Mine Health and Safety Act of 1977 (Act),
30 u.s.c. § 813(f), extend to -miners• representatives
who are not employees of the mine operator?
2.
Whether a miners•
representative
seeking
to
exercise walkaround rights under S 103(f) of the Act
must first comply with the requirements of 30 C.F.R.,
Part 40?

The

Federal Mine Safety and Health Review Commission (Commission)

answered the first question in the affirmative and the
the

negative.

We

affirm

second

in

on the first issue and reverse on the

second.

574

On the morning of April 15, 1986, Vern Boston, a Mine
and

Health

Administration

Creek Mine, an underground
inspection.

Deer

(MSHA) inspector, arrived at the Deer
coal

mine

in

Utah,

to

conduct

was

Inspector

met at the gates of the mine by Tom Rabbitt, a member

of the International Health and Safety Department
Mine

an

Creek Mine was owned by Utah Power & Light Co.

(UPL) and operated by Emery Mining Corporation (Emery).
Boston

Safety

Workers

of

America

(UMWA),

of

the

United

who introduced himself to the

inspector and asked to accompany him on the inspection.
Boston
inspection,

agreed

that

Rabbitt

could

accompany

and

and

Rabbitt

entered

the

he

clearance for Rabbitt.

The mine manager,

Rabbitt

he

and

told

him

could

Earl

him

on

premises
White,

the

to get

met

with

enter the mine pursuant to the

collective bargaining agreement with the UMWA

but

for

the

fact

that he had not given the twenty-four hour advance notice required
by Emery.
§

1

Rabbitt

then

said

he

was

seeking

entrance

under

103(f) of the Act, which provides for walkaround rights.l
Section 103(f) of the Act provides:
Participation of representatives of
miners in inspections

operators

and

Subject to regulations issued by the Secretary, a
representative of the operator and a representative
authorized by his miners shall be given an opportunity
to
accompany
the
Secretary
or
his
authorized
representative during the physical inspection of any
coal or other mine made pursuant to the provisions of
subsection (a) of this section, for the purpose of
aiding
such
inspection
and
to
participate
in
pre- or post-inspection conferences 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 min~. Such representative of
(Continued on next page.)

575

White,

Rabbitt, and Boston discussed the scope of walkaround
White

rights under 5 l03(f).
Rabbitt
under

was
the

walkaround

not

rights

the

of

the

opinion

that

since

Emery employee, he had no walkaround rights

Boston

Act.

International.
of

an

was

disagreed,

because

saying
was

he

a

that

Rabbitt

had

of

UMWA

member

the

Boston then wrote White a citation under

S l04(a)

Act, 30 u.s.c. 5 814(a), for violating 5 103(f).

He gave

White ten minutes to abate the violation.
White, fearing that Boston might issue a withdrawal order
White

did

not

abate

the

violation,

participate in the inspectlon, but
hazard

recognition

and

waiver

said
of

agreed
he

must

liability

required nonemployees to sign before entering the
refused

to sign ~he form.

right

a

let
first

form

that

Rabbitt
sign

a

Emery
Rabbitt

mine.

Boston then called his supervisor, who

was not familiar with Emery's waiver form.
that

to

if

Based

on

his

belief

representative of the UMWA International had an unlimited·
of

access

to

a

mine

under

S 103(f),

the

supervisor

(Continued from previous page.)
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 representatives.
However, only one such representative of miners who is
an employee of the opeYator shall be entitled to suffer
no loss of pay during the period of such participation
under the provisions of this subsection. Compliance
with this subsection shall not be a jurisdictional
prerequisite to the enforcement of any provision of this
chapter.

576

instructed

Boston

to

proceed

with

Rabbitt

on the inspection.

Boston then informed White that his refusal to permit
participate · in

the

Rabbitt

to

inspection unless Rabbitt signed a waiver of
I

liability was .in violation of S l03(f).

Boston

added

a

second

violation of S 103(f) to the ¢riginal citation.
Thereafter,

White

agreed

to abate the alleged violation by

allowing Rabbitt to accompany the inspector
waiver

of liability.

without

signing

The inspection party, consisting of Boston,

Rabbitt, Mark Larsen, a representative of miners from
committee,

the

the

safety

and Terry Jordan and Dixon .Peacock, representatives of

Emery, then proceeded underground.
On
30 u.s.c.

April 17, 1986,

pursuant

8l5(d),

filed

§

citation issued

Emery

to
a

April 15, 1986.

S lOS(d)

notice

Shortly

moved to intervene in the proceedings.

of

of

contest

thereafter,

its

mines,

including

the Deer Creek Mine.

received three more citations from

S 103(f) similar to Emery's.

issued

to

Emery

of

the

the

UMWA

the

MSHA

the

operation

OPL subsequently

for

violations

of

OPL filed a timely notice of contest

with respect to each citation.
citation

Act,

On April 24, 1986, Emery's

contract with UPL was terminated and UPL took over
of

the

The

and

to

parties
have

agreed

to

try

the

the administrative law

judge's (ALJ) ruling on that citation control the

disposition

of

the three citations issued to UPL.
The

ALJ

held an evidentiary hearing on May 14 and 15, 1986.

The issues before him were the two
appeal,

as

well

as

under

consideration

in

this

a third, concerning whether an operator can

require a nonemployee representative of miners to sign a waiver of

577

liability before exercising walkaround rights.
the ALJ ruled against Emery on all

On August 7, 1986,

three - issues.

Emery

Mining

Corp., 8 F.M.S.H.R.C. 1192 (1986).
Thereafter,

the

Commission

granted discretionary review of

the ALJ's decision.pursuant to 30 u.s.c. S 823(d)(2)(A)(i).

After

briefing and oral arguments, the Commission issued its decision on
Emery's

citation

F.M.S.H.R.C.

on

· 276

March 29, 1988.
(1988).

. The

Emery

Utah

Power

Corp.,

10

also

issued

a

Commission

cQnsolidated summary opinion on UPL's
day.

Mining

three

citations

the

same

& Light Co., 10 F.M.S.H.R.C. 302 (1988).

The

Commission affirmed the ALJ on the first two issues

and

reversed

him on the third issue concerning the waiver of liability.
Emery

and

Commission's
30 U.S.C.

§

UPL

petitioned

decisions
816(a).

this

court

to

S 106(a)

pursuant

for

review
of

the

Act,

They challenge the Commission's rulings with

respect to nonemployee walkaround rights and compliance
requirements of 30 C.F.R., Part 40.

with

the

We consolidated the petitions

under the caption Utah Power & Light Co. v.
Since

of the

Secretary

of

Labor.

UPL has been substituted for Emery on appeal, we will refer

to the arguments of UPL hereinafter.

I.

We first address UPL's contention

that

S l03(f)

walkaround

rights do not extend to nonemployee representatives of miners.

In

reviewing the interpretation of S l03(f) asserted by the Secretary
of

Labor

(Secretary)

and

the Commission, we are mindful of the

578

United States Supreme Court's directions in Chevron, U.S.A.,

Inc.

v. Natural Resources Defense Council, Inc., 467 u.s. 837 (19e4).
When a court reviews an agency's construction of
the statute which it administers, it is confronted with
two questions.
First, always, is the question whether
Congress has directly spoken to the precise question at
issue.
If the intent Of Congress is clear, that is the
end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent
of Congress. If, however, the couit determines Congress
has not directly addressed the precise question at
issue, the court does not simply impose its
own
construction on the statute, as would be necessary in
the absence of
an
administrative
interpretation.
Rather, if the statute is ~ilent or ambiguous with
respect to the specific issue, the question for the
court is whether the agency's answer is based on a
permissible construction of the statute.
!d. at 842-43 (footnotes omitted).
We have held that an agency's
entrusted

interpretation

of

a

to that agency for administration should be accepted if

it is a reasonable one, even _if another interpretation
that

statute

is equally reasonable.

748 F.2d 1400, 1405 (lOth

may

exist

Jones v. Federal Deposit Ins. Corp.,

Cir.

1984);

Brennan

v.

Occupational

Safety and Health Comm'n, 513 F.2d 553, 5·54 (lOth Cir. 1975).
Congress did not speak to the precise issue before us when it
drafted

S 103(f)

like

the

dispositive.

See

Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 u.s .

102,

Commission,

find

of

the

Act.

the

language

Nonetheless,
of

S 103(f)

we,

108 (1980)("[T]he starting point for interpreting a statute is the
language of

the

legislative

intention

ordinarily

be

statute

itself.
to

the

Absent
contrary,

a

clearly
that

expressed

language

must

regarded

as · conclusive.");

Inc.

United States, No. 87-2564, slip op. at 4

Colorado

Property

. ,-

Acquisitions,

v.

579

(lOth Cir. Jan. 24, 1990)("When the meaning of a statute is
from

its

face,

resort

to

rules

of

clear

statutory construction or

legislative intent is unnecessary.").
The

first

representative

sentence

of

authorized

by

S 103(f)
[the

provides

operator's)

that

"a

miners shall be

given an opportunity to accompany the Secretary or his

authorized

representative during the physical inspection of any coal or other
mine made pursuant to the provisions of
section."

This

sentence

confers

authorize a representative for
limitation

on

the

subsection

upon

(a)

of

this

the miners the right to

walkarou nd

purposes

without

any

employment status of the representative.

See

Council of s. Mountains, Inc. v. Federal Mine

Safety

and

Health

Review Cornm'n, 751 F . 2d 1418, 1421 n.lB (D.C. Cir. 1985) ("The Mine
Act, however, merely refers

to · 'representatives'

articulate

between

any

distinction

the

and

does

not

rights of employee and

· nonemployee representatives.").
The

third

representative

sentence
of

of

S 103(f)

provides

that

"[s]uch

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."

(Emphasis added . )

As noted by the Commission, "also" means "in addition," "as well,"
"besides,"

and "too."

(quoting Webster's
1971)).
"A

Emery Mining Corp . , 10 F.M.S.B.R.C. at 284

Third

Dictionary

~nt'l

62

(Unabridged

ed .

Put in other words, the third sentence of S 103(f) reads:

representative

representative,

is

of

miners

who,

an

employee

in

addition

to

being

a

of the operator shall suffer no

580

loss of

pay

during

inspection •

"

the

period

of

his

participation

in

the

By creating a subclass of representatives who are entitled to
compensation while exercising walkaround
Congress

rights

under

S 103(f),

clearly recognized that some miners' representatives may

be employees of the operator and some
employees

are

entitled

to

may

not.

Those

who

are

who

are

not

Those

compensation.

employees may participate in the inspection, but are not
t9

compensation

S 103(f)

from

the

operator

under

that

the

Commission

ignored

entitled
for

their

participation.
UPL argues
interpretations

other

of the third sentence of S 103(f).

UPL contends that the third sentence

represents

a

reasonable

Specifically,
congressional

recognition that
there would be situations in which mine operators might
consent to walkarounds by non-employee representatives
of miners, or in which non-employee representatives had
contractual rights to enter upon mine property for the
purpose of accompanying inspectors . [Congress) simply
wanted to be clear that the compensation right under
S 103(f) did not attach in those circumstances.
Brief of Petitioner Utah Power & Light Co. at 19-20.
We

are

not

persuaded by UPL's argument.

read a limitation into the
statutory

language.

statute

that

has

UPL would have us
no

basis

in

the

Furthermore, if a nonemployee representative ·

could exercise walkaround rights only if the operator so consented
or

the

parties'

contractual

rights

so provided, and could not

exercise walkaround rights under S 103(f), Congress would have

no

reason

not

to

clarify

that

a

nonemployee

representative

entitled to compensation from the operator under S 103(f).

581

is

UPL as~erts that selected excerpts from the Act's legislative
history

support its theory that Congress did not intend to extend

walkaround rights to nonemployee representatives.

In

particular,

UPL cites to a debate between Senator Javits, who was a sponsor of
the Senate bill that eventually became the Act, and Senator Helms.
See 123 Cong. Rec. 20,019-20 (1977).
While

we agree with UPL that the Senators' debate focused on

. the importance of miners participating in inspections of the mines
in which they work,2 that focus is explained by the context of the

•

Senators' debate.

Senator Helms had introduced an amendment

would

third

strike

the

and

fifth

sentences

of

S 103(f), thereby deleting the provisions concerning
for

employee

Senator

representatives.

amendment.

See 123 Cong. Rec. 20,019 (1977).

therefore,

were

representatives.

Javits
The

debating

the

merits

of

They

were

not

concerned

the

that

present

compensation
opposed
two

the

Senators,

compensating employee
with

whether

2

For instance, Senator Javits remarked :
"[G]reater miner
participation in health and safety matters, we believe, is
essential in order to increase miner awareness of the safety and
health problems in the mine
"
123 Cong . · Rec. 20,019
(1977).
Senator Javits also said:
If miners are going to accompany inspectors, they are
going to learn a lot about mine safety, and that will be
helpful to other employees and to the mine operator.
In addition, if the worker is along he knows a lot
about the premises upon which he works and, therefore,
the inspection can be much more thorough.
We want to
encourage that because we want to avoid, not incur,
accidents.
123 Cong. Rec. 20,020 (1977) .

582

nonemployees,

who would not be compensated by the operator, could

be miners ' representatives for purposes of walkaround rights. 3
UPL also argues that the purposes of S l03(f), which
encouraging

miners

to

participate

include

in inspections and enhancing

miners' understanding and
requirem~nts

of

the

awareness of the health and safety
Act, 4 will not be furthered by allowing

nonemployees to act as miners' representatives under S 103(f).
A congressional

disagree .

We

desire to increase miners' knowledge

about health and safety issues does not require the

exclusion

of

nonemployees as miners' representatives for walkaround purposes.
Miners

may

benefit

in

a

number

of ways from nonemployee

representatives participating in walkarounds.

ALJ

in

For

instance,

the

this case found that Rabbitt had held virtually every job

in a coal mine and had received special

training

in

health

and

safety

matters, including seminars sponsored by the MSHA that are

given

to

federal

investigated

"accidents ,

various mines .
findings

inspectors .
disasters,

Furthermore,

Rabb i tt

fires,

explosions" in

and

Emery Mining Corp . , 8 F.• M.S . H.R.C. at 1186 .

illustrate

that

a

had

These

nonemployee representative may have

greater expertise in health and safety matters

than

an

employee

representative.
3
Senator Helms, himself, appeared to recognize
that
a
representative of miners might not be an employee of the operator.
In arguing for the adoption of his amendment, the Senator said:
"As written, the act states that the representative of the miners,
if he 'is also an employee of the operator shall suffer no loss of
pay as a result of his participation in the inspection.'" 123
Cong . Rec. 20,019 (1977) (emphasis added).
4
SeeS. Rep . No. 181, 95th Cong., 1st Sess. 28, reprinted in
1977 u.s . Code Cong . & Admin. News 3401, 3428.
583

In

addition,

if

a nonemployee representative has inspected

other mines, his knowledge of those mines may increase his ability
to

spot

problems

consideration.
subject

to

and

to

suggest

in the mine under

Furthermore, a nonemployee representative

is

not

the. same pressures that can b~ exerted by an operator

on an employee representative.
of

solutions

Therefore, the underlying purpose.s

S 103(f), and the Act in general, can be furthered by allowing

both employees and nonemployees to act as miners'

representatives

for walkaround purposes.
UPL

contends

that

statements

in

an interpretive bulletin

issued by the Secretary in April of 1978 support its position that
walkaround

rights

representatives.s
support

UPL's

were

not

intended

to

While isolated comments
position,

other

representatives.

The

inconclusive on the issue before us.
legislative

history

in

comments

position of the Secretary, that walkaround
nonemployee

extend to nonemployee
the

bulletin

support
rights

the
do

interpretive

may

present

extend

to

bulletin

is

Neither the bulletin nor the

convince us that the interpretation accorded

the statute by the agency is unreasonable or unsupportable.
Finally, UPL argues that permitting nonemployees to
walkaround

rights

under

S 103(f}

operator's property rights.
amendment

cases

which

exercise

impermissibly infringes on an

UPL relies

on

a

number

of

fourth

express the United States Supreme Court's

concern with

the

inspections.

ln particular, OPL cites Donovan v. Dewey, 452 u.s.

(1981),

infringement

in

which

of

594,

605

the

5

!!! 43 Fed. Reg. 17,546 (1978).

property

Court

584

held

rights

that

by

federal

warrantless

inspections

of mines by federal inspectors under the Federal Mine

Safety and Health Act are not unreasonable.
UPL contends that although the Act "establishes a predictable
and guided federal regulatory presence" so that "the operator of a
mine 'is not left to wonder about the purposes of the inspector or
the

limits

of

his

task,'" id. at 604 (quoting United States v.

Biswell, 406 U.S. 311, 316 (1972)), the same cannot be said
nonemployee miners' representative.
A~t

presents an inherent

union
the

representatives,"
UMWA

acknowledged

representatives
safety

'was

objectives

exercise

temptation

a

UPL cautions that "[t]he Mine
for

abuse

by

non-employee

and

cites as an example a case in which

that

"its

made

and

of

for

designation

purposes

thereby

of

walkaround

unrelated to the Act's

constituted

an

inappropriate

of the UMWA's designation right under S 103(f). '"

of Petitioner Utah Power & Light Co. at

35

n.21

Brief

(quoting

Nacco

Mining Co., 6 F.M.S.H.R.C. 2734, 2738 (1984)).
UPL's

argument

ignores

the

fact

that,

inspector, the Act clearly spells out the
representative ' s

participation

as with a federal

purpose

in an inspection.

of

a

miners'

Section l03(f)

provides that an authorized miners' representative shall have

the

opportunity to accompany a federal inspector during the inspection
of a mine "for the purpose of aiding such
recognize

UPL's

concern

a

While

we

that walkaround rights may be abused by

nonemployee representatives, the
require

inspection."

po~ential

for

abuse

does

not

construction of the Act that would exclude nonemployee

representatives from exercising walkaround rights altogether.

585

The

solution

is

for

the

operator to take action aga i nst individual

instances of abuse when it discovers them r
In sum, we conclude that the Secretary ' s and the Commission's
interpretation

of the Act is both reasonable and supportable, and

we hold that miners may authorize nonemployees

to

act

as

their

representatives under S 103(f) of the Act.

II.

The
holding

second
that

issue

"an

representative

we must address concerns the Commission' s

operator

access

to

may
a

not

[30 C.F . R. ,J Part 40."

a

miner's

(sic )

mine for walkaround purposes solel y

because the representative has not filed
under

refuse

identifying

information

Emery Mining Corp~~ 10 F.M.S.H.R . C.

at 2'79 .
The regulations set fort h in 30 C.F.R., Part

40

provide

follows:
S 40.1

Definitions.

As used in this Part 40:
(a) "Act" means the Federal Mine Safety and Health
Act of 19'7'7.
(b) "Representative of miners" ~eans ~
(1) Any p~rson or organization which represents
two or more miners at a coal or other mine for the
purposes of the Act, and
(2) "Representatives authorized by the miners " ,
"miners or their representative", "authorized miner
representative", and other similar terms as they appear
in the Act.

5 40.2

Requirements.

(a) A representative of miners shall file with the
Mine Safety and Health Administration District Manager
for the district in which the mine is located the

586

as

information
required
by
s 40.3 of this part .
Concurrently, a copy of this information shall be
provided to the operator
of
the
mine
by
the
representative of miners.
(b) Miners or their representative organization
may appoint or designate different persons to represent
them under various sections of the act relating to
representatiyes of miners.
(c) All information filed pursuant to this part
shall be maintained by the appropriate Mine Safety and
Health Administration District Office and shall be made
available for public inspection.
S 40.3

Filing procedures.

(a) The following information shall be filed by a
representative of miners with the appropriate District
Manager, with copies to the operators of the affected
mines. This information shall be kept current:
(1} The name, address, and telephone number of the
representative of miners. If the representative is an
organization, the name, address, and telephone number of
the organization and the title of the official or
position, w.h o is to serve as the representative and his
or her telephone number.
(2) The name and address of the operator of the
mine where the represented miners work and the name,
address, and Mine Safety and Health Administrati.on
identification number if known, of the mine.
(3) A copy of the
document
evidencing
the
designation of the representative of miners.
(4) · A statement that the person or position named
as the representative of miners is the representative
for all purposes of the Act; or if the representative's
authority is limited, a statement of the limitation.
(5) The names, addresses, and telephone numbers,
of any representative to s~rve in his absence.
(6) A ~tatement that copies of all information
filed pursuant to this section have been delivered to
the
operator
of the affected mine, prior to or
concurrently with the filing of this statement .
( 7 )· A statement certifying that all information
filed is true and correct followed by the signature of
the representative of miners.
(b) The representative
of
miners
shall
beresponsible for ensuring that the appropriate District
Manager and operator have
received
all
of
the
information required by this part and informing such
District Manager and operator of any subsequent changes
in the information.

587

S 40.4 .Posting at mine.
A copy of the information prqvided the operator
pursuant to S 40.3 of this part shall be posted upon
receipt by the operator on the mine bulletin board and
maintained in a current status.

S 40.5 Termination of designation as representative of
ainers.
(a) A representative of miners who becomes unable
to comply with the requirements of this part shall file
a statement with the appropriate District
Manager
terminating his or her designation.
(b) · The Mine Safety and Health Administration
shall terminate and remove
from
its
files
all
designations of representatives of miners which have
been terminated pursuant to paragraph (a) of this
section
or which are not in compliance with the
requirements of this part. The Mine Safety and Health
Administration
shall
notify the operator of such
termination.
The Commission,

in

holding

that

Emery

could

not

refuse

Rabbitt admission to the mine for walkaround purposes just because
neither he nor his position were listed
with

Emery

pursuant

to

Part

40,6

on

the

relied

on

documents
its

holding in

Consolidation Coal Co., 3 F.M.S.H.R.C. 617 (1981), which it
"to

represent

a

sound

interpretation

accurately reflect the Secretary's
promulgating

his

Part

40

found

of section 103(f) and to

clearly

regulations . "

filed

expressed

intent

in

Emery Mining Corp., 10

F.M.S.H.R . C. at 287.

6
The information submitted to Emery under Part 40 listed Frank
Fitzek as the selected representative of miners and listed
thirteen other people, including Mark Larsen, as selected multiple
representatives.
In
the
space
provided for listing the
organization, if any, with which the representative is associated,
the document listed the UMWA and reflected that Frank Fitzek,
safety chairman, was the representative associated with that
organization.

588

The "Secretary's
Commission

clearly

expressed

to

which

the

referred, arose fr·om the preamble to the final Part 40

regulations which stated in part:
that

intent"

"However, it

should

be

noted

miners and.their representatives do not lose their statutory

rights

under

section

representatives
(1978) .

of

103{f}

by

their

failure

miners under this part."

The -Secretary

argues

on

appeal

file·

to

as

43 Fed . Reg. 29,508
that

the

foregoing .

language "is dispositive of the Secretary's intent in promulgating
tne Part 40 regulations ...

Brief for the Secretary of Labor at 26.

In reviewing the Secretary's interpretation of
~egulations,

we

are

mindful

of

two rules.

the

Part

First, an agency's

regulation "is entitled to deference unless it can be said not
be

a

reasoned

and

supportable

40

interpretation

of

Whirlpool Corp. v. Marshall, 445 u.s. 1, 11 {1980).

to

the

Act."

Second,

"'a

regulation must be interpreted so as to harmonize with and further
and

not

to

conflict

implements. ' "

with

the

objective

of

the

statute

it

Emery Mining Corp . v. Secretary of Labor, 744 F.2d

1411, 1414 (lOth Cir. 1984)(quoting

Trustees

of

Ind.

Univ.

v.

United States, 618 F.2d 736, 739 {Ct. Cl. 1980}).
The
for

Part 40 regulations themselves do not make any exception

representatives

representatives

for

of

miners

S 103(f}

who

desire

purposes.

authorized

preamble

to

the

which is not -part of the regulations as published in

the Code of Federal Regulations.
Secre:t a·ry 's · interpretive
7

be

The only place such an

exception is set forth is in the aforementioned
regulations,

to

Neither

bulletin

43 Fed. Reg. 17,546 (1978).
589

the

preamble

nor

the

to which it refers,7 cite any

reasons for . making an exception to the regulations for purposes of
S l03(f).

Likewise, the Secretary, here, gives no explanation for

such an exception.
Section

103(f)

of

the

Act

provides

regulations

issued

by

the

Secretary,

• • •

a

to

representative

shall

accompany

or his authorized representative during

Secretary

the physical inspection of any coal
aqded.)

As

both

the

given

"(s]ubject

authorized by (the] miners
the

be

that

or

Secretary

the

other
and

opportunity

mine."

the

to

(Emphasis

Commission

have

acknowledged, the Part 40 regulations were implemented pursuant to
the

delegated to the Secretary in S l03(f) of the Act.

authority

~Brief

for Secretary of Labor at 15-16;

F.M.S.H.R . C.

at 285.

Emery Mining Corp., 10

On their. face, the regulations apply to all

representatives of miners for all purposes under the
the

Act.

Thus,

Secretary's interpretation of the regulations is at odds with

both the Act and the plain language of the regulations themselves.
Furthermore, valid reasons
with

the

exist

for

requiring

compliance

Part 40 regulations for S 103(f) purposes.

As Chairman

Ford pointed out in his dissent below, the information required to
be

filed

each

by

Part

miners•

authority.

representative,
See

Emery

30 C.F.R. 5 40.3.
MSBA

district

of

Mining

as

well

as

the

scope

of

his

Corp., 10 F.M.S.H.R.C. at 294-95;-both

the

manager and the operator of the affected mine.

30

C.F.R. 5 40.3(a).
copy

40 establishes the identity and bona fides of

The information must be provided

The operator, in turn, is required

to

to

post

a

the information filed on the mine bulletin board, and to

keep the information current.

Id. at S 40.4.

590

The Secretary has explained the

importance

of

posting

the

Part 40 information on the mine bulletin board as follows:
The posting of "Re~resentative of Miner" information
will
keep
the
m1ners
abreast
of
who
their
representatives are, and for what purpose under the act
their representatives serve. This knowledge will better
acquaint
the miner with MSHA's health and safety
programs which will further promote an awareness among
the miners of the importance of health and safety at the
mine.
43 Fed. Reg . 29,508, 29,509 (1978).
The Secretary and the Commission have stressed the importance
walkaround

rights

throughout

legislative history

of

thought

rights

walkaround

awareness and

the . Act

knowledge

to

of

this

"litigation,

reflects
be

that

and

the

Congress,

too,

important in increasing miner

health

and

safety

conditions

and

s. Rep.
. No. 181, 95th Cong., 1st Sess. 28,
reprinted in 1977 u.s. Code Cong. · ~ Ad. News 3401, 3428; Secretary
See

requirements.

of Labor ex rel. Truex, 8 F.M.S.H.R.C. 1293, 1299 (1986).
Every

miner

s 103(f)

Therefore,

representatives
behalf.

cannot

organization

provides

who

Pursuant

will
to

who

30

miners

at

a

C. F.R.

federal inspection .

·miners

may

authorize

two

S 40.l(b),

any

person

or

or more miners is considered a

mine may have more than one representative for

other purposes under the Act.
such

a

The regulatory scheme contemplates that

walkaround purposes and may

Under

that

in

participate in the inspection on their

represents

"miners' representative."
the

participate

a

have

different

representatives

for

See id. at S 40.2(b).

scheme, it is imperative that both the miners

and the operator know who the miners' representatives are and

591

the

scope of their authority.

As the Secretary - has said, knowledge on

the part of the miners of the identity, whereabouts, and scope
responsibility
the Act.
.to

of

of

their representatives promotes the purposes of

See 43 Fed. Reg. 29,508, 29,509 (1978).

Allowing people

act .as representatives of miners under S l03(f) does little to

further the purposes of the Act unless the miners know

S 103(f)
them

representatives

regarding

health

are
and

so

who

their

that they may communicate with

safety

issues

related

to

the

inspections.
Furthermore, since a person need only represent two mi ners to
qualify

as

a

requirements

"miners'
of

representative,"

compliance

with

Part 40 is necessary to ensure that a person who

attempts to exercise walkaround rights on behalf of miners
fact

the

is

in

"authorized" by the miners to do so, as required by S 103(f )

of the Act.
In addition, the Secretary's interpretation of
regulations
position.
to

places

the

operator

in

whether

Part

40

a precarious and untenable

If an operator cannot rely on the Part

determine

the

40

information

someone is an authorizeQ representative of

miners for walkaround purposes, he

has

no

settled

criteria

by

which to judge an alleged representative's authority.
As
permit

the
an

walkaround

Secretary
authorized
rights

bas

recognized, an operator's refusal to

miners'

representative

to

exercise

provided in 5 103(f) is a violation of the Act

for which the operator is subject to a citation under s 104 and
civil

penalty

17,547 (1978).

the

under

5 lOS of the Act.

!!! 43 Fed . Reg. 17,546,

Furthermore, if the operator fails
592

a

to

abate

the

violation

of

S 103(f), not only will it be subject to additional

civil penalties for each day of nonabatement,

but

the

inspector

may issue a withdrawal order pursuant · to S 104(b) of the Act .

See

43 Fed. Reg. 17,546, 17,547 (1978).
Thus, the consequences of an operator ' s refusal to permit
authorized

miners '

representative

under S 103(f) are quite severe .
operator

to exercise walkaround rights
severity requires

T~is

rep~esentative

Co.,

on

the

circumstances

representative
of

the

Consolidati on

walkaround

particular

Consolidation Coal Co., 3 F . M. S.H.R.C. at 619.
not

in

and reaffirmed below, whether an operator is justified

in de nying a purported miners'

does

an

for walkaround purposes .

Under the method adopted by the Commission

depends

that

have a sure and settled method by which to determine who

is an authorized miners '

Coal

an

If

the

case.

rights
See

inspector

agree with the operator's determination that someone is

not an authorized miners' representative for S 103(f) purposes, as
happened

in the present case, the operator must risk the issuance

of a citation , the assessment of civil penalties, and the possible
closure of a portion of the mine before it can get a determination
from the Commission whether it was justified in refusing to

allow

the purported representative to exercise walkaround rights.8
8

In contrast, if an operator refuses to allow a federal
inspector to inspect a mine, the inspector cannot gain immediate
access. Instead, the Secretary must bring a civil suit against
the
operator to enjoin future refusals of admission.
~
30 u.s.c. S 818{a)(l). Thus, the operator is furnished a forum
prior to the inspection in· which "to show that a specific search
is outside the federal regulatory authority, or to seek from the
district
court
an order accommodating any unusual privacy
intere~ts that the mineowner might have."
Donovan, 452 u.s . at
605.
593

The interpretation of the Part 40 regulations asserted by the
Secretary and adopted by the Commission is contrary to
language

of

the

Part

representatives

for

§

40

regulations

103(f)

purposes.

representative's failure to comply with the
operator

to

the

apply

to

Thus,

a

regulations

miners

Our holding will not work a

them

miners'
entitles

since

the

requirements

great
of

hardship

Part

straightforward, and if a miners' representative fails
with

miners'

refuse the representative access to the mine for

walkaround purposes.
on

We therefore

the Sec~etary's interpretation and hold that the mandatory

requirements

an

plain

of the regulations, fails to further the purposes of the

Act, and puts the operator in an untenable position.
reject

the

to

40

are .

comply

and, therefore, cannot exercise walkaround rights, · the

Act requires the federal inspector to "consult with
number

of

mine.u

30 U.S . C.

a

reasonable

miners concerning matters of health and safety in such
§

813(f).

In the present case, the
April 15, 1986,

Rabbitt

parties

was

do

not

dispute

that

on

not listed as an authorized miners'

representative for walkaround purposes on the documents filed with
Emery

pursuant

to Part 40.

Therefore, Emery did not violate the

Act by refusing Rabbitt access to the mine for walkaround purposes
under § 103(f).
III.

The

Commission's

decisions

in

~E~m~e~r~y~~M~l~·n~i~n~g--~C~o~r~p~. ,

F.M.S.H . R.C.

276

(1988),

and

Utah

F.M.S.H.R.C.

302

(1988),

are

AFFIRMED

part.

Power

& Light

Co.,

10 '

in part and REVERSED in

The citations at issue in those cases are hereby VACATED.
594

10

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280. 1244 SPEER BOULEVARD
DENVER. CO 80204

March 21, 1990
ARMANDO M. RIVAS,
Complainant
v.

.

DISCRIMINATION PROCEEDING

.

Docket No • WEST 89-395-DM

PHELPS DODGE MORENCI, INC.,
Respondent

MD 89-36

ORDER DENYING MOTION
Following an on-the-record preliminary hearing on February 6,
1990, for the special purpose of resolving ~espondent's Motion for
Summary Decision, counsel for both parties submitted their positions
by oral argument at the close of hearing in lieu of filing written
briefs.
Respondent contends the Complaint should be dismissed since
Complainant did not file such with MSHA until approximately 174 days
( T. 52) after he was discharged on September 15, 1988 ( T •. 14) , or some
31 months beyond the 60-day filing limit provided in Section 105(c) of
the Mine . Act.
Complainant presented three witnesses at the hearing to establish that the filing delay resulted from his suffering epilepsy,
and memory defects, and from the time it took for him to consult
with attorneys and to investigate his remedies with other agencies
(T. 12-13).

Respondent presented no witnesses (T. 49) but claimed both
general and specific prejudice (T. 54) from the filing delay. Thus
Respondent contends:
" •.• there are approximately two dozen employees that
are listed in Mr. Rivas's three page complaint who either
participated in alleged harassment of him or observed that
alleged harassment • • • • it is not reasonable for this
tribunal to assume that all 24, 25, 30 of those employees
mentioned in there would have the same recollection of
events two years ago as they would have of events if they
were permitted to testify to them in a timely manner.
And with respect to the specific prejudice issue •••
it is clear from the testimony that Mr. Rivas gave, and
that of his mother, that he himself has very specific
recollection problems. He testified that he has trouble
remembering things, his memory is not good, that he is
confused. His mother testified that there are some things
he remembers and other things that he does not."

595

XXX

XXX

XXX

..
there has been an inadequate (sic) showing of
justification. The complainant clearly was aware of the
Mine Safety Act and his right to assert complaints under
it as early as February of 1988. He apparently was contacting both ·agencies and attorneys as early as November
of 1988. And if he has received poor advice from those
attorneys, from those agencies, that is not obviously
the fault of the respondent ...
According to Complainant, Armando M. Rivas, (age 32 with a high
school education), he made contact with his employer, Phelps Dodge,
when he met with James Madison to request his job back (T . 15).
After that he called "several attorneys 11 and several agencies who
advised him they could do nothing (T. 15, 20).
Mr. ~ivas, an epilectic, was depressed and had 11 disorder 11
seizures during the period after his discharge which seizures cause
him to get confused, jerk, and affect his memory (T. 16). This
condition worsened in October and November, 1988 (Tr.
).
In November, 1988, Complainant apparently found out about his
rights to go to MSHA and file a complaint against his employer
(T. 35).
In January or February, 1989, while at the Civil Rights Division
(be1ieved to be a division of the Arizona Attorney General's Office),
a call was made in his behalf to MSHA. which subsequently sent him
complaint forms to be filled out (T. 22-26). Complainant received
help from a Community Action agency in Safford, Arizona in completing
the MSHA forms which led to the Complaint (Ex. ~-2> being prepared
in late February, 1989 (T. 45-48) being filed in early March, 1989
(T. 23, 27, 48).
According to Complainant's mother, Maria Meza, Complainant never
left "the home" .
She indicated that Complainant had seizures in
October, November and December of 19 88, and that his "mind wasn't
well," (T. 42) and that "he remembers some things, others he doesn't ...
(T. 44).
The Commission has held that the 60-day time limit is not jurisdictional and that while the purpose of the 60-day time limit is to
avoid stale claims, a miner's late filing may be excused on the basis
of "justifiable circumstances," Joseph w. Herman v. IMCO Services,
4 FMSHRC 2135 (December 1982). the Mine Act's legislative history
relevant to the 60-day time limit states:

596

While this time-limit is necessary to avoid stale
claims being brought, it should not be construed
strictly where the filing of a complaint is delayed
under justifiable circumstances. Circumstances
which could warrant the extension of the time-limit
would include a case where the miner within the
60-day period brings the complaint to the attention
of another agency or to his employer, or the miner
fails to meet the time limit because he is misled
as to or misunderstands his rights under the Act.
s. Rep. No. 181, 95th Cong., 1st Sess. 36 (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
1977, at 674 (1978) (emphasis added).
Timeliness questions therefore must be resolved on a case-by-case
basis, taking into account the unique circumstances of each situation.
Hollis v. Consolidation Coal Company, 6 FMSHRC 21 (1984).
To prevail, the Respondent mine operator must establish that it
suffered material legal prejudice which was attributable to the Complainant's delay in filing his complaint. See Secretary of Labor v.
4-A Coal Company, Inc., 8 FMSHRC 905 (June 1986): Buelke ·v. Thunder
Basin Coal Company, 11 FMSHRC 238 (February 1989).
In this matter, the Complainant established the existence of
a most significant mental handicap affecting both his ability to
function as well as his memory following his discharge. It also
appears that following his discharge he made, in the context of his
condition, reasonable efforts to ascertain his remedies and to obtain
direction. The delay of 3i months beyond the filing period is not
sufficient to constitute the basis for creation of a presumption
of legal prejudice to the operator. Respondent's allegations of
prejudice, specific and general, are broad an~ speculative and do
not constitute grounds for a determination that it has suffered
sufficient material legal prejudice which are attributable to the
filing delay. ~/ See Nealey v. Transportation Maritime Mexicana,
S.A., 662 F.2d 1275, 1280-1281 (9th Cir. 1980)

1/ A weak excuse may suffice if there has been no prejudice: an
exceeding good one might still do even when there has been some.
Larios v. Victory Carriers, Inc., 316 F.2d 63~ 67 (2d Cir. 1963).

597

Accordingly, Respondent's motion for dismissal of these proceedings is denied.

~}{tc:i·,/1~A;4~/ /~'

Mlcfiael A. Lasher, Jr.
Administrative Law Judge

Distribution:
LisaK. York, Esq., 2700 N. Central Avenue, Suite 975, Phoenix,
AZ 85004
Armando M. Rivas, Route 1, Box 436, Safford, AZ 88596
Michael D. Moberly, Esq., Nathan R. Niemuth, Esq., Ryley, Carlock &
Applewhite, 101 North First Avenue, Suite 2600, Phoenix, AZ 85003
/ot

59 8
tr U.S. GOVERNMENT PRINTING OFFICE: 1990 -2 6 1 - 1 0 2 I 2 4 3 0 3