MA.Y

1991

CO:MMISSION DECISIONS'
05-07-91
05-22-91
05-23-91
05-23-91
05-29-91

Arch of Kentucky, Inc.
Mettiki Coal Corporation
Florence Mining Company
James D. McMillen
Lloyd Logging, Inc.

KENT 89-161-R
YORK 89-19-R
PENN 91-347-R
WEVA 90-200-M
WEST 91-14-M

Pg. 753

Pg.
Pg.
Pg.
Pg.

775
778

WEVA 90-287-R
W"EVA 90-296-R
KENT 90-113-D
KENT 91-49
WEST 91-21-DM

Pg.
Pg.
Pg.
Pg.
Pg.

783
789
792
807
810

WEVA 90-201
KENT 90-194
PENN 90-80
VA
90-44
WEVA 91-621-D

Pg.
Pg.
Pg.
Pg.
Pg.

812
818
827
828
830

LAKE 91-11
WEVA 91-126-D

Pg. 835
Pg. 842

WEVA 91-293-R
WEVA 90-305
WEVA 91-18
PENN 90-248
PENN 88-232-C
LAKE 91-38-D
KENT 90-113-D

Pg. 843
Pg. 848
Pg. 854
858
Pg. 860
Pg. 861
Pg. 868

KENT 90-356

Pg. 873

760
781

ADMINISTRATIVE LAW JUDGE DECISIONS
05-01-91
05-03-91
05-03-91
05-08-91
05-08-91
05-06-91
05-09-91
05-09-91
05-09-91
05-09-91
05-13-91
05-20-91
05-20-91
05-24-91
05-24-91
05-28-91
05-28-91
05-28-91
05-29-91

Southern Ohio Coal Company
Consolidation Coal Company
Thomas J. Mcintosh v. Flaget Fuels, Inc.
Pyro Mining Company
Sec. Labor for William R. Brockman v.
Calmat Company
Robert Ziegler, employed by' ·Alamosa Mining
Peabody Coal Company
Randy Coal Company
Blackfoot Coal Company, Inc.
Sec. Labor for Douglas B. Tuttle v.
A & M Trucking Company
Peabody Coal Company
Sec. Labor for Thomas Proudfoot v.
Mohigan Mining Company
Eagle Nest, Incorporated
Consolidation Coal Company
Consolidation Coal Company
Morea Services, Incorporated
Local 2874, UMWA v. BethEnergy Mines, Inc.
Bradley S. Craig v. Arch of Illinois, Inc.
Thomas J. Mcintosh v. Flaget Fuels, Inc.

ADMINISTRATIVE LAW JUDGE ORDERS
05-03-91

LJ 1 S Coal Corporation

MAY 1991
Review was granted in the following cases during the month_of May:
Secretary of Labor, MSHA v. Beech Fork Processing, Inc., Docket No. KENT 90-398.
(Judge Broderick, April 3, 1991)
Island Creek Coal Company v. Secretary of Labor, MSHA and UMWA, Docket No.
VA 91-47-R, etc. (Judge Koutras, April 3, 1991)
Secretary of Labor, MSHA v. Pigeon Branch Coal Company, Docket No. WEVA 90-266.
(Default Decision of Chief Judge Merlin on January 24, 1991)
Secretary of Labor, MSHA v. Cyprus Plateau Mining Corporation, Docket No.
WEST 91-44, etc. (Judge Morris, April 15, 1991)
Secretary of Labor, MSHA v. James D. McMillen, Docket No. WEVA 90-200.
Decision of Chief Judge Merlin on October 19, 1990)

(Default

Secretary of Labor, MSHA v. Lloyd Logging, Inc., Docket No. WEST 91-14-M.
(Default Decision of Chief Judge Merlin on April 3, 1991)
Review was denied in the following cases during the month of May:
Rochester & Pittsburgh Coal Company v. Secretary of Labor, MSHA, Docket No.
PENN 88-284-R, etc. (Judge Maurer, April 1, 1991)
Ricky Hays v. Leeco, Inc., Docket No. KENT 90-59-D.

(Judge Koutras, April 19, 1991)

COMMISSION DECISIONS

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

20006

7, 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. KENT 89-161-R
KENT 89-163-R
KENT 90-39

v.

ARCH OF KENTUCKY, INC.

BEFORE:

Backley, Acting Chairman; Doyle, Holen and Nelson, Commissioners

, ... DECISION
BY THE COMMISSION:
In this consolidated contest and civil penalty proceeding under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et~ (1988)
("Mine Act"), the issues are whether Commission Administrative Law Judge
william Fauver erred in finding that Arch of Kentucky ("Arch") violated two
mandatory underground coal mine safety standards: 30 C.F.R. § 75.1725(c),
requiring that repairs on machinery not be performed until the power is off,
except where machinery motion is needed to make adjustments 1 and 30 C.F.R.
§ 75.1722(c), mandating that guards be in place when operating maehinery,
except when testing the machinery. 2 12 FMSHRC 536 (March 1990)(ALJ). The
Commission granted Arch's petition for discretionary review. For the
reasons that follow, we affirm the judge's decision.

1

30 C.F.R. § 75.1725(c) 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.

2

30 C.F.R. § 75.1722(c) provides:
(c) Except when testing the machinery, guards
shall be securely in place while machinery is being
operated.

753

This case arises out of a fatal accident that occurred on April 18,
1989, at Arch's High Splint No. 2 Mine in Harlan County, Kentucky. The
accident occurred when a tram chain on a continuous miner broke, throwing a
connecting link approximately 12 feet through the air. The chain link hit
David Funk, the maintenance foreman, in the throat and severed an artery,
resulting in his death. An investigation of that accident gave rise to the
two citations at issue in this proceeding.
At the time of the accident, the continuous mining machine was being
repaired under the direction of Mr. Funk. He and his crew of five miners
were attempting to repair the right side planetary gear box on the
continuous miner. In order to remove the gear box, the planetary (pinion)
shaft, which extends through the gear box had to be removed.
The planetary shaft extends through a planetary sprocket which turns
the chain that propels the continuous miner. When the machine is in
operation, the tram chain is normally covered by a guard but, at the time of
the accident, the guard was open in order to provide access to the shaft and
sprocket.
To allow repairs, the contiRuous miner was taken out of production,
deenergized, jacked up, and properly blocked. The crew was unable to remove
the planetary gear box, however, because the splines 3 of the planetary
shaft were stuck on the planetary sprocket. An attempt to remove the shaft
was first made by inserting a roof bolt into the end of the shaft and
hitting the roof bolt with a sledge hammer to knock out the shaft. This
procedure was unsuccessful. Funk then decided to try to shear the splines
off the shaft by rotating the shaft back and forth using the tram motor with
the sprockets and tram chain attached. He instructed the crew to stand away
from the continuous miner, for what apparently he believed to be a safe
distance. Funk himself stood approximately 12 feet away from the chain. In
order to permit observation of the shaft, the guard was not put back in
place.
Funk told the continuous miner operator to tram the motor back and
forth (i.e., in forward and reverse). After approximately 15 or 20 times,
the tram chain broke. A connecting link from the chain was thrown, hitting
Funk's neck and severing his neck artery, causing death.
Following an investigation of the accident, the Mine Safety and Health
Administration ("MSHA") issued citations to Arch charging violation of
sections 75.1725(c) and 75.1722(c). The first citation alleged that repair
work was performed on the continuous miner while the power was on, when the
right tram motor was run in forward and reverse to strip the teeth off of
the pinion shaft. The second citation alleged that the continuous miner was
operated without a guard thereby exposing moving parts, the tram chain and
3

A spline is a groove or rib on a shaft. Bureau of Mines, U.S.
Department of the Interior, A Dictionary of Mining. Mineral and Related
Terms 1056 (1968).

754

sprockets.
Before the judge, Arch argued that it did not violate section
75.1725(c) because the regulation allows machinery motion when such motion
is necessary to make adjustments to the machinery. Similarly, Arch argued
that the guarding provision at section 75.1722(c) contains an exception to
the guarding requirement when there is a need to observe and test the
effectiveness of adjustments. Arch further argued that to deny the
applicability of either of the above exceptions would deprive it of adequate
notice of the meaning of the exceptions and thus would be violative of due
process protections and would defeat the rulemaking requirements of the Mine
Act. The Secretary argued that neither the adjustments nor the testing
exception applied. She contended that Funk used an unsafe method in trying
to strip the planetary shaft and that this procedure had nothing to do with
"making adjustments" or "testing" equipment.
Judge Fauver sustained the violations alleged in the citations.
12 FMSHRC at 539. Specifically, the judge stated:
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 designed 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.
Id.
The judge also found that Funk was "highly negligent in endangering
himself and his crew by using an unsafe and highly dangerous practice." Id.
On review, Arch argues that the judge erred in finding a violation of
section 75.1725(c), on grounds that the "adjustments" exception in the
regulation is applicable to the facts of this case. Arch argues that Funk
was using machinery motion to adjust the shaft.
Arch also argues that the judge erred in finding a violation of
section 75.1722(c), because the "testing" exception in the regulation is
applicable. Arch argues that its efforts to dislodge the shaft from the
planetary gear was a matter of testing to see if the shaft could be
dislodged in this fashion and that Funk felt it was necessary to observe the
action of machine power on the shaft. Arch additionally argues that section
75.1722(c) is inapplicable because the hazard here (a part unexpectedly
breaking from, and flying out of, equipment) is not the hazard that the
regulation was designed to prevent, i.e., persons getting so close that they
may contact moving machinery.
Arch further argues that the judge erred in deciding that the

"adjustments" and "testing" exceptions were inapplicable on the basis of an

755

after-the-fact determination that the procedure "proved to be completely
unsafe." Arch finally argues that to deny the applicability of the
"adjustments" and "testing" exceptions would violate its right to due
process and defeat the rulemaking requirements of the Mine Act. Arch thus
takes the position that it did not have advance notice of any prohibited
conduct.
I.

We first examine whether the "adjustment" exception in section
75.1725(c) applies to the facts of this case. We hold that the procedure
being used by Arch was not an "adjustment" under section 75.1725(c).
Accordingly, we find that the judge properly determined that Arch violated
the regulation.
We agree with the judge that Funk's attempted use of the torque of the
tram motor to shear the splines of the planetary shaft did not qualify as an
"adjustment" under the regulation. "Adjustment" is defined as "a means
by which things are adjusted one to another." Webster's Third New
International Dictionary (Unabridged) at 27 (1986) ("Webster's"). Arch was
not engaged in the activity of adjusting parts to one another. We agree
with the Secretary that yunk was 'attempting to destroy the planetary shaft
by stripping its splines and removing it altogether from the continuous
miner. Even Arch does not dispute that a continuous miner is not designed
to shear the splines from the planetary shaft by using the torque of the
tram motor. Arch's argument that Funk's procedure was "mak[ing]
adjustments" under section 75.1725(c) must be rejected.
The purpose of section 75.1725(c) is to "prevent, to the greatest
extent possible, accidents in the use of [mechanical] equipment." See 38
Fed. Reg. 4976, 4977 (February 23, 1973). A safety standard should be
construed to effectuate its purpose. See,~. Homestake Mining Co.,
4 FMSHRC 146, 147-49 (Feoruary 1982). The manifest intent of the regulation
is to restrict repair of machinery while the power is on. Although the
power may be on "where machinery motion is necessary to make adjustments,"
Arch's attempted application of the exception to the facts of this case does
not comport with the fundamental protective goals of the standard or of the
Mine Act itself. Indeed, there is substantial evidence in the record to
support the judge's finding that the procedure being used was unsafe. See
MSHA's Accident Report at 5. 4 We therefore agree with the Secretary's
reasonable interpretation and application of the "adjustments" exception.
We next address whether the safety standard, including the adjustment
exception, provided Arch with fair notice of the conduct required. It is
well settled that to afford fair notice, a mandatory safety standard cannot
be "so incomplete, vague, indefinite or uncertain that [persons] of common
4

The parties agreed that MSHA's Accident Report correctly stated the
facts of the case. Stip. 5. The Accident Report states that the accident
occurred because maintenance was being performed on the continuous miner in
an unsafe manner. Accident Report at 5.

756

intelligence must necessarily guess at its meaning and differ as to its
application." Ideal Cement Company, 12 FMSHRC 2409, 2416 (November 1990),
citing Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (December 1982)
(citations omitted). This Commission has held:
[I]n interpreting and applying broadly worded
standards, the appropriate test is not whether the
operator had explicit prior notice of a specific
prohibition or requirement, but whether a reasonably
prudent person familiar with the mining industry and
the protective purposes of the standard would have
recognized the specific prohibition or requirement
of the standard.
Ideal Cement Company, 12 FMSHRC at 2416. See also Alabama By-Products
Corp., 4 FMSHRC at 2129, citing Voegele Co .. Inc. v. OSHRC, 625 F.2d 1075
(3rd Cir. 1980). 5 Applying this test to the facts of this case, we
conclude that the reasonably prudent person familiar with the mining
industry would have recognized that the contemplated procedure was
prohibited by section 75.1725(c). Thus, we see no due process problems
stemming from Arch's asserted lack,,of notice. See Alabama By-Products
Corp. , 4 FMSHRC at 2129. .
II.

We next address whether the "testing" exc~ption in section 75.1722(c)
applies to the facts of this case. We hold that the procedure being used by
Arch was not "testing" as contemplated by the standard. Accordingly, we
find that the judge properly determined that Arch violated section
75.1722(c).
We agree with the judge that Mr. Funk's attempts to shear the splines
from the planetary shaft.did not qualify as testing under section
75.1722(c). Webster's defines "test" (in its verb form) as "to examine for
... physical defect." Webster's at 2362. Arch was not examining the
continuous miner for physical defects or attempting to determine if the
continuous miner or its components were functioning safely. Funk knew that
the planetary gear box was malfunctioning and in need of repair, and that,
in order to repair it, the gear box had to be removed. He had determined
that the shaft had to be removed in order to remove the gear box and that
the splines of the planetary shaft were stuck on the planetary sprocket.
Arch's characterization of its tramming of the motor back and forth in an
effort to shear the splines and dislodge the shaft as a "test" of whether
5

Cf. Ryder Truck Lines. Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir.
1974); Cape & Vineyard Division of the New Bedford Gas and Edison Electric
Light Co. v. OSHRC, 512 F.2d 1148, 1152 (1st Cir. 1975); American Airlines
v. Secreta:r:y of Labor, 578 F.2d 38, 41 (2nd Cir. 1978) (adopting similar
reasonably prudent person test under the Occupational Safety and Health Act
of 1970, 29 U.S.C. § 651 et .§.gg_.).

757

this procedure would work does not comport with the meaning of the word
"test" as used in the standard. Therefore Arch's argument that Funk was
"testing" must be rejected.
The purpose of section 75.1722(c) is to prevent accidents in the use
of equipment. See 38 Fed. Reg., supra, at 4977. The clear language of the
regulation manifests an intent to require guards to be in place while
machinery is being operated. Although a guard may be open when "testing,"
Arch's attempt to fit the procedure being used here into that exception does
not comport with the fundamental protective ends of the standard. We
therefore agree with the Secretary's reasonable interpretation and
application of the "testing" exception.
We next address Arch's argument that guarding standards are designed
to prevent the hazard that can result when a miner gets so close to exposed
moving machine parts that he may contact a moving part. Arch argues that
there is no requirement designed to prevent injury resulting from a part
flying out of the machine. We reject Arch's argument.
Section 75.1722(a) states that "[g]ears; sprockets; chains; ...
shafts; ... and similar exposed m9ying machine parts which may be contacted
by persons. and which may cause injury to persons shall be guarded."
(emphasis added.) Arch argues that this highlighted language limits
application of section 75.1722(c) to situations where "persons get so close
that they may contact moving machinery." Brief at 10. Arch thus contends
that there was no violation of section 75.1722(c) because in this case there
was no miner-initiated contact with moving machinery parts. We disagree.
Since there were chains, sprockets and other moving parts that could
be contacted by persons and cause injury, the machine parts involved here
required a guard pursuant to section 75.1722(a). Because a guard was
required by subsection (a), that guard was required by subsection (c) to be
in place whenever the machine was in operation except when the machine was
being tested. The fact that the injury was not caused by a miner initiating
contact with the moving part is irrelevant.
Finally, we reject Arch's argument that the safety standard did not
provide Arch with fair nQtice of the conduct required. The reasonably
prudent person familiar with the mining industry and the protective purpose
of the standard would have recognized the requirement of the standard.
Thus, we conclude that Arch has not been deprived of due process under the
Mine Act.

758

III.

Accordingly, the judge's decision is affirmed.

eL-~C,~c--c,/,~-£
,
cba:irIIla!l - .
Richard V. Backley, Acting

Arlene Holen, Commissioner

L. Clair Nelson, Commissioner

Distribution
.::1ichael T. Heenan, Esq.
Fillial'l K. Dornan, Esq.
Smith, Heenan & Althen
1110 Vermont Avenue, N. W., Suite 400
Washington, D.C. 20005
Colleen A. Geraghty, Esq.
Eva L. Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge William Fauver
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

759

~

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

22, 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. YORK 89-19-R
YORK 89-20-R
YORK 89-42

v.
METTIKI COAL CORPORATION

BEFORE:

Backley, Acting Chairman; Doyle, Holen and Nelson, Commissioners

DECISION

BY THE COMMISSION:
This consolidated contest and civil penalty proceeding arises under
the Federal Mine Safety & Health Act of 1977, 30 U.S.C. § 810 et seq. (1988)
(the "Mine Act" or "Act"). It involves the validity of a withdrawal order
and two citations issued by the Secretary of Labor to Mettiki Coal
Corporation ("Mettiki") based on the improper functioning of the lockout
device on the No. 34 circuit breaker ("breaker"), controlling the power to
the motor for the raw coal silo conveyor belt ("No. 34 belt") of the Mettiki
General Preparation Plant. The withdrawal order and citations were issued
during an inspection by the Mine Safety and Health Administration ("MSHA")
following MSHA's receipt of a complaint alleging that the No. 34 breaker
could be turned on even if it were locked out.
Administrative Law Judge William Fauver affirmed both citations. He
concluded that the violations were serious and were the result of a high
degree of negligence, but that they were not of a significant and
substantial nature. Mettiki Coal Co., 12 FMSHRC 722 (April 1990)(ALJ). He
modified the imminent danger withdrawal order issued under section 107(a) 1
1

Section 107(a) of the Mine Act provides, in pertinent part:
If, upon any inspection or investtgation of a
coal or other mine which is subject to this [Act],
an authorized representative of the Secretary finds
that an imminent
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

760 l

of the Mine Act to a failure. to abate withdrawal order issued. under section
104(b) 2 of the Act.
For the reasons set forth below, we reverse the
judge's conclusion that Mettiki violated sectionl04(b). We affirm the
violations alleged in the citations, but reverse the judge's conclusion that
the violations were the result of Mettiki's gross negligence.
I.

Factual and Procedural Background
Mettiki operates a coal preparation plant in Garrett County, Maryland.
The No. 34 breaker, which controls the power to the motor for the No. 34
belt, is located in a building adjacent to the raw coal silo. This breaker
is on the motor control panel and is clearly marked. The handle for the
breaker's switch is rectangular with a point at one end and is turned in a
circular motion to one of three designated settings·: on, off, or reset. The
settings are clearly marked with white lettering on a red background. The
handle turns within a metal collar or retaining ring, which completely
encircles the handle and setting designations. This collar has a notch cut
in it opposite the "off" designation. Thus, when the breaker is in the off
[104(c)], 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).
2

Section 104(b) provides:
If, upon any follow-up inspection of a coal or
other mine, an authorized representative of the
Secretary finds (1) that a violation described in a
citation issued pursuant to subsection (a) of this
section has not been totally abated within the
period of time as originally fixed therein or as
subsequently extended, and (2) that the period of
time for the abatement should not be further
extended, he shall determine the extent of the area
affected by the violation and shall promptly issue
an order requiring the operator of such mine or his
agent to immediately cause all persons, except those
persons referred to in subsection (c) of thi9
section, to be withdrawn from, and to be prohibited
from entering, such area until an authori~ed
representative of the Secretary determines that such
violation has been abated.

30 u.s.c. § 814(b).

761

position, the blunt end of the handle is located at this notch. A slide bar
is recessed inside the handle at the blunt end. When the switch is in the
off position, this slide bar can be partially pulled out of the handle and
through the notch. If this procedure is followed, the switch cannot be
turned from the off position. The slide bar has a slot in the middle to
enable a padlock to be attached, preventing anyone without a key from
turning on the power.
About three years before the contested order and citations were
issued, a new breaker for the No. 34 belt was installed at the same location
in the existing panel. Apparently the breaker was physically smaller than
the previous breaker. As a consequence, the switch handle did not protrude
out of the motor control panel sufficiently to allow the slide bar to clear
the notch in the collar. At that time, part of the slide bar was cut away
with a hack saw so that the slide bar could be pulled through the notch and
the switch could be locked out.
On November 29, 1988, MSHA received a complaint that the
No. 34 breaker could be turned on while locked out. MSHA Inspector Kerry
George was sent to investigate. At the time of the inspection, the
preparation plant and surface bel~-?, including the.No. 34 belt, were idle
for scheduled maintenanc&. Two miners were making mechanical repairs on the
speed reducer, a type of gear box, for the No. 34 belt. When Inspector
George arrived at the control panel, the No. 34 breaker was tagged out and
locked out. Clarence "Ted" Bowman, the surface electrician, was asked to
try to turn the breaker on with the lock in place. After the men working on
the speed reducer were no longer at the belt, Bowman attempted to turn on
the breaker. He could not do so on his first try. He then pushed the slide
bar into the switch handle about one quarter of an inch with the lock still
in place. As a result, the slide bar apparently could clear the notch in
the collar and he was able to turn on the No. 34 breaker without removing
the lock. Turning on the breaker did not restore power to the belt.
Inspector George issued an imminent danger withdrawal order alleging
that the "main breaker for the belt drive at the raw coal silo had been
modified to the point that when the breaker was locked out the lock could be
bypassed." Gov. Exh. 4. The order was issued at 8:50 a.m. on November 30,
1988 and the condition was abated at 9:50 a.m. on that same day when "a new
switch was installed eliminating the hazard." Id.
Inspector George issued citation No. 3110339 which charged a violation
of 30 C.F.R. 77.507 3 for the condition described in the imminent danger
order ("lockout citation"). Gov. Exh. 3. Inspector George also issued

3

Section 77.507, entitled "Electric equipment; switches" provides:
All electric equipment shall be provided with
switches or other controls that are safely designed,
constructed, and installed.

762

Citation No. 3110340 which charged a violation of 30 C.F.R. 77.502 4 for
not properly conducting monthly electrical examinations of the No. 34
breaker ("electrical examination citation"). Gov. Exh. 2. The citations
were abated within an hour. The parties agree that both citations were
abated in good faith.
In his decision, the judge concluded that "the defective lock out
device did not create an imminent danger." 12 FMSHRC at 727. The judge
modified the section 107(a) imminent danger order to a section 104(b)
failure to abate order. The judge concluded that the "inspector could have
issued a § 104(b) order withdrawing the breaker from service until the
defective lock out device was corrected" because of Mettiki's failure to
remove the breaker from service once the defective condition was known by
the electrical examiner.
The judge further concluded that such a
withdrawal order is "implied" because the electrical examination standard
cited requires that potentially dangerous equipment ·be removed from service
with the result that "no abatement time need be allowed in a citation for
this type violation."
The judge sustained the lockout citation. He concluded that the No.
34 breaker is a switch, as that term is used in the standard, that the
lockout device is an integral part.of the switch and that, in violation of
the standard, the switch was not safely installed. 12 FMSHRC 724. He
determined that Mettiki's failure to replace the lockout device constituted
gross negligence since the electrical examiner knew that the switch was
defective. Although he determined that the violation was not of a
significant and substantial nature ("S&S"), he concluded that the violation
was serious for the purpose of determining the civil penalty. 12 FMSHRC
727, 728-29.
The judge also sustained the electrical examination citation which
charged a violation of section 77.502. The judge found that the electrical
examiner knew that the lockout device was defective and knew that the
breaker could be turned on while padlocked. 12 FMSHRC 725. He determined
that the examiner's "attitude and failure to report the lock out defect and
remove the breaker from service demonstrates gross negligence" and that this
negligence was imputable to Mettiki. 12 FMSHRC 725-26. The judge held that
the violation was not S&S bu~ that it was serious. 12 FMSHRC 727-28.

4

Section 77.502 entitled "Electric equipment; examination, testing
and maintenance" provides:
Electric equipment shall be frequently examined, tested,
and properly maintained by a qualified person to assure
safe operating conditions. When a potentially dangerous
condition is found on electric equipment, such equipment
shall be removed from service until such condition is

corrected.

A record of such examinations shall be kept.

763

II.

Disposition of Issues
A.

Section 104(b) Withdrawal order

As stated above, the judge determined that the conditions found by
Inspector George did not constitute an imminent danger, but he modified the
order of withdrawal to a section 104(b) order. The judge erred in so
modifying the withdrawal order in this case.
First, the judge d{d not have the authority to modify the imminent
danger order to a section 104(b) order. Inspector George did not charge
Mettiki with a violation of section 104(b) of the Mine Act. That section
provides, in part:
If ... an authorized representative of the
Secretary finds . . . that a violation described in a
citation issued pursuant to subsection (a) has not
been totally abated within the period of time as
originally fixed therein or as subsequently extended
... he shall determine ~he extent of the area
affected by tne violation and shall promptly issue
an order requiring the operator of such mine or his
agent to immediately cause all persons ... 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.
30 U.S.C. § 814(b). It was the judge who made the specified findings and
who, through modifications of the imminent danger order issued by Inspector
George, in essence issued the section 104(b) order. Commission
administrative law judges are not authorized representatives of the
Secretary and do not have the legal authority to charge an operator with
violations of section 104 of the Mine Act.
Sections 104(h) and lOS(d) of the Mine Act authorize the Commission to
modify an order issued under section 104, and section 107(e) authorizes the
Commission to modify an order issued under section 107(a). The Commission
has concluded that this authority "is conferred in broad terms" and that it
"extends under appropriate circumstances, to modification of 104(d)(l)
withdrawal orders to 104(d)(l) citations." Consolidation Coal Co.,
/.i. FMSHRC 1791, 1794 (October 1982).
In that case, the 104(d) (1) order
contained the requisite special findings (unwarrantable failure and
significant and substantial findings), but the underlying 104(d)(l) citation
had been previously modified to a section 104(a) citation. The Commission
held that the judge had the authority to modify the 104(d)(l) order to a
104(d)(l) citation so long as fair notice was provided and the operator was
not unfairly prejudiced. 4 FMSHRC at 1795. The Commission emphasized,
however, that the necessary special findings were contained in the order as

issued so that "the judge was not adding new findings to 'create' a

764

104(d)(l) citation." 4 FMSHRC at 1796. Thus, allegations contained in an
order of withdrawal, such as the fact of violation or special findings,
survive the vacation of the order. As a consequence, modification of an
order is the appropriate means of assuring that such allegations do survive.
4 FMSHRC at 1794 n. 9; Southern Ohio Coal Co., 10 FMSHRC 138, 143-44
(February 1988).
In this case, modification is not appropriate because the judge added
new findings to "create" a 104(b) order. The findings necessary to
establish an imminent danger are quite different from the findings to
establish a 104(b) order. As discussed below, the allegations contained in
Inspector George's order that survived the judge's determination that no
imminent danger existed do not support a violation of section 104(b). Thus,
the judge's modification was beyond the authority conferred on him under
sections 104(h), 105(d), and 107(e) of the Mine Act.
The modification was also improper for a second, independent reason.
The facts in this case do not support the issuance of a section 104(b)
order. Before a 104(b) order can be issued, an inspector must find that the
violation described in the underlying citation "has not been totally abated
within the period of time originally fixed therein or as subsequently
extended." Inspector Geor_.ge did no't set a time for abatement for the
citations, the citations were abated within one hour of their issuance, and
the parties stipulated that the citations were abated in good faith.
Exhs. G-2, G-3; Tr. 5.
In addition, the Commission has held that in order to establish a
prima
case that a section 104(b) order is valid, the Secretary must
prove that "the violation described in the underlying section 104(a)
citation existed at the time the section 104(b) withdrawal order was
issued." Mid-Continent Resources. Inc., 11 FMSHRC 505, 509 (April 1989).
Here, the citations were quickly abated so that neither the Secretary nor
the judge could have made these findings.
The judge concludes that no abatement time was required in a citation
for this type of violation. But even assuming that the inspector could have
issued a 104(b) order, he did not and the facts do not demonstrate that such
an order can be implied. Moreover, it is not disputed that the violations
were abated within an hour and that Mettiki "demonstrated good faith ... in
attempting to achieve rapid compliance after notification of [the]
violation." 30 U.S.C. § 820(i).
For the reasons set forth above, the judge's modification of the
withdrawal order issued by Inspector George is reversed and the order of
withdrawal is vacated.
B.

Lockout Citation

As a preliminary matter, it is important to recognize that Mettiki was
not required to have the No. 34 breaker locked out at the time of Inspector
·George's inspection. The Secretary's surface electrical standards, Subpart
F-J of Part 77 of 30 G.F.R. (sections
.500-77.906), contain only one

765

standard requiring the use of lockout devices. Section 77.501 provides in
pertinent part that "[d]isconnecting devices shall be locked out and
suitably tagged" by persons performing "electrical work ... on electric
distribution circuits or equipment."
Electrical work was not in progress at the time of MSHA's inspection.
Two miners were making non-electrical repairs to the speed reducer 5 for
the No. 34 belt at the time of the inspection. Mechanical repairs are
covered by section 77.404(c), which provides, in pertinent part, that
"[r]epairs or maintenance shall not be performed on machinery until the
power is off and the machinery is blocked against motion." A lock out of
the equipment or circuit is not required. Thus, when mechanical repairs are
being made to mechanical equipment and there is no danger of contacting
exposed energized electrical parts, MSHA requires only that the power be
turned off and the machinery be blocked against motion.
We now turn to our analysis of the safety standard cited by the
inspector. Section 77.507 provides that "[a]ll electric equipment shall be
provided with switches or other controls that are safely designed,
constructed, and installed." This regulation is exactly the same as the
interim mandatory standard enacted by Congress in section 305(0) of the Mine
Act. 30 U.S.C. § 865(0).- The legislative history of the interim mandatory
standard states:
This section requires that electric equipment
be provided with switches or other safe control[s]
so that the equipment can be safely started,
stopped, and operated without danger of shock, fire,
or faulty operation.
S. Rep. No. 411, 9lst Cong., 1st Sess. 68, reprinted in Senate Subcommittee
on Labor, Committee on Labor and Public Welfare, 94th Cong., 1st Sess.,
Part I Legislative History of the Federal Coal Mine Health and Safety Act of
1969, at 194 (1975) ("Coal Act Legis. Hist.").
In the Program Policy Manual ("Manual"), the Secretary states:
The intent of this section [77.507] is to require
that all control devices be fully enclosed to
prevent exposure of bare wires and energized parts.
Improvised starting methods such as plug and
receptable devices, trolley taps and trolley wire
"stingers" that are used to start or stop electric
5

A speed reducer is a "train of gears, totally enclosed for mine
work, placed between a motor and the machinery which it will drive, to
reduce the speed with which power is transmitted." Bureau of Mines, U.S.
Department of Interior, Dictionary of Mining. Mineral and Related Terms,
1052 (1968). A speed reducer is not electric equipment, thus the use of the
word "power" in this definition refers to mechanical power.

766

motors are examples of noncompliance with this
provision.
Manual, Volume V, Part 77, p. 176.

6

The judge concluded that Mettiki violated the safety standard because
the "lock out device on the No. 34 breaker was not safely installed in that
it did not prevent turning the breaker on when it was padlocked." 12 FMSHRC
at 724. He stated that this condition presented a safety hazard in
violation of section 77.507.
The citation was not issued by the inspector or affirmed by the judge
on the basis that the breaker was not locked out, but rather because the
lockout device did not work. Mettiki argues that the lockout device is not
a "switch or other control" because the cited slide bar was a mechanical
device with no electrical function. As a consequence, it maintains that
section 77.507 did not apply to the malfunctioning slide bar lockout device.
The judge did not hold that the slide bar is a switch but that the
lockout device "is an integral part of the switch, essential to control the
switch when locking out is requir~g. by a safety regulation." 12 FMSHRC 724.
The Secretary's interpret;ation of the term "switch" to include safety
components that do not directly control the flow of electricity advances the
goals of the Mine Act and is not inconsistent with its plain language. We
give weight to the Secretary's interpretation of the standard in this case
because it is reasonable, consistent with the purposes of the Mine Act and
is supported by substantial evidence. 7 We conclude that the term switch
includes the slide bar lockout device.
The next issue is whether Mettiki violated the cited standard.
Mettiki argues that this safety standard is designed to protect miners from
the hazards associated with an electrically defective switch. It points to
the Senate Report, which states that the standard requires that equipment be
provided with switches "so that the equipment can be safely started,
6

The title page of the Manual states that the "MSHA Program Policy
Manual is a compilation of the Agency's policies on the implementation and
enforcement of the Federal Min~ Safety and Health Act of 1977 and Title 30
Code of Federal Regulations and supporting programs." The D.C. Circuit has
stated that while the Manual may not be binding on the agency, "[w]e
consider the MSHA Manual to be an accurate guide to current MSHA policies
and practices." Coal Employment Project v. Dole, 889 F.2d 1127, 1130 n.5
(D.C. Cir. 1989).
7

The legislative history of the Mine Act provides that "the
Secretary's interpretation of the law and regulations shall be given weight
by both the Commission and the courts." S. Rep. No. 181, 95th Cong., 1st
Sess. 49 (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 637 (1978).

767

stopped, and operated without danger of shock, fire, or faulty operation."
Coal Act Le~is. Hist. at 194. It maintains that it is undisputed that the
switch could be turned on and off safely without presenting any danger of
shock, fire or faulty operations. It further argues that since the
Secretary's regulations do not require that a breaker be equipped with a
lockout device and the failure to have such a device would not violate
section 77.507, then having a modified lockout device cannot be deemed to
violate the safety standard. Finally, it contends that the Secretary's
Manual supports its interpretation because the Manual states that the
"intent" of the standard·is to require that all switches be fully enclosed
to prevent exposure of energized parts and to prevent the use of improvised
starting methods.
The Secretary argues that because the standard requires that switches
be safely installed, the improper and unsafe installation of the No. 34
breaker violated the standard. She contends that the No. 34 breaker was not
"safely installed" in violation of section 77.507 because the modification
that was made to the slide bar "negated the operation of the safety device."
Sec. Br. 7. She states further that the Manual is only a guide for
inspectors and does not discuss every hazard to which the standard applies.
The word "install" means "to set up for use or service." Webster's
Third International Dictionary (Unabrid~ed) at 1171 (1986). The No. 34
breaker was installed by physically attaching it to the panel and connecting
the electrical conductors. Part of the installation included, in this
instance, modifying the lockout device. Mettiki states that it was safely
installed because, as an electrical device, it worked as it was designed.
The Secretary .maintains that it was not safely installed because the lockout
device on the switch did not function as it was designed.
Section 77.501 requires that electric equipment be locked out whenever
electrical work is performed. Lockout devices are essential to comply with
the standard. Thus, switches to be used to lock out electric equipment must
be equipped with functioning lockout devices so that the required lockout
can be undertaken. It is not unreasonable for MSHA to be concerned about
defective lockout devices on electric circuits because miners' lives are at
risk. It is also not unreasonable for the Secretary to interpret section
77.507 to require that pertinent switches be installed with functioning
lockout devices.
Mettiki argues, however, that the standard is unenforceably vague as
applied to the facts of this case, because it was not given fair warning of
the conduct required. In instances of broadly worded standards, the
Commission has determined that adequate notice is provided if the conduct at
issue is measured against what a "reasonably prudent person, familiar with
the mining industry and the protective purpose of the standard, would have
provided in order to meet the protectioncintended by the standard."
~' Canon Coal Co., 9 FMSHRC 667, 668 (April 1987); Quinland Coals. Inc.,
9 FMSHRC 1614, 1617-18 (September 1987). A standard cannot be "so
incomplete, vague, indefinite or uncertain that [persons] of common
intelligence must necessarily guess at its meaning and differ as to its
application." Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (December

768

1982)(citation omitted). In interpreting and applying broadly worded
standards, the appropriate test is not whether the operator had explicit
prior notice of a specific prohibition or requirement, but whether a
reasonably prudent person familiar with the mining industry and the
protective purposes of the standard would have recognized the specific
prohibition or requirement of the standard. Ideal Cement Company,
12 FMSHRC 2409, 2416 (November 1990).
Mine operators, including Mettiki, are on notice that electric
circuits and equipment must be locked out whenever electrical work is
performed. Operators are also on notice that electric equipment must be
equipped with safely installed switches. In addition, operators should know
that switches used to lock out circuits and equipment must be installed with
lockout devices that function properly. A reasonably prudent person would
have recognized that the standard required that the No. 34 breaker, a switch
used by Mettiki to lock out the belt motor circuit, .be equipped with a
functioning lockout device and that the improperly installed lockout device
on the switch was in violation of section 77.507.
Mettiki had designated the No. 34 breaker as the "disconnecting
device" to be locked out when required by section 77.501. It is clear that
the device was defective._ Consequently, a reasonably prudent person would
be put on notice that the protective purpose of the standard required that
the defective lockout device be replaced or repaired.
We now turn to the question of whether the violation was caused by
Mettiki's gross negligence. The judge reached the following conclusion with
respect to Mettiki's negligence:
The surface electrician, who was also the electrical
examiner, was responsible for the safety of this
equipment. He knew about the defect but did not
repair it. His continued failure to replace the
lock out device constituted gross negligence, in
violation of§ 77.507.
12 FMSHRC at 724.
Bowman is the hourly employee who was assigned to conduct the monthly
electrical inspections. He knew that the slide bar of the switch had been
modified, but it is difficult to determine from the record when he first
became aware that this modification could allow the lockout device to be
bypassed. His testimony is ambiguous. There is evidence in the record to
support a finding that, at the time the citation was issued, he did not know
that the lockout device could be
and there is evidence to support
the
made by the judge.
The Commission is bound by the substantial evidence test when
reviewing an administrative law judge's decision. 30 U.S.C. § 823(d)(2)
(A)(ii)(I). Donald F. Denu v. Amax Coal Co., 12 FMSHRC 602, 610 (April
1990). Substantial evidence means "such relevant evidence as a reasonable
mind
accept as adequate to support a conclusion. 11 Consolidation

769

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Nevertheless, "substantiality
of evidence must take into account whatever in the record fairly detracts
from its weight." Universal Camera v. NLRB, 340 U.S. 474, 488 (1951).
We conclude that substantial evidence supports the judge's conclusion
that Bowman knew the lockout device could be defeated. It appears from his
testimony that while he knew the lockout device could be defeated, he did
not believe that this defect created a safety hazard because turning on the
breaker would not energize the system. The record establishes that "many
independent actions would be required to cause injury due to the defective
lock out device." 12 FMSHRC 726. The judge concluded that such independent
actions would include 1) ignoring the warning tag and padlock; 2) turning
the breaker on; 3) reactivating the emergency pull cord on No. 34 belt; 4)
starting the two outby belts in order to start No. 34 belt; and 5) ignoring
the sirens that would sound before a belt is started." 12 FMSHRC 727. In
addition, Bowman stated that nobody would turn on a ·breaker with a lock and
danger tag on it unless "they mean to do you some harm to start with." Tr.
114, 125. Thus, the record indicates that Bowman knew that a miner could
purposefully bypass the lockout device on the breaker, but that he did not
report it because he did not think it would cause any safety problems.
11

The Commission has not precisely defined what constitutes ordinary,
high or gross negligence. Typical definitions of gross negligence include:
"the intentional failure to perform a manifest duty in reckless disregard of
the consequences;" "an act or omission respecting legal duty of an
aggravated character as distinguished from a mere failure to exercise
ordinary care;" "indifference to present legal duty and to utter
forgetfulness of legal obligations;" and "a heedless and palpable violation
of legal duty." Black's Law Dictionary (5th ed), 931-32 (1979). In Eastern
Associated Coal Corp., 13 FMSHRC 178, 187 (February 1991), the Commission
stated:
"Highly negligent" conduct involves more than
ordinary negligence and would appear, on its face,
to suggest unwarrantable failure. Thus, if an
operator has acted in a highly negligent manner with
respect to a violation, that suggests an aggravated
lack of care that is more than ordinary negligence.
The facts in this case do not present highly negligent conduct or
gross negligence. Mettiki modified the slide bar on the switch in order to
enable the breaker to be locked out. It required the breaker to be locked
out whenever work was being performed on the belt even though the Secretary
only requires a lock out when electrical work is being performed. A number
of independent steps are required to energize the No. 34 belt, including the
resetting of the emergency pull cord at the belt. The modified lockout
device functioned, in that a lock could be placed on the device to lock it
out. The lockout device could be purposefully defeated, however, by
jiggling the device while turning the switch.
The electrical examiner knew that the device could be defeated, but

770

apparently he believed that nobody else knew it. He also knew that turning
on the breaker would not energize the circuit because other miners are
required to take independent actions at other locations to energize the
system.
The record does not indicate that any electrical work requiring the
switch to be locked out was performed on the circuit during the period of
time that the modified lockout device was in place. The Secretary did not
attempt to prove that Mettiki relied upon the modified lockout device to
comply with the lockout requirements of section 77.501. Thus, as far as the
record before us discloses, the modified lockout device was used only in
situations where there was no legal duty to lock out the circuit.
Although
the Secretary was not required to prove a violation of section 77.501 in
order to establish a violation in this case, the fact that she did not show
that Mettiki relied upon the defective lockout device to fulfill its
obligations under the Mine Act is a factor to be considered when determining
the degree of negligence.
Moreover, the language of section 77.507, when read together with the
Secretary's interpretation in the Manual, "made it difficult and confusing
for a reasonable operator to know the true·· standard of care imposed by
[section 77.507], and, hence, whether it was in a state of violation or
compliance." King: Knob Coal Co., 6 FMSHRC 1417, 1422 (June 1981). The
Manual states that the intent of the standard is to require that switches be
enclosed "to prevent exposure of bare wires and energized parts." Manual,
Volume V, Part 77, p. 176. Although Mettiki did not show actual reliance on
the Manual, "confusion caused by the Manual interfered with [Mettiki's]
ability to ascertain the true standard of care and therefore placed it in a
position where it could have believed it was in compliance." King: Knob,
6 FMSHRC at 1422. Thus, even though Bowman knew that the lockout device
could be defeated, he could have reasonably believed that the defect was not
out of compliance with the safety standard or the Mine Act. Penalizing
Mettiki with a finding of gross negligence for confusion caused by MSHA
would be "unfair and harsh." Id.
We conclude that the violation of section 77.507 was caused by
Mettiki's ordinary negligence. Mettiki was negligent in failing to test the
lockout device at the time the new breaker was installed to determine if it
functioned properly. In addition, Bowman was negligent in failing to report
the defect to Mettiki and in faiiing to replace or repair the breaker after
he discovered the defect.
Based on the above considerations, we vacate the judge's gross
negligence finding and remand the proceeding to the judge to assess an
appropriate penalty.
G.

Electrical Examination Citation

Mettiki did not properly seek review of the judge's holding that it
violated the requirements of section 77.502. Citation No. 3110340 alleges
that the monthly electrical examinations were not being conducted properly
because the examiner did not report that the lockout device could be

171

bypassed.

The judge upheld the citation.

In its petition for discretionary review, Mettiki seeks review of that
portion of the'judge's decision "modifying the operator's negligence from
moderate to high with respect to§ 104(a) Citation No. 3110340." PDR at
pg. 1. The petition does not elsewhere seek review of the judge's
determination that Mettiki violated section 77.502. Review by the
Commission is limited to issues raised by the petition for discretionary
review, 30 U.S.C. § 823(d)(2)(A)(iii), or directed for review by the
Commission on its own motion, 30 U.S.C. § 823(d)(2)(B). Consequently, this
issue is not before the Commission.
Odell Maggard v. Chaney Creek Coal
Co., 9 FMSHRC 1314, 1315 n.2 (August 1987).
With respect to Mettiki's negligence, the judge held that "Mr.
Bowman's attitude and failure to report the lock out defect and remove the
breaker from service demonstrates gross negligence, in violation of
§ 77.502." 12 FMSHRC at 725. The judge's finding of negligence is based on
his finding that Bowman knew about the defect and his belief that Bowman's
actual knowledge established gross negligence. For the reasons· discussed
with respect to the lockout citation, the judge's conclusion that the
violation was caused by Mettiki's gross negligence is reversed. Given the
fact that Bowman could have reasonably believed that the modification made
to the lockout device did not violate section 77.507, his failure to report
the defect does not constitute gross negligence. King Knob, 6 FMSHRC at
1422. Fe conclude that Bowman's failure to report the defect and remove it
from service was thus the result of his ordinary negligence.
The judge further held that Bowman's negligence could be imputed to
Mettiki, because he was Mettiki's "designated person to conduct electrical
examinations of surface electrical equipment." 12 FMSHRC at 726. Mettiki
argues that the judge erred as a matter of law. For the reasons set forth
in Rochester & Pittsburgh Coal Co., 13 FMSHRC 189 (February 1991), the
judge's conclusion that Bowman's negligence is imputable to Mettiki is
affirmed. Consequently, we vacate the judge's gross negligence finding and
remand the proceeding to the judge to assess an appropriate penalty.
(D)

Civil Penalty.

Mettiki asserts that the judge did not properly consider the six
statutory criteria set forth in section llO(i) when he assessed the civil
penalties. Specifically, it alleges that he ignored the fact that the
parties stipulated that both violations were abated in good faith and that
he erroneously determined that the violations were the result of its gross
negligence.
The judge did not discuss the good faith criterion of section llO(i)
in assessing the civil penalties. 30 U.S.C. § 820(i). In modifying the
imminent danger order to a failure to abate order, the judge apparently
determined that the violations were not abated in good faith. The parties
stipulated that the violations were abated in good faith. Tr. 5; Sec. Br.
to Judge at 2. The evidence supports the stipulation.

772

Section llO(i) requires the Commission to consider all six criteria
set forth in that section "iri assessing civil monetary penalties." 30
U.S.C. § 820(i). See, Pyro Mining Co. v. FMSliRC, 3 BNA MSHC 2057, 2059, 785
F.2d 310 (Table) (6th Cir. 1986); Sellersburg Stone Co. y. FMSHRC, 736 F.2d
1147, 1152-53 (7th Cir. 1984). The judge erred in failing to consider and
enter findings with respect to the good faith criterion. We conclude that
Mettiki abated both violations in good faith. We remand this proceeding to
the judge to assess appropriate civil penalties.
III.

Conclusion
For the foregoing reasons, we reverse the judge's conclusion that
Mettiki violated section 104(b) of the Mine Act and we vacate the order of
withdrawal. We affirm the judge's determination that Mettiki violated
section 77.507, but we reverse his gross negligence finding. We also
reverse the judge's finding that Mettiki's violation of section 77.502 was
the result of its gross negligence. We hold that both violations were the
result of Mettiki's ordinary negligence and that Mettiki abated these
violations in good faith. Accordingly, we remand this proceeding for
reconsideration of appropriate civil penalties.

J yce A. Doyle, Commissi

Arlene Holen, Commissioner

L. Clair Nelson, Commissioner

773

Distribution
Thomas C. Means, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Colleen A. Geraghty, E~q.
Office of the Solicitor
U~S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge William Fauver
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

774

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

May 23, 1991

FLORENCE MINING COMPANY
Docket Nos. PENN 91-347-R

v.

through

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

PENN 91-432-R

and

HELVETIA COAL COMPANY
Docket Nos. PENN 91-226-R

v.

through

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

PENN 91-346-R

and

KEYSTONE COAL MINING
CORPORATION
Docket Nos. PENN 91-451-R

v.

through

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

PENN 91-626-R
PENN 91-644-R
through

PENN. 91-701-R
and

ROCHESTER AND PITTSBURGH
COAL COMPANY
Docket Nos. PENN 91-627-R

v.

through

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

PENN 91-638-R

and

CYPRUS EMPIRE CORPORATION
Docket No. WEST 91-327-R

v.

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

775

and
TWENTYMILE COAL COMPANY

v.

Docket Nos. WEST 91-328-R
through
WEST 91-334-R

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
and
CYPRUS SHOSHONE COAL CORPORATION

v.

Docket No. WEST 91-335-R

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
and
CYPRUS-PLATEAU MINING
CORPORATION
Docket Nos. WEST 91-336-R
through
WEST 91-346-R

v.

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

On }fay 9, 1991, counsel for the Secretary of Labor filed with the
Commission a Petition for Interlocutory Review in the above matters. See 29
C.F.R. § 2700.74. The Secretary has subsequently filed a Motion to Dismiss
her Petition. As grounds for approval of voluntary dismissal, the Secretary
indicates that the Commission Administrative Law Judge to whom these matters
have recently been assigned has issued an Order Staying Discovery that
essentially grants the Secretary the relief" sought in her Petition. S. Mot.
at 2. Upon consideration of the Secretary's request to withdraw her Petition,
it is granted and this interlocutory proceeding on review is dismissed.
For the Commission:

Distribution
Carl C. Charneski, Esq.
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Boulevard, Suite 400
Arlington, Virginia 22203
R. Henry Moore, Esq.
Buchanan Ingersoll, P.C.
USX Tower, 57th Floor
600 Grant Street
Pittsburgh, Pennsylvania

15219

Robert Stropp, Esq.
United Mines workers of America
900 15th Street, N.w.
Washington, D.C. 20005
Administrative Law Judge James A. Broderick
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike
Falls Church, Virginia 22041

777

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

May 23, 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. wEVA 90-200-M

JAMES D. McMILLEN,
Employed by Shillelagh
Mining Company
BEFORE:

Backley, Acting Chairman; Doyle, Holen, and Nelson, Commissioners

This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"). The
case involves the Secretary of Labor's allegations, pursuant to section llO(c)
of the Mine Act, 30 U.S.C. § 820(c), that James D. McMillen, as an agent of
the corporate mine operator, Shillelagh Mining Company ("Shillelagh"),
knowingly authorized or carried out nine violations of mandatory standards at
the Shillelagh mine. On October 19, 1990, Commission Chief Administrative Law
Judge Paul Merlin entered an Order of Default against Mr. McMillen for failure
to answer the Secretary's Petition for Assessment of Civil Penalty and the
judge's Order to Show Cause. The judge assessed the civil penalty of $6,000
proposed by the Secretary. The Commission has received a letter from
McMillen's counsel requesting reopening of this matter. For the reasons that
follow, we vacate the default order and remand this case for further
proceedings.
On May 30 and June 1, 1989, the Department of Labor's Mine Safety and
Health Act ("MSHA") issued one citation and eight withdrawal orders to
Shillelagh, pursuant to section 104(d) of the Act, 30 U.S.C. § 814(d), for
nine alleged violations of mandatory standards at its mine, one involving a
fatal roof fall accident. On April 30, 1990, MSHA issued McMillen a
notification of a proposed civil penalty of $6,000 for the nine violations,
that, as Shillelagh's agent, he had personally authorized or carried
out the violations. McMillen filed a "Blue Card" request for a hearing.
However, he did not file an answer to the Secretary's subsequent civil penalty
petition, nor did he respond to the judge's August 3, 1990 Order to Show
Cause.
On May 6, 1991, some six months after the judge's default order, the
Commission received from McMillen's counsel a letter seeking the reopening of
this matter. Counsel requests that the Commission treat the letter as a
petition for discretionary review. The letter indicates a number of serious
personal problems that allegedly led to McMillen's failure to file timely
responsive pleadings in this matter and requests relief from default.

778

The judge's jurisdiction in this matter terminated when his default
order was issued on October 19, 1990. 29 C.F.R. § 2700.65(c). McMillen did
not file a timely petition for discretionary review of the judge's decision
within the 30-day period prescribed by the Mine Act. 30 U.S.C. § 823(d)(2)
(A)(i); see also 29 C.F.R. § 2700.70(a). Nor did the Commission direct review
on its own motion within this 30-day period. 30 U.S.C. § 823(d)(2)(B). Thus,
under the Act, the judge's decision became a final decision of the Commission
40 days after its issuance. 30 U.S.C. § 823(d)(l). Under these circumstances, we deem McMillen's submission to be a request for relief from a final
Commission order, incorporating a late-filed petition for discretionary
review. See, e.g., Transit Mixed Concrete Co., 13 FMSHRC 175, 176 (February
1991). We conclude that the record supports the reopening of this matter, and
we proceed to consider McMillen's request for substantive relief.
Relief from a final Commission judgment on the basis of mistake,
inadvertence, surprise, or excusable neglect is available to a party under
Fed. R. Civ. P. 60(b)(l) & (6). 29 C.F.R. § 2700.l(b) (Federal Rules of Civil
Procedure apply, "so far as practicable" and "as appropriate," in absence of
applicable Commission rules). In appropriate circumstances, a party's
personal problems may form the basis for relief under Rule 60(b). Here, it is
asserted that McMillen's serious personal problems adversely affected his
ability to comply with
filing responsibilities in this matter. It appears
that for a period of time in this matter McMillen also may have proceeded
without benefit of counsel. The filing delay is serious but we are mindful of
the consideration that this is a section llO(c) proceeding involving the
proposed assessment of civil penalties against McMillen personally.
We conclude that McMillen may have set forth a colorable excuse for his
failure to respond in a timely manner to the Secretary's civil penalty
petition and the judge's Order to Show Cause. We are unable to evaluate the
ultimate merits of McMillen's assertions on the basis of the present record,
but will permit McMillen to present his position to the judge, who shall
determine whether final relief from the default order is warranted. See.
~. A.H. Smith Stone Co., 11 FMSHRC 2146, 2147 (November 1989).

779

Accordingly, we grant the Petition for Discretionary Review, vacate the
default order, and remand this matter for proceedings consistent with this
order.
/}
_/(1'

g~~~/U;f"t('//>tl!~ _
Richard V. Backley, Acting Chairman ~

/)

J .·

Arlene Holen, Commissioner

'~
I I

.

v~·J_,0~
L. Clair Nelson, Commissioner

Distribution
J. Randolph Query, Esq.
5130 HacCorkle Avenue, S.E.
Charleston, West Virginia 25304

J.
Smith,
Off ice of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Chief Administrative Law Judge Paul ~1erlin
Federal Mine Safety and Health Review Commission
1730 K Street ~w. 6th Floor
Washington, D.C. 20006

780

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

May 29, 1991
SECRETARY OF lABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 91-14-M

v.

LLOYD LOGGING, INC.

BEFORE:

Backley, Acting Chairman; Doyle, Holen and Nelson, Commissioners

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On April 3,
1991, Commission Chief Administrative Law Judge Paul Merlin issued an Order
of Default finding respondent Lloyd Logging, Inc. ("Lloyd") in default for
failure to answer the Secretary of Labor's civil penalty proposal and the
judge's order to show cause. The judge assessed Lloyd the civil penalty of
$1,411 proposed by the Secretary. For the reasons explained below, we
vacate the judge's default order and remand for further proceedings.
An inspector of the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued Lloyd 14 citations alleging violations of
various
regulations. Upon preliminary notification by MSHA of the
civil penalties proposed for these alleged violations, Lloyd filed a "Blue
Card" request for a hearing before this independent Commission. On November
15, 1990, counsel for the Secretary filed a proposal for penalty assessment.
When no answer to the penalty proposal was filed, Judge Merlin issued an
order to show cause on January 17, 1991. No response was received. On
April 3, 1991, the judge issued an order finding Lloyd in default for
failure to answer the Secretary's civil penalty proposal and his show cause
order.
By letter to Judge Merlin, filed April 18, 1991, Lloyd states that it
understood the case to have been settled in December 1990. Lloyd attaches a
letter from the Secretary, dated November 27, 1990, which proposed
settlement of the case for a total of $837 in penalties, striking one
citation, and indicating a willingness on the part of the Secretary to
prepare the necessary documents for submission to the judge to request
settlement approval. Lloyd also attaches a letter dated December 7, 1990,
indicating its acceptance of the proposal and requesting the Secretary to
proceed with the necessary documents. On May 13, 1991, the Secretary filed

781

with Judge Merlin a letter stating that a misunderstanding had occurred when
the parties reached settlement. The Secretary states her belief that Lloyd
had concluded that the Secretary would take care of any necessary filings
for settlement approval. The Secretary requests that Lloyd be given an
opportunity to proceed in this case and that the order of default be
vacated.
The judge's jurisdiction in this proceeding terminated when his
default order was issued on April 3, 1991. 29 C.F.R. § 2700.65(c). Due to
clerical inadvertence, the Commission did not act on Lloyd's April 18 papers
within the required statutory period for considering requests for discretionary review and the judge's decision became a final decision of the
Commission 40 days after its issuance. 30 U.S.C. § 823(d)(l). We conclude
that the record supports reopening of this matter, and we proceed to
consider the parties' requests for substantive relief.
Relief from a final Commission judgment or order on the basis of
inadvertence, mistake, surprise or excusable neglect is available to a party
under Fed. R. Civ. P. 60(b)(l) & (6). 29 G.F.R. § 2700.l(b)(Federal Rules
of Civil Procedure apply, "so far as practicable" and "as appropriate," in
absence of applicable Commission n(Les).
~. Danny Johnson v. Lamar
. Mining Co. , 10 FMSHRG 506,- 508 (April 1988) . Lloyd and the Secretary agree
that the parties reached settlement of this matter prior to issuance of the
·judge's default order, and that Lloyd's default resulted from his belief
that the Secretary was to file the necessary settlement approval papers. We
conclude that this matter should be remanded to the judge, in order to
afford the parties the opportunity to present their settlement to him for
his review. See, ~, Transit Mixed Concrete Company, 13 FMSHRC 175
(February 1991).
For the foregoing reasons, we vacate the judge's default order and
remand this matter to the judge for appropriate proceedings.·

/J

,/_/A

~~/~~

Richard V. Backley, Acting Chairmak

~x_,L/ /l. tS~ //~

L. Clair Nelson, Commissioner

782

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 11991
SOUTHERN OHIO COAL COMPANY,
contestant
v.

CONTEST PROCEEDING
Docket No. WEVA 90-287-R
Order No. 3111174; 7/10/90

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

Martinka No. 1 Mine

DECISION
Appearances:

Rebecca J. Zuleski, Esq., FURBEE, AMOS, WEBB &
CRITCHFIELD, Morgantown, West Virginia, for the
contestant;
Glenn M. Loos, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a Notice of Contest filed by the
contestant pursuant to section 105 of the Federal Mine Safety and
Health Act of 1977, challenging the legality of section 104(b)
Order No. 3111174, issued by an MSHA inspector at the captioned
mine on July 10, 1990. A hearing was held
Morgantown,
West Virginia, on March 21, 1991, and the parties appeared and
participated fully there. They were also afforded an opportunity
to
posthearing briefs.
Issue
The principal issue
case is whether or not the
contested order was properly issued and whether.or not the
acted reasonably in not extending the abatement time.
Applicable statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 U.S.C. 801 et seq.

783

2.

Section 104(b) of the Act, 30 u.s.c. § 814(b).

3.

Commission Rule, 20 C.F.R. § 2700.1 et seq.

Stipulations
The parties -stipulated to the following (Exhibits AIJ-1 and
AIJ-2):
1. Southern Ohio Coal Company is owner and
operator of the Martinka Mine which is the subject of
this proceeding.
2. Operations of the Martinka Mine are subject to
the Mine, Safety and Health Act .of 1977, as amended,
30 U.S.C. § 801
seg.
3. The Administrative Law Judge has jurisdiction
to hear and decide this case.
4. The Federal Mine Safety and Health Inspector
Charlie Thomas was acting in his official capacity when
he issued Citation Number 3306619 and its
modifications.
5. A true copy of Citation Number 3306619 and its
modifications were served upon the Mine Operator or its
agent as required by the Act.
6.
Federal Mine Safety and Health Inspector Frank
Bowers was acting in his official capacity when he
issued Order Number 3111174 to Martinka Mine on
July 10, 1990.
7o
A true copy of Order Number 3111174 was served
upon the Mine Operator and/or its agent as required by
the Act.

8. The parties are in agreement that the issue to
be established at the hearing is if a safety and/or
health hazard was present due to the condition of the
steel spool(s)/drum(s) on the Bucyrus-Erie dragline,
Model Number 30-B, Serial Number H.D. 125739, owned by
Bunner Construction Company and leased to Southern Ohio
Coal Company-Martinka Mine.
In light of said decision
regarding said issue, if the Section 104(b}, Order
Number 3111174 was properly or improperly issued by
MSHA Inspector Frank Bowers to Southern Ohio Coal
Company-Martinka Mine on July 10, 1990.

784

Discussion
On June 11, 1990, MSHA Inspector Charles Thomas issued a
section 104(a) "S&S" Citation No. 3306619, charging the
contestant with an alleged violation of mandatory safety standard
30 C.F.R. § 77.404. The cited condition or practice is described
as follows:
on the surface the Bucyrus Erie dragline has two
(2) cable (wire rope) spools cut into with a cutting
torch. The wire rope for the left spool has a mashed
place with severed wires and a cable strand of wire
partially cut into. The machine was removed from
service by Richard Haught, surface supt.
Inspector Thomas fixed the abatement time as a:oo a.m.,
June 13, 1990. However, on June 15, 1990, he extended the
abatement time to a:oo a.m., June 18, 1990, and the justification
for this extension states as follows:
A new wire rope has-·been installed on the left
spool of the Bucyrus Erie dragline. There is a
question as to whether the cable (wire rope) spools
needs to be changed out at this time. Therefore,
additional time is granted to investigate this matter.
On June 19, 1990, Inspector Thomas modified the citation and
extended the abatement time to 8:00 a.m., June 28, 1990.
Although the inspector makes reference to "Citation No. 3306620,
issued 6/1/90," he was in fact modifying Citation No. 3306619.
The modification notice reflects that the abatement time was
extended so that the contestant could correct the following
conditions which were observed by the inspector and included in
the modified notice~
The steel rope that operates the gantry has
broken wires at 2 locations. The Rope is
pitted and has flat places. The gantry is a
5/8 inch rope and a 3/4 inch sheave.
The graved (sic) drums were so badly worn
that the cable would not spool properly.
Load line drum and bucket drum.
Bolts were being used in lieu of pins to
secure the bucket. One of the bucket
clevis (sic) pin is backed out and one
badly worn for the bucket line.
Wedges are not used where wire roncs are
terminated on the bucket.
Dump cable on
bucket has 3 severed strands of wire.

785

Sheave wheel for bucket trip has the center
bushing missing and securing pin badly worn.
Cat tram chains have numerous keep (sic)
missing on both sides.
On June 29, 1990, Inspector Thomas extended the abatement
time to 8:00 a.m., July 9, 1990, for the following reasons:
"The
operator has parts on order to repair the Bucyrus Erie dragline,
and should be on mine site the next few days, and repairs
completed within a week once the parts are received."
On July 10, 1990, MSHA Inspector Frank D. Bowers, issued a
section 104(b) Withdrawal Order No. 3111174, citing a violation
of mandatory safety standard 30 C.F.R. § 77.404, and ordering the
withdrawal of the dragline in question. The inspector made
reference to, and relied on, the previously issued section 104(a)
Citation No. 3306619, issued on June 11, 1990, and his order
states as follows:
"Bunner Construction who owns and leases the
Bucyrus Erie dragline to the Martinka #1 Mine will repair all the
conditions found defective on the dragline except for the wire
spool drums."
As part of its contest, the contestant took the position
that the condition of the dragline wire spool drums did not
result in the dragline being in an unsafe condition. The
contestant noted that although the inspector cited a violation of
section 77.404, it presumed that he intended to cite a violation
of section 77.404(a}, which provides as follows:
"Mobile and
stationary machinery and equipment shall be maintained in safe
operating condition and machinery or equipment in unsafe
condition shall be removed from service immediately."
In its answer, respondent MSHA took the position that the
order was properly issued and that it nrepresents a violation of
a mandatory safety standard.n
MSHA Inspectors Thomas and Bowers were unavailable for the
hearing. Mr. Thomas was in the hospital, and Mr. Bowers was
attending a training session out of town. MSHA presented the
testimony of Inspector Edwin w. Fetty, who accompanied Inspector
Thomas during his inspections of June 18-20, and 29, 1990, in
support of its case. The contestant presented the testimony of
the mine accident prevention officer Paul S. Zanussi, and expert
witness Frank Greb in support of its case.
With regard to the initial June 11, 1990, Citation
No. 3306619, issued by Inspector Thomas, the evidence adduced at
the hearing reflects that the two cited dragline cable spools
were not "cut into with a cutting torch." The evidence
establishes that the drum was cut into two separate pieces by the
manufacturer, and then re-assembled according to the appropriate
specifications. Inspector Fetty agreed that the separation and

786

reassembly of the drum did not render it unsafe, and there is no
evidence to tne contrary. Accordingly, the only alleged
violative condition with respect to the June 11, 1990, citation
is that stated in the second sentence with respect to the
condition of the wire rope.
With regard to the modified citation issued by Mr. Thomas on
June 19, 1990, the evidence establishes that at the time the
disputed section 104(b) order of July 10, 1990, was issued by
Inspector Bowers, all of the enumerated cited conditions, except
for the alleged condition of the drum, were corrected by the
contestant.
Subsequent to the hearing, and after the close of the record
in this matter, the parties initiated a conference with me and
advised me that they reached a mutually agreeable settlement of
this matter, and they filed a joint motion seeking approval of
their proposed settlement disposition of the case. With regard
to the settlement, the parties agree that the contested section
104(b) order should be vacated, and the contestant has agreed to
withdraw its contest. The parties further agree that the
modified citation issu€d by Inspector Thomas on June 19, 1990,
will be further modified to delete the following alleged
condition:" The grooved drums were so badly worn that the cable
would not spool properly. Load line drum and bucket drum." The
contestant agrees to accept the modified citation and to pay a
civil penalty assessment of $375, in satisfaction of the
citation. Although a formal civil penalty proceeding has yet to
be initiated and finalized, and jurisdiction has not vested in
the Commission, the parties wish to memorialize their mutual
understanding and agreement with respect to the civil penalty
proceeding.
Conclusion
After careful review and consideration of the pleadings, the
testimony and evidence adduced at the hearing, and the motion
filed by the part
with respect to the proposed settlement
disposition of this matter, I conclude and find that it is
reasonable and in the public interest. Accordingly, the motion
IS GRANTED, and the settlement IS APPROVED.
ORDER
IT IS ORDERED that:
1. The modified section 104(a) citation
No. 3306619, issued by Inspector Charles Thomas on
June 19, 1990, is further modified in accordance with
the agreement reached by the parties to delete any
reference to the alleged violative condition of the
cited dragline drums.

787

2. Southern Ohio Coal Company will accept
responsibility and liability for the aforementioned
section 104{a) modified citation, as further modified
pursuant to the agreement of the parties.
3. Section 104(b) Order No. 3111174, issued by
Inspector Frank D. Bowers on July 10, 1990, IS VACATED.
4. The contestant's motion to withdraw its
contest IS GRANTED, and this matter IS DISMISSED.

Judge
Distribution:
Rebecca J. Zuleski, Esq., FURBEE, AMOS, WEBB & CRITCHFIELD,
Suite 4, 5000 Hampton Center~_ Morgantown, WV 26505
(Certified Mail)
Glenn M. Loos, Esq., Office of the Solicitor, U.S. Department of
Labor, Ballston Towers #3, 4015 Wilson Boulevard, Suite 516,
Arlington, VA 22203 (Certified Mail)
/fb

788

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

22041

MAY 31991
CONTEST PROCEEDING

CONSOLIDATION COAL COMPANY,
Contestant

v.

Docket No. WEVA 90-296-R
Order No. 3314669; 8/1/90

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

Blacksville No. 1 Mine

CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 91-48
A.C. No. 46-01867-03a65

v.
Blacksville No. 1 Mine
CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Before~

Page H. Jackson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Secretary of Labor (Secretary);
Walter J. Scheller, Esq., Pittsburgh, Pennsylvania, for Consolidation Coal Company (Consol)

Judge Broderick

STATEMENT OF THE CASE
Consol filed a notice of contest challenging a withdrawal
order issued under section 104(b) of the Mine Act on July 31,
1990, for failure to abate a citation issued under section 104(a)
on the same day.
The Secretary seeks a civil penalty for the
violation alleged in the citation. The civil penalty docket
includes three other citations for which penalties are sought.
Prior to the commencement of the hearing in this case, the
Secretary moved on the record for approval of a settlement
concerning the three violations:
Citation 3314062 alleges a
violation of 30 C.F.R. § 75.1003(c) because of inadequate
guarding of a trolley wire.
It was assessed at $355. The
parties propose that the significant and substantial finding.be
deleted, and that the penalty be reduced to $213; Consol's portal
buses have a covered, insulated top, and it is unlikely that the
failure to guard the trolley wire would result in injury.

789

Citation 3314064 charges a violation of 30 C.F.R. § 75.202(a).
It was assessed at $720, and Consol agrees to full payment.
Citation 3314072 alleges a .violation of 30 C.F.R. § 75.1003(c).
It was assessed at $265. The parties propose that the
significant and substantial finding be deleted and that the
penalty be reduced to $159.
Pursuant to notice, the cases were consolidated and called
for hearing in Morgantown, West Virginia, on April 18, 1991.
Raymond Ash and Joseph Migaiolo testified on behalf of the
Secretary. John Weber, Wen H. Su, Willis Fansler, and John
Morrison testified on behalf of Consol. The record was kept open
for possible rebuttal evidence by the Secretary.
On April 23, 1991, the Secretary filed a motion to approve a
settlement with respect to the remaining violation and the
contest proceeding. Consol agrees to pay in full the proposed
penalty of $828, and the Secretary agrees to a vacation of the
section 104(b) withdrawal order. I have considered the motion in
the context of the testimony at the hearing, and in the light of
the purposes of the Mine Act,,and conclude that it should be
approved.
Accordingly, IT IS ORDERED:
1. The Notice of Contest in Docket No. WEVA 90-296-R is
GRANTED and order of withdrawal 3314669 issued July 31, 1990, is
VACATED.
2. Within 30 days of the date of this decision, Consol
shall pay to the Secretary of Labor, the following civil
penalties:
CITATION

AMOUNT

3314062
3314064

$ 213
720
159
828
$1920

3314072
3314665
TOTAL

~

~

.~

11fuir.,;..s- _/J/._1, z;oc:k ·/;.c,,,·;t,
t

/

~ames
A. Broderick
•
•

Adm1n1strat1ve Law Judge

/90

Distribution:
Walter J. Scheller, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Page H. Jackson, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
slk

791

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

MAY 31991
THOMAS J. MCINTOSH,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. KENT 90-113-D
MSHA Case No. BARB CD 90-06

FLAGET FUELS, INC.,
Respondent

No. 1 Surface Mine
DECISION

Appearances:

Tony Oppegard, Esq., Appalachian Research &
Defense-Fund of Kentucky, Inc., Lexington,
Kentucky, for the Complainant.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a complaint of discrimination filed
by the complainant against the respondent pursuant to section
l05(c) (3) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 815(c) (3). The complainant filed his initial complaint with the Mine Safety and Health Administration (MSHA), and
after completion of an investigation of the complaint, MSHA
advised the complainant by letter dated January 26, 1990, and
received by the complainant on February 1, 1990, that the information received during the investigation did not establish any
violation of section 105(c) of the Act. Thereafter, the complainant filed a complaint with the Commission.
The respondent filed a timely answer denying any discriminatory discharge, and after denial of its motion to dismiss on the
ground that the complaint was untimely filed, the case was
docketed for hearing in Hazard, Kentucky, on August 20, 1990.
The respondent 1 s subsequent motion for a continuance was granted,
and the case was redocketed for hearing on November 27, 1990.
The respondent's counsel withdrew from the case, and the scheduled hearing was again continued on motion by the complainant,
and the case was subsequently heard in Hazard, Kentucky, on
March 14, 1991. The complainant appeared, but the respondent did
not, and the hearing proceeded in its absence. The postal

792

service certified mailing receipts reflect that the respondent
has received all notices and amended notices of hearing issued in
this matter, bu~ it has filed no explanation for its failure to
appear at the hearing or to otherwise defend the complaint.
The complainant alleges that he was discharged by the
respondent from his employment as a bulldozer operator on or
about December 8, 1989, because of his refusal to operate a
bulldozer he reasonably and in good faith believed to be unsafe
and because he had voiced safety complaints about said bulldozer
to the respondent's vice-president.
Issues
The issues in this case include the following:
(1) whether
the complainant was engaged in protected activity when he complained about the bulldozer in question and refused to operate it
because he believed it was unsafe; (2) whether his work.refusal
was reasonable; and (3) whether he timely communicated his safety
complaints to mine management or to the respondent.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 301
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,

Complainant's Testimony and Evidence
Thomas J. Mcintosh, the complainant in this case, testified
that he had worked for the respondent for 1 year and 4 months
before he was discharged on December 8 1 1989, for "for refusing
to run an unsafe dozer. 11 At the time of his discharge he was
working at the respondent's Kentec stripping operation which is
located in Perry County, and he was employed as a bulldozer
operator doing reclamation work at the site. He worked the day
shift from 7:00 a.m. to 5:00 p.m., and he explained the work that
he was performing with the Caterpillar DSL bulldozer (Tr. 13-16).
Mr. Mcintosh confirmed that he worked at the Kentec location
for 5 months prior to his discharge and that he operated the
bulldozer the entire time. Mr. Mcintosh stated that when he was
initially assigned the bulldozer he learned that it had a bad oil
leak and he needed to check the transmission oil level closely
because the machine "would fly out of gear with you" (Tr. 17).
He explained the operation of the transmission, and he stated

that when the machine was operated on a steep grade, the transmission oil would either go to the rear or the front and the
transmission "starts sucking air and it will fly out of neutral"
(Tr. 18). When this occurred, he had no control over the machine
because the loss of oil pressure results in "freewheeling," and
if he were in first gear going up a slope and the transmission
slips out of gear, the machine "just automatically goes backward
with you" and "could very easily jar you off of it" because it
was an open-cab dozer (Tr. 20). Since the oil pressure brakes
work in tandem with the transmission, "you can mash them as hard
as you want to and it won't slow down until you get off of the
slope or level out" (Tr. 21).
Mr. Mcintosh stated that he experienced a problem with the
bulldozer flying out of gear during the entire 5 months he was at
the Kentec site, and since there were other employees always
working around him, he believed that the condition of the bulldozer posed a danger to himself and other employees (Tr. 21). He
confirmed that he complained about the condition of the dozer
four times to his foreman Randall Smith, and asked him to repair
it. Mr. smith would tell him tha.t he "would get to it as soon as
he could," but that the problem was never repaired. However, he
and the mechanic Lewis Baker attempted to find the oil leaks, and
repaired one or two of them, but the major leak was never
repaired and he had to overfill the transmission oil while
working on a steep grade (Tr. 23).
Mr. Mcintosh stated that the last day he worked at the site
was on December 1, 1989, when he was operating the dozer doing
reclaiming work. He was pushing a load of dirt up a deep slope
and when he was approximately 20 feet from the top of the slope,
the machine "hung up in gear on me and sat there and just jumped
right straight up and down and dug two big trenches there" (Tr.
24)"
He tried to put the gear shift in neutral by hitting it
with his foot because the transmission was stuck in forward gear,
and it went into reverse and he nwent about 175 or 180 feet,
flyingv• in a backward direction down the slope and was not in
control of the machine (Tr. 25). After the machine leveled out
at the bottom of the slope he was able to stop it with both feet
on the brake pedals (Tr. 26).
Mr. Mcintosh stated that the incident scared him and after
telling Mr. Baker what had happened they began working on the
problem for approximately an hour and a half.
In order to get
the shifting lever out of neutral they had to bend it and cut a
piece out of the shifting housing. This temporary.repair was
done so that he cold finish his work that day, and until the
machine could be fixed properly. He confirmed that Mr. Baker
found the problem, and that four bushings were needed to hold the
gear shifting lever straight so that it would not wobble. After
continuing to work on a smaller slope area, the transmission
started sticking and hanging in gear again, and he could not stop

794

the machine again as it proceeded down the slope, and he again
believed that he and everyone around him were in danger (Tr.
30-32). He confirmed that the machine weighs 32 tons, and is 26
or 27 feet long with a blade 18 feet wide and 5 feet high.
There
were generally four or five people working near him sowing seeds
and doing other work.
However, these people were not behind his
machine because he warned them to stay out from behind him
because he did not know when the machine would fly out of gear
(Tr. 34-35).
Mr. Mcintosh stated that after regaining control of the
dozer after the second incident on December 1, at the Kentec
site, he trammed it to the level service area and parked it and
shut it down because it was unsafe. Mr. Baker had left the site
earlier to go to another job, and there were no other mechanics
at the site. After he parked the machine, production superintendent Tim Fugate and reclamation engineer Glen Blevins arrived,
and he told Mr. Fugate about the problem with the dozer.
Mr. Fugate told him to "use your judgment.
You know the machine,
what is safe and what is not" and told him to get together with
the mechanic to find out the p~oblem and that he (Fugate) would
order any parts that were needed to repair the machine.
Mr. Mcintosh told Mr. Fugate that Mr. Baker already knew about
the machine gear problem, but that he would tell him to buy the
parts. Mr. Mcintosh subsequently told one of the laborers who
was going to the other site where Mr. Baker was working about
what Mr. Fugate had told him (Tr. 38).
Mr. Mcintosh stated that his next scheduled day of work was
Monday, December 4, 1989. He called in and spoke with "parts
man" Fitz Steele, and asked him whether the dozer had been
repaired.
Mr. Steele informed him that parts were on order but
that the machine had not been repaired. Mr. Mcintosh did not
work that day, and called in again on Tuesday, December 5, and
was again informed by Mr. Steele that the dozer had not been
repaired.
Mr. Mcintosh did not work that day either, and he
confirmed that he received no pay for both days because he is
only paid when he works.
He confirmed that he would have gone to
work if the dozer had been repaired (Tr. 38-39).
Mr. Mcintosh stated that he next reported for work on
Wednesday, December 6, and he arrived 5 or 10 minutes before
7:00 a.m., to find out if the dozer had been repaired.
He spoke
to his foreman Randall Smith and explained his prior problems and
incidents with the machine. Mr. Smith asked him if he was going
to operate the dozer that day and Mr. Mcintosh informed Mr. Smith
that he would run it when it was repaired.
Mr. Smith explained
to him that Mr. Baker would be at another job all day and that
there were no other mechanics at the Kentec site. Mr. Mcintosh
then left the site and went home, and he confirmed that he would
have worked if the dozer had been repaired.

795

Mr. Mcintosh stated that he next reported for work on
Thursday morning, December 7, and spoke with Mr. Smith again.
Mr. Smith confirmed that the dozer had not been repaired, and
Mr. Mcintosh again informed him that he would run it when it was
repaired. Mr. Smith then told Mr. Mcintosh that "he wasn't going
to pay me to sit in my truck while someone else done my job" (Tr.
43). Mr. Mcintosh confirmed that he did not know whether anyone
else operated the dozer during the days it was out of repair and
he did not stay at the site to find out (Tr. 43-43)
Mr. Mcintosh stated that after speaking with Mr. Smith on
December 7, he left the site and went to the respondent's office
in Hazard and spoke with company vice-president Glen Phillips.
He confirmed that he told Mr. Phillips about the problems with
the dozer and the prior incidents with the machine on the slopes.
Mr. Mcintosh confirmed that this was the first time he spoke with
Mr. Phillips and that Mr. Phillips told him that he was not aware
of the problem with the dozer but would check into it (Tr.
46-47).
Mr. Mcintosh stated tha~ .. he next reported for work on
Friday, December 8, and since there was an ice storm that day, he
and foreman Smith were the only ones at work because they had
four-wheel drive vehicles. Mr. Smith pulled his vehicle next to
Mr. Mcintosh's and stated "You went and talked to Glen Phillips,
haven't you?" Mr. Mcintosh confirmed to Mr. Smith that he had
spoken with Mr. Phillips. Mr. Mcintosh stated that Mr. Smith's
"face turned real red and he got mad there," and when he asked
Mr. Smith whether he was going to repair the dozer, Mr. Smith
replied "no, and furthermore, you no longer have a job here" (Tr.
47). Mr. Mcintosh then left the site and again went to Hazard to
speak with Mr. Phillips. Mr. Phillips acknowledged that he knew
that Mr. Mcintosh had been fired by Mr. Smith, but informed him
that he had to back up his foreman, and since he was told that he
(Mcintosh) was a good worker, he (Phillips) would give him a good
recommendation (Tr. 48).
Mr. Mcintosh stated that prior to his discharge by
Mr. Smith, he had never had any disciplinary problems with the
respondent, and had never been disciplined or warned about his
job performance. He confirmed that he got along fine with
Mr. Smith and the rest of the foremen, always did his work
assignments, and never refused to perform any assignment prior to
December 1, when he parked the dozer (Tr. 48). Mr. Mcintosh
confirmed that Mr. Smith alone fired him, and that Mr. Phillips
simply told him that he would have to back Mr. Smith up and he
said nothing to him about what Mr. Smith may have told him about
why he fired him (Tr. 49-50). Mr. Mcintosh also confirmed that
during his conversations with Mr. Smith during December 6 through
8, Mr. smith never told him that he would repair the dozer or
that the machine had been checked out and was safe to operate
(Tr. 50). Mr. Mcintosh further confirmed that the only reason

796

for his refusal to operate the dozer was the fact that it was
flying out of gear and sticking in gear (Tr. 51}.
Mr. Mcintosh confirmed that he earned $8 an hour straight
time, and time-and-a-half, or $12 an hour, for overtime which he
earned on occasions. He stated that it took him about a month to
find another job, made a diligent effort to find work after his
discharge, and he identified several coal companies where he
tried to find work. He wor~ed for Vires Coal Company, but left
after he was called back to Arch Minerals where he worked from
August until October 26, 1990, when he was laid off again (Tr.
52-53). Mr. Mcintosh confirmed that he had no reason to believe
that Mr. Phillips did not give him a good work recommendation,
and that he (Mcintosh) did not tell other potential employers
that he had been fired, and Mr. Phillips did nothing to prevent
him from getting work. Mr. Mcintosh confirmed that he was out of
work for a month or so subsequent to his discharge, and has been
out of work and drawing unemployment since October 26, 1990 (Tr.
55). He confirmed that the respondent's operation was non-union,
and that he had no medical insurance, leave, or other benefits,
other than his pay check (Tr._58)~
Mr. Mcintosh confirmed that he had trouble with the dozer
during the 5-month period prior to his discharge, and that the
conditions worsened during the week before he was fired.
He also
confirmed that he had not refused to operate the dozer earlier
because "they probably would have fired me. And I had to keep on
working.
I have got a family to support" (Tr. 58). He did not
know if Mr. Smith would have fired him if he had not spoken to
Mr. Phillips (Tr. 59). He confirmed that Mr. Smith never said
anything to.him about calling in on Monday and Tuesday,
December 4, and 5, rather than reporting for work (Tr. 60).
Mr. Mcintosh believed that one of the reasons Mr. Smith fired him
was because he complained to Mr. Phill
about the dozerr and
his conclusion
s regard is based on the fact that Mr. Smith
•~turned as red
ed beet 1 °0 and 11 got real mad and real
nervous and
jerking around 10 when he confirmed that he had
spoken to Mr. Phillips (Tr. 61). Mr. Mcintosh confirmed that
other than his complaints to mine management, he did not report
the dozer condition to any MSHA or state inspectors (Tr. 61).
Lewis Baker
f ied that he was
employed by the
respondent as a mechanic for 2 years unt
approximately June,
1990, when he was laid off. He worked at the respondent 1 s
Brown's Fork and Kentec sites, and worked with Mr. Mcintosh at
the Kentec job doing reclamation work. He confirmed that
Mr. Mcintosh was having problems with the dozer that he was
operating and told him that it was "hanging in gear. 11 Mr. Baker
further confirmed that the gear shifter bushings on top of the
transmission were worn out and that he had to adjust the linkage
and bend the shifter because it was sticking when the gears were
worked. He stated that part of the shifting housing of the

dashboard had to be cut out to allow the shifter to go forward
into neutral gear. The dozer operator has to be able to put the
machine in neutral, and if he cannot 11 it will go over a cliff
with you. You can back over a highwall or anything with it" (Tr.
67) .
Mr. Baker stated that prior to the time that he and
Mr. Mcintosh worked on repairing the dozer, it had been leaking
oil for over a month and that "when it leaks down so low and get
on a slope or anything, your transmission won't pick it up. Your
pump won't pump.
It goes just like it is out of gear and you
ain't got no brakes" {Tr. 68). He confirmed that the repairs
that he and Mr. Mcintosh made to the dozer were temporary repairs
and that he needed bushings to take the slack out of the transmission linkage so that it could be adjusted. He confirmed that
the required bushings were ordered by Fitz Steel {Tr. 70).
Mr. Baker stated that the day that he and Mr. Mcintosh
repaired the dozer at the Kentec site was his last day of work at
that location because he was called to the Brown's Fort site to
do mechanic work after people, ..were laid off there. He returned
to the Kentec site for one day a month later after Mr. Mcintosh
was fired to pull the transmission out of the dozer that
Mr. Mcintosh had problems with and it was sent to Western Branch
Diesel to be rebuilt. Mr. Baker confirmed that he never received
or installed the bushings which had been ordered for the dozer in
question (Tr. 71-72).
Mr. Baker confirmed his "hearsay" understanding that
Mr. Mcintosh was fired for refusing to operate the dozer because
it was hanging in gear, and that Mr. Smith informed him that he
fired Mr. Mcintosh for refusing to run the dozer, and that
Mr. Mcintosh had told him that it was unsafe to run. Mr. Baker
believed that the dozer was unsafe to run and he stated that he
would not have operated it in the condition that it was in (Tr.
7 5)
Q

Fitz Steele, a witness subpoenaed but not called to testify
by the complainant, was called as a witness by the presiding
judge. Mr. Steele stated that he was formerly employed by the
respondent at the Brown's Fork site, and that he did not work
with Mr. Mcintosh at the Kentec site. Mr. Steele stated that he
was the 11 parts man" responsible for taking equipment orders from
the mechanics who worked at both sites and ordering the parts.
He "guessed" that he had ordered parts for the dozer operated by
Mr. Mcintosh at the Kentec site in December, 1989, and he confirmed that he gave a copy of an order for parts .to t~e MSHA
investigator who investigated Mr. Mcintosh's complaint (Tr.
77-79, exhibit C-A}.
Mr. Steele confirmed that there was only one 08 dozer at the
Kentec site, and he believed that the "Roller A" part shown on

the order invoice dated December 11, 1989, was for that dozer.
Mr. Steele could not specifically remember whether or not
Mr. Mcintosh ever complained to him about the dozer, but he
recalled "something about a linkage, something like I had ordered
because it was something that goes on top of the transmission,
about shifting, something like that" (Tr. 80). Mr. Steele also
stated that while he was not sure, Mr. Mcintosh "come over and
said that he had told Randall that Randall needed to get the
parts but now, I hadn't heard about it" (Tr. 80).
Mr. Steele stated that when he previously worked at the
Kentec site sometime in 1988 or 1989, he saw the dozer in question every day and commented "I hated that dozer.
I hated all of
their equipment, to tell you the truth" (Tr. 81). He confirmed
that he had never operated the dozer, but could tell its condition by looking at it.
Complainant's Arguments
The complainant's counsel waived the filing of any posthearing brief and was allowed an'opportunity to make an oral closing
argument at the conclusion of the hearing (Tr. 85-87). Counsel
argued that the uncontradicted evidence in this case establishes
that the complainant had a problem with the bulldozer flying out
of gear for several months prior to December 1, 1989, when it
began sticking in gear and creating a safety hazard because of
the inability of the complainant to control the machine. As a
result of this problem, the complainant slid backwards down two
slopes. Although the mechanic (Lewis Baker), made some temporary
repairs on December 1, the problem reoccurred later in the day,
and it became necessary for the complainant to park the machine.
Complainant's counsel pointed out that December 1, was the
last day that the complainant worked, and that the testimony of
the mechanic establishes that no repairs were made to the bulldozer during the week preceding the complainant's discharge on
December 8, 1989. counsel concludes that the complainant had a
reasonable, good faith belief for parking the dozer on
December 1, and that the belief remained reasonable and in good
faith during the following week because the complainant was never
told that any repairs had been done, nor did he assume that any
repairs had been made to the machine. As further evidence of the
complainant's good faith and reasonableness, counsel cites the
fact that the complainant travelled 25 miles to Hazard to complain to company vice-president Phillips that the dozer had not
been repaired and that he wanted it repaired, and that
Mr. Phillips advised him that he would look into the problem.
Counsel asserted that when the complainant reported for work
on December 8, the first thing that was brought up by foreman
Smith in an angry tone of voice was the fact that the complainant
had spoken with vice-president Phillips. Counsel concludes that

799

Mr. Smith was upset that the complainant had gone over his head
and that this was part of the reason why he discharged the
complainant that day.
Counsel points out that at no time during
December 6, through 8, did Mr. Smith ever indicate that the dozer
was safe to operate, that any repairs had been made, or that it
was in any different condition other than what the complainant
had left it a week earlier. Counsel argued that it is clear from
the case law that when a miner makes a good faith, reasonable
safety complaint, the mine operator has a corresponding duty to
address the complaint. In the instant case, counsel concludes
that the respondent failed to address the complainant's safety
complaint and that foreman Smith discharged the complainant for
his work refusal and for complaining to Mr. Phillips, and that
this action was in violation of section 105(c) of the Act.
Findings and Conclusions
In order to establish a prima f acie case of discrimination
under section 105(c) of the Mine Act, a complaining miner bears
the burden of production and proof to establish {l) 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 Carp., 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 (1) 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 Baich 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.
o

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.

800

Secretary on behalf of Chacon v. Phelps Dodge corp., 3 FMSHRC
2508, 2510-11 (November 1981), rev'd on other grounds sub nom.
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 analyzing 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 a.sserted business justifications, but
rather only to determine whether they are credibl~ and,
if so, whether they would have motivated the particular
operator as claimed.
Mr. Mcintosh's Protected Activity
It is clear that Mr. Mcintosh .had a right to make safety
complaints about any equipment which he believed presented a
safety hazard, and that under the Act, these complaints are
protected activities which may not be the motivation by mine
management' for any adverse personnel action against him;
Secretary of Labor ex rel. Pasula v. Consolidation Coal Co.,

801

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). Safety complaints to mine
management or to a section foreman constitutes protected activity, Baker v. Interior Board of Mine Operations Appeals, 595 F.2d
746 (D.C. Cir. 1978); Chacon, supra. The miner's safety complaints must be made with reasonable promptness and in good
faith, and be communicated to mine management, MSHA ex rel.
Michael J. Dunmire and James Estle v. Northern Coal Company,
4 FMSHRC 126 (February 1982); Miller v. FMSHRC, 687 F.2d 194,
195-96 (7th Cir. 1982);
v. Mine Services Co., 6 FMSHRC
1391 (June 1984).
A miner has the right under section 105(c) of the Act to
refuse to work if he has a good faith, reasonable belief that his
continued work involves a hazardous condition. Pasula,
2 FMSHRC at 2789-96;
supra, 3 FMSHRC at 807-12;
Secretary v. Metric Constructors, Inc., 6 FMSHRC 226, 229-30
(February 1984); aff'd
nom. Brock v. Metric Constructors
Inc., 766 F.2d 469, 472-73 (l·lth Cir. 1985). However, where
reasonably possible, -a miner refusing work ordinarily must
communicate or attempt to communicate to some representative of
the operator his belief that hazardous conditions exists.
In a
number of safety related "work refusal" cases, it has been
consistently held that a miner has a duty and obligation to
communicate his safety concerns 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); Simpson v.
Kenta Energy, Inc. & Roy Dan Jackson, 8 FMSHRC 1034, 1038-40
(July 1986); Secretary on behalf of Dunmire & Estle v. Northern
Coal Co., 9 FMSHRC 992 (June 1987); Miller v. FMSHRC, 687 F.2d
194, 195-97 (7th Cir. 1982) (approving Dunmire & Estle communication requirement);
v. Mine Services Co., 6 FMSHRC 1391
(June 1984);
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).
In Gilbert v.
, 12 FMSHRC 177
(February 1990),
v. FMSHRC, 866 F.2d 1433
(D.C. Cir. 1989),
Sandy Fork Mining Co.,
9 FMSHRC 1327 (1987), it was held that a violation of section
105(c) is established when a miner has a reasonable, good faith
belief that certain work conditions are hazardous, communicates
that belief to mine management, and management does not address
his safety concerns in a manner sufficient to reasonably quell
his fears.
As indicated earlier, the respondent received the notice of
the hearing by certified mail, but failed to appear at the

802

hearing to defend the complaint, and no one purporting to represent the respondent appeared at the hearing. Although three
individuals who identified themselves as employees of the respondent appeared at the hearing (Tim Fugate, Glen Blevins, and
Randall Smith), it was not clear who instructed them to appear,
and none of these individuals purported to represent the respondent in this matter. Further, they entered no appearances in any
representative capacity for the respondent, and they were not
called to testify in this matter.
In view of the respondent's
failure to appear, or to otherwise inform me that it did not
intend to appear, the hearing proceeded in its absence, and the
complainant put on its case. Under the circumstances, I conclude
and find that the respondent has waived its right to be heard
further in this matter and I have rendered my decision on the
basis of the testimony and evidence adduced by the complainant in
support of his case.
The credible testimony of the complainant Mcintosh, corroborated by mechanic Baker, establishes that the bulldozer operated
by Mr. Mcintosh on December 1, 1989, had a mechanical problem and
was in need of repair_ in order to render it safe to operate. The
evidence clearly establishes that the transmission and gear
system problems attested to by Mr. Mcintosh resulted in the
machine moving unexpectedly backwards and out of control while
Mr. Mcintosh was operating the machine on a slope. Mr. Mcintosh
and Mr. Baker made some temporary repairs to the machine so that
Mr. Mcintosh could complete his work. However, after putting the
machine back into operation, the problem reoccurred, and the
machine again moved backwards down the slope and out of control.
Mr. Mcintosh then concluded that the machine was unsafe to
operate and that to continue to operate it under the condition
that it was in would place him and other employees who were
working near the machine at risk. Mr. Mcintosh then stopped
workp trammed the machine to a level area, and shut it down and
parked it" Under all of these circumstances, I conclude and find
that Mr" Mcintosh had a reasonable good faith belief that to
continue to operate the bulldozer under the condition that it was
in on December 1, 1989, ("flying out of gear" and the transmission "sticking and hanging in gear") would expose him and other
miners working around him to dangerous safety hazards and
injuries if he (Mcintosh) were propelled out of the machine or if
the machine struck anyone while it was out of control"
The credible testimony of Mr. Mcintosh further establishes
that on Monday, December 4, 1989, his next scheduled work day,
and again on Tuesday, December 5, 1989, Mr. Mcintosh telephoned
the mine to inquire as to whether or not the bulldozer in question had been repaired. After he was informed that parts were on
order, but that the dozer had not been repaired, Mr. Mcintosh did
not report for work on either day. Had the doz~r been repaired,
Mr. Mcintosh would have reported for work. However, since he was
informed that it had not been repaired, I find that it was not

803

unreasonable for Mr. Mcintosh to conclude that the machine was in
the same unsafe condition as it was when he shut it down and
parked it the previous Friday, December 1, 1989. Under the
circumstances, I conclude and find that Mr. Mcintosh's refusal to
report for work on these 2 days to operate the dozer was reasonable, and that his decision in this regard was prompted by his
safety concerns and a reasonable good faith belief that to
operate the dozer before repairs were made would place him at
risk and expose him to possible injury.
The credible testimony of Mr. Mcintosh further establishes
that he reported for work on Wednesday, and Thursday, December 6,
and 7, 1989, and spoke with his foreman Randall Smith.
Mr. Mcintosh explained his prior problems with the dozer to
Mr. Smith, and after learning that the dozer had not been
repaired, Mr. Mcintosh informed Mr. Smith that he would not
operate the machine until it was repaired, and Mr. Mcintosh did
not work either day, but he was ready to work if the machine had
been repaired. Under the circumstances, I conclude and find that
Mr. Mcintosh's continued refusal to operate the dozer in question
until it was repaired_ and rendered safe was reasonable and that
his decision in this regard was based on a reasonable good faith
belief that to operate the machine before it was repaired would
place him at risk.
I further conclude and find that
Mr. Mcintosh's refusal to operate the dozer during the period
December 4, through December 7, 1989, until it was repaired, and
his decision to shut down and park the dozer on December 1, 1989,
constituted protected work refusals pursuant to the Act.
Mr. Mcintosh's credible and uncontroverted testimony further
establishes that he timely communicated his safety complaint or
safety concern with respect to the unsafe condition of the dozer
question to mine management prior to his discharge by foreman
Smith on Friday, December 8, 1989. Mr. Mcintoshgs initial
complaints concerned a leaky transmission condition which
resulted in a loss of oil and oil pressure, causing the transmission uuto fly out of gear, uo and which resulted in a 11 freewheeling1i of the machine. This was communicated to foreman Smith
at least a month or more prior to December 1, 1989, and although
Mr. Smith assured Mr. Mcintosh that the problem would be
addressed, ·the machine was never repa
Mr, Mcintosh gs subsequent complaints about the condition of the dozer were communicated to production superintendent
and reclamation
engineer Blevins on December 1, 1989, after Mr" Mcintosh shut
down and parked the machine, and again on December 6, and 7,
1989, when he went to the work site and informed foreman Smith
about the condition of the dozer and advised him that he would
not operate the machine until the repairs were made.
Mr. Mcintosh's further safety complaint communication to mine
management was made on December 7, 1989, when he visited the
respondentgs office and informed vice-president Phillips about
the condition of the dozer.

804

There is no evidence that Mr. Mcintosh was ever offered
other work in lieu of operating the dozer in question, and his
uncontroverted testimony establishes that he was always ready,
willing, and able to work and operate the machine if it had been
repaired.
Further, Mr. Mcintosh's credible and uncontroverted
testimony establishes that at no time during their conversations
on December 6, through 8, 1989, did Mr. Smith ever indicate to
Mr. Mcintosh that he would repair the dozer or that it had been
checked out and found safe to operate. Although there is some
evidence that the dozer gear bushings may have been ordered,
mechanic Baker confirmed that the parts were never received or
installed. Although Mr. Baker confirmed that he and Mr. Mcintosh
had made some temporary repairs to the dozer on December 1, 1989,
before the machine was shut down and parked, he confirmed that no
permanent repairs were ever made to the machine and that the
transmission was subsequently removed for rebuilding after
Mr. Mcintosh was discharged. Mr. Baker also believed that the
unrepaired dozer was unsafe to operate and he confirmed -that he
would not have operated it in the condition that it was in.
Under all of the aforesai:d circumstances, I conclude and
find that Mr. Mcintosh 1 s safety complaint and concern with
respect to the hazardous condition of the dozer which he was
expected to operate was timely communicated to mine management
and that management had a reasonable opportunity to address his
safety concerns and timely repair the dozer.
I further conclude
and find that Mr. Mcintosh's safety communications met the
requirements enunciated by the Commission in Secretary on behalf
of Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126 (February
1982), Secretary on behalf of John Cooley v. Ottawa Silica
Company, 6 FMSHRC 516 (March 1984); and Gilbert v. sandy Fork
Mining Company, supra.
Based on the credible and uncontroverted testimony of
Mro Mcintosh; I conclude and find that Mr. Smith discharged him
on December 8 1 1989r in part because of his refusal or failure to
operate the dozer in question.
I further conclude and find that
there is a strong unrebutted inference, based on Mr. Mcintosh's
credible testimony concerning Mr. Smith's demeanor and agitated
state at the time he discharged him, that Mr. Smith also decided
to discharge Mr. Mcintosh because he had spoken to company
vice-president Phillips and complained to him about the dozer.
Inasmuch as Mr. Mcintosh had a protected right under the Act to
refuse to operate the dozer under the circumstances which prevailed at the time of the discharge, and since he also had a
further protected right to complain to Mr. Phillips about the
unsafe condition of the dozer, I further conclude and find that
Mr. Mcintosh's discharge was illegal and in violation of section
105(c) of the Act. Accordingly, his discrimination complaint IS
SUSTAINED.

805

ORDER
1. Respondent IS ORDERED to reinstate Mr. Mcintosh to his
former position with full backpay and benefits, with interest, at
the same rate of pay, on the same shift, and with the same status
and classification that he would now hold had he not been unlawfully discharged.

2. Respondent IS ORDERED to expunge from Mr. Mcintosh's
personnel file and/or any company records any reference to his
discharge of December 8, 1989.
3. Respondent IS ORDERED to reimburse Mr. Mcintosh for all
reasonable expenses incurred by him in the institution and
prosecution of his discrimination complaint, including reasonable
attorney fees.
At the close of the hearing in this matter on March 14,
1991, the complainant was afforded an opportunity to file his
request for relief and his counsel stated that he would file a
statement of back pay and attorney fee petition within thirty
(30) days (Tr. 93). - As of this date, no such filing has been
forthcoming.
Under the circumstances, I retain jurisdiction in
this matter until the remedies due the complainant are finalized.
Until these determinations are made, and pending a finalized
dispositive order by the undersigned presiding judge, my decision
in this matter is not final.
Counsel for the complainant IS
ORDERED to file his relief petition immediately upon receipt of
this decision.

~fcu~
Administrative Law Judge

stribution~

Tony Oppegard, Esq., Appalachian Research & Defense Fund of
KentucJ<y 7 Inc. ! 63 o Maxwel ton Court 1 Lexington, KY 4 0508
(Certified Mail)

:?laget
{Certi

s

Inc., 825 High Street; Hazard, KY 41701

1)

/fb

806

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

22041

t1AY 81991
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 91-49
A. C. No. 15-13920-03681
Docket No. KENT 91-82
A. C. No. 15-13920-03683

PYRO MINING COMPANY,
RestJondent

Pyre No. 9 Wheatcroft
Docket No. KENT 91-83
A. C. No. 15-14492-03574
Baker Mine
DECISION

Appearances:

w. F. Taylor, Esq., Office of the Solicitor, u. s.
Department of Labor, Nashville, Tennessee, for the
Secretary of Labor (Secretary) ;
Catherine Behrens, Esq., Sturgis, Kentucky, for
Pyro Mining Company (Pyre).

Before

Judge Broderick

Pursuant to notice, the above cases were called for hearing
on the merits in Nashville, Tennessee, on April 30, 1991. The
parties submitted on the record a motion to approve a settlement
in all of the three dockets as follows:
Docket No. KENT 91-49
1.
citation 3420624. Pyre agrees to withdraw its contest
and pay the assessed penalty ($1500).
2. Order 3420687. Pyro agrees to withdraw its contest and
to pay the assessed penalty ($1500).
3. Citation 3545776.
citation.

The Secretary agrees to vacate the

4.
Citation 3545901. Pyro agrees to withdraw its contest
and pay the assessed penalty ($229).

807

5. Citation 3545832. This citation charges a violation of
30 C.F.R. § 75.402 because of inadequate rock dust outby the
feeder.
It was designated a significant and substantial
violation. The Secretary agrees to modify the citation to a
nonsignificant and substantial violation and reduce the penalty
from $213 to $20 on the ground that the area cited was 350 feet
from the face and no ignition sources were present.
6. Citation 3545902 charges a violation of 30 C.F.R.
75.512 because a scoop was on charge and the lids not secured.
The Secretary agrees that the negligence should have been rated
as low rather than moderate. Pyro agrees to pay the assessed
penalty ($175).
§

Docket No. KENT 91-82

1.

Citation 3545906 charges a violation of 30 C.F.R.

§ 75.807 because of improper placement of a high voltage cable.

It was designated as a significant and substantial violation.
The Secretary agrees to modify the citation to a nonsignificant
and substantial violation because the cable had no breaks and
presented no likelihood of injury. Pyre agreed to pay the
assessed penalty ($178).
2.
Citation 3545840. Pyro agrees to withdraw its contest
and to pay the assessed penalty ($335).

Docket No. KENT 91-83

1. Citation 3421446. Pyro agrees to withdraw its contest
and pay the assessed penalty ($178).
Citation 3421445 charges a violation of 30 C.F.R.
because of an inoperative water spray.
It was
as a significant and substantial violation.
The
agrees to modify the citation to a nonsignif icant and
substantial violation because miners were not exposed in the
cited area.
Pyro agrees to pay the assessed penalty ($178).
2"

3.
Citation 3421448.
Pyro agrees to withdraw its contest
and oav the assessed penalty ($178).

4.
Citation 354530.
Pyro agrees to withdraw its contest
pay the assessed penalty ($206)
o

I have considered the motion in the light of the criteria in
Section llO(i) of the Act and conclude that it should be
approved.

808

ORDER
Accordingly, it is ORDERED:
1.

Citation 3545776 is VACATED.

2.
Citations 3545832, 3545906, 3421445 are MODIFIED to
charge nonsignificant and substantial violations.
3. Pyro shall within 30 days of the date of this Decision
pay to the Secretary the following civil penalties:

ORDER/CITATION
3420624
3420687
3545901
3545832
3545902
3545906
3545840
3421446
3421445
3421448
354530

30 C.F.R.

AMOUNT

75.1325(c) (1)
75.400
75.517
75.402
75.512
75.807

$1500
1500
229
20
178
178
335
178
178
178
206
$4680

75~400

75.1722(b)
73.316
75.316
75.316
TOTAL

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1

(/ James
Broderick
·
Administrative Law Judge
Distribution~

W. F. Taylor, Esq., Office of the Solicitor, U. s. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)
Catherine Behrens, Esq., Pyre Mining Company, P.
Sturgis, KY 42459 (Certified Mail)

o. Box 289,

Mr. Clifford D. Burden, Director of Safety & Training, Pyro
Mining Company, P. o. Box 267, Li..:urgis, KY 42459 (Certified Mail)
dcp

809

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

MAY 81991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
WILLIAM R. BROCKMAN,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEST 91-21-DM

MD 89-62

v.
sun Valley Plant
CALMAT COMPANY,
Respondent
DECISION
Appearances:

Lisa A. Gray, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Complainant~
Anne Morrise Esq., Los Angeles, California,
for Respondent.

Before:

Judge Lasher

This matter came on for hearing on April 9, 1991, in Ontariou California. At commencement of hearing, the parties announced that a settlement had been reached resolving the litigation in questiono
At this timeu counsel for the parties entered
nto a prepared statement setting forth their agreement and the
oases therefor and such statement was read into and made part of
the recordo
The accord reached by the parties appeared reasonable and consistent with the purposes of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801, et~, and such was
approved on the rcord from the bencho That bench decision is
nere
firmedo
In summaryu the Respondent concededu solely for
the purposes
this mine safety proceedingu that a violation of
Section 105(c)
the Mine Act occurred and agreed to pay a civil
penalty therefor in the sum of $10000000
My approval of this
settlement is here aff irmedu and the penalty stipulated is here
assessedo
ORDER
Respondent, if it has not previously done so, shall pay to
the Secretary of Labor within 30 days from the issuance date of
this decision the sum of $1000 as and for the civil penalty above
assessed.

810

Upon payment of such penalty, this proceeding shall be
deemed DISMISSED.

tj/JL.'tftr-e 4

~<~ 1Z'"

Michael A. Lasher, fr'.
Administrative Law Judge

Distribution:
Lisa Gray, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
William R. Brockman, 10260 Plainview #12, TUjunga, CA 91042
(Certified Mail)
Anne Morris, Esq., 3200 San Fernando Road, Los Angeles, CA 90065
(Certified Mail)

Mro Frank ouorsiu Corporate Safety Directoru PoO* Box 2950u
Terminal Annexu Los Angelesu CA 90051 (Certified Mail)

ek

811

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

MAY 61991
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 90-201
A.C. No. 46-07527-03515 A

v.

Sparky No. 2 Mine

ROBERT ZIEGLER, EMPLOYED BY
ALAMOSA MINING, INC.,
Respondent
'DECISION

Appearances:

Before:

J. Philip Smith, Esq., Office of the Solicitor
U.S. Department of Labor, Arlington, Virginia
for the Petitioner;
Forrest H. Roles, Esq., Smith, Heenan and Althen,
Charleston, West Virginia for Respondent.

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to section llO(c) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. §et seq.,
the "Act. 111 The Secretary charges herein that Robert Ziegler,
as an agent of a corporate mine operator, namely Alamosa Mining,
Inc. 9 (Alamosa) knowingly authorized, ordered, or carried out a
violation of the mandatory safety standard at 30 C.F.R. §
75.JOJ(a), by the corporate operator as alleged in
Order No. 3334178.
1section

llO(c) of the Act reads as follows:

Whenever a corporate operator violates a mandatory heal th
or safety standard or knowingly violates or fails or
refuses to comply with any order issued under this Act or
any order incorporated in a final decision issued under
this Act, except an order incorporated in a· decision
issued under subsection (1) or section 105(c), 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).

812

Order No. 3334178 reads in relevant part as follows:
Management failed to enter (3) obvious violations
on the main belt haulage system in the mine examiner's
book kept on the surface on 08-21-89. The belt was
examined by a certified fire boss representing mine
management. These conditions was [sic] known or should
have been known. (a proper preshift examination was not
made)
The cited standard, 30 C.F.R.

§

75.303(a), reads as follows:

Within 3 hours immediately preceding the beginning
of any shift, and before any miner in such shift enters
the active workings of a coal mine, certified persons
designated by the operator of the mine shall examine
such workings and any other underground area of the
mine designated by the Secretary or his authorized
representative.
Each such examiner shall examine every
working section in such work,i.ngs and shall make tests
in each such working-section for accumulations of
methane with means approved by the Secretary for
detecting methane, and shall make tests for oxygen
deficiency with a permissible flame safety lamp or
other means approved by the Secretary; examine seals
and doors to determine whether they are functioning
properly; examine and test the roof, face, and rib
conditions in such working section; examine active
roadways, travelways, and belt conveyors on which men
are carried, approaches to abandoned areas, and
accessible falls in such section for hazards; test by
means of an anemometer or other device approved by the
Secretary to determine whether the air in each split is
traveling in its proper course and in normal volume and
velocity~ and examine for such other hazards and
violations of the mandatory health or safety standards,
as an authorized representative of the Secretary may
from time to time require.
Belt conveyors on which
coals is carried shall be examined after each coalproducing shift has beguno Such mine examiner shall
place his initials and the date and time at all places
he examines.
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 the mine.
No person,
other than an authorized representative of the
Secretary or a State mine inspector or persons
authorized by the operatcr to enter such place for the

813

purpose of eliminating the hazardous condition therein,
shall enter such place while such sign is so posted.
Upon completing his examination, such mine examiner
shall report the results of his examination to a
person, designated by the operator to receive such
reports at a designated station on the surface of the
mine, before other persons enter the underground areas
of such mine to work in such shift. Each such mine
examiner shall also record the results of his
examination with ink or indelible pencil in a book
approved by the Secretary kept for such purpose in an
area on the surface of the mine chosen by the operator
to minimize the danger of destruction by fire or other
hazard, and the record shall be open for inspection by
interested persons.
Ziegler argues in his post hearing brief that certain
testimony of an MSHA inspector regarding the absence of entries
in the mine examiner book (also known as the fire boss book) was
inadmissible as contrary to the "Best Evidence Rule" as
incorporated in Rule J.002, Federal Rules of Evidence. commission
Rule 60(a), 29 C.F.R. § 2700.60(a), governs the admissibility of
evidence in Commission proceedings however and that rule states
that "[r]elevant evidence that is not unduly repetitious or
cumulative is admissible". There is no dispute that the
challenged testimony consisted of relevant evidence and that it
was neither repetitious nor cumulative. Accordingly it was
properly admitted at trial. It is noted moreover that Federal
Rule 1002 is not in any event applicable to testimony that books,
or records have been examined and found not to contain any
reference to a designated matter.
11 Moore's Federal Practice §
1002.01-.02.
Ziegler also argues in his brief that the evidence does not
support the charges that the corporate operator was named
~iAlamosa Mining, Inc. uu as alleged in the Amended Petition.
To
the contrary however, the Legal Identity Report (Exhibit G-1),
required to be filed by the mine operator, clearly shows the
identity of the operator to be "Alamosa Mining, Inc." The proof
therefore is clearly sufficient to support the allegations.
The undisputed evidence of record also establishes the
existence of the cited violation. Jerry Sumpter, an inspector
for the Federal Mine Safety and Health Administration, testified
without contradiction that he was inspecting the Sparky No. 2
Mine on August 21, 1989, when he observed the existence of what
he deemed to be "obvious" violations of mandatory standards that
had not been reported before the shift at issue in the mine
examiner's book for preshift examinations.
More specifically Sumpter testified that he arrived at the
subject mine at about 7:00 a.m. and, observed that the belt was

814

running but the miners had not yet proceeded underground. He
examined the mine examiner's books between 7:00 and 8:00 a.m.,
and found that Ziegler, who was the mine superintendent, had
countersigned the examiner's book for this oncoming shift but no
conditions were.reported on the page corresponding to that
particular date and shift.
The miners proceeded underground at around 8:00 a.m. and
Sumpter followed shortly thereafter. As Sumpter was travelling
along the belt haulage line with Ziegler he observed "very black"
coal spillage on the structure and along the side some 24 inches
wide, 2 to 4 inches deep and extending for about 1,700 feet.
He
also observed coal dust lying on top of rock dust over a linear
distance of 600 feet.
Sumpter also found a violation of Alamosa's ventilation
system and methane dust control plan under the mandatory
standard at 30 C.F.R. § 75.316. In particular, Sumpter noted
that at the tail piece the check curtain was torn down and lying
on the tight side of the belt haulage allowing air coming up the
belt haulage to be directed tpward the working faces where miners
were then inby working.
Finally Sumpter testified concerning the existence of what
he deemed to be a violation of the standard at 30 C.F.R. §
75.1100-2(b) in that a 200 foot section of waterline was not
provided for the section tail piece along the belt haulage system
and the water was turned off at the main water line valve.
It is undisputed that the violative coal dust conditions had
existed for a week and, that the box curtain had been down and
that the water line had been absent since the last move of the
tail piece. Sumpter testified that Ziegler admitted that he was
aware that the water line was too short and that he did not have
the manpower to move it. Sumpter examined the book entries
through the preceding August 19, and found no reports of any of
the three violative conditions. He also found that Zieglar had
signed the books as mine examiner.
Sumpter further noted that
there were no initials, dates and times of preshift examinations
found underground as required by the cited standard.
In this
regard Ziegler stated that he "must have forgotten 11 to do this.
According to Alamosa President Harry Cooke, Jr., Ziegler was
superintendent of the subject mine around the period August 21,
1989, and had complete responsibility for its operations. Ziegler
also had the authority to keep necessary supplies and, if Cooke
was not present, Ziegler had the authority to order necessary
supplies.

M:.

Ziegler testified in defense that he had been a
supervisor in various mining operations for about 25 years and
during that time only one person suffered any lost-time injury

815

while working under his supervision.
Ziegler also testified that
his wife had recently died of cancer and that he owed
approximately $8,000 in hospital bills as a result of his wife's
illness. He testified that he owns his home, a 1979 car, a 1979
truck and no other significant property. He also testified that
he was not employed and had last worked in June 1990. Ziegler
further testified that a "doctor's office" found that he had
"black lung".
The evidence in this case clearly supports the charges that
the Respondent, Robert Ziegler, indeed was an agent of a
corporate mine operator and that he knowingly carried out a
violation a mandatory safety standard (i.e. the standard at
30 C.F.R. § 75.303(a)) by signing the preshift examiner's book on
August 21, 1989, while knowing of the existence of at least one
violative condition required to have been reported (i.e. the
insufficient water line) and by failing to report conditions that
were so obvious that he should have known of their existence and
should therefore have reported such other conditions, i.e.
excessive coal dust and the downed curtain.
The Commission dE?fined t:ne term "knowingly, 11 in Kenny
Richardson v. Secretary of Labor, 3 FMSHRC 8 (1981), 689 F.2d 632
(6th Cir. 1982), cert denied, 461 U.S. 928 (1983) as follows:
"Knowingly", as used in the Act, does not have any
meaning of bad faith or evil purpose or criminal
intent.
Its meaning is rather that used in contract
law, where it means knowing or having reason to know.
A person has reason to know when he has such
information as would lead a person exercising
reasonable care to acquire knowledge of the fact in
question or to infer its existence
We believe this interpretation is consistent with
both the statutory language and the remedial intent of
the coal Act. i I a person in a position to protect
employee safety and health fails to act on the basis of
information that gives him knowledge or reason to know
of the existence of a violative condition, he has acted
knowingly and
a manner contrary to the remedial
nature of the statute.
3 FMSHRC 160
ooo

The facts of this case clearly meet this definition.
The
ation was also serious in that by failing to report
such conditions, the miners were permitted to work in the
presence of at least three distinct hazardous conditions any one
of which, according to the undisputed evidence, could- have led to
reasonably serious injuries. The evidence suggests that Ziegler
demonstrated good faith in attempting to achieve rapid compliance
after notification of the violation. There is no evidence that
he has been charged with any previous violations under

816

section llO(c) of the Act.
The remaining criteria under section llO(i) of the Act i.e.
the size of the business of the operator charged and "the effect
on the operator's ability to continue in business" are of
questionable relevance to these proceedings under section llO(c).
However I find that the ability of the individual Respondent
under section llO(c) to pay a civil penalty may appropriately be
considered in determining the amount of the penalty. In this
case it is indeed undisputed that the. Respondent is unemployed
and.has been unemployed since June 1990, that he has significant
debts from the recent hospitalization of his now deceased wife
and that his significant assets appear to be limited to his house
and two 1979 vehicles. Under the circumstances I find that a
civil penalty of $100 is appropriate.
ORDER
Robert Ziegler is directed to pay a ci~il penalty of $100
within 30 days of the date of this decision:

..

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•

Gary:Mel1ck
Administrative Law Judge
Distribution:
J. Philip Smith, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Boulevard, 4th Floor, Arlington, VA 22203
(Certified Mail)
Forrest Ho Roles, Esq.u Smith, Heenan and Althen, 1380 One Valley
Square, Charlestonu WV 25301 (Certified Mail)
nb

817

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

2 SKYLINE. 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 91991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 90-194
A. C. No. 15-02709-03724

v.

Docket No. KENT 90-208
A. C. N0. 15-02709-03728

PEABODY COAL COMPANY,
Respondent

Camp No. 1
Docket No. KENT 90-441
A. c. No. 15-07166-03634
Sinclair Slope UG #2
DECISION

Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,
U. s. Department of Labor, Nashville, Tennessee,
for the Petitioner;
David R. Joest, Esq., Peabody Coal Company,
Henderson, Kentucky, for the Respondent.

Before~

Judge Weisberger

Statement of the Cases
In these cases, which were consolidated for a hearing, the
Secretary (Petitioner) seeks civil penalties for alleged
violations by the Operator (Respondent) of various mandatory
safety standards. Subsequent to notice, the cases were scheduled
for hearing in Nashville, Tennessee, on January 28-29, 1991. At
the hearing Harold M. Gablin, Steve Henshaw, and Donald Wayne
Ervin testified for Petitioner. Jim Ricketts, Brad Williams, and
William Plum testified for Respondent. Respondent filed a Post
Hearing Brief on March 11, 1991. Petitioner filed a Brief and
Argument on April 8, 1991.
Docket No. KENT 90-441
At the hearing, Petitioner indicated that it would be
vacating Citation No. 3416852. Accordingly, this Citation is
dismissed.

818

Subsequent to the hearing, on April 16, 1991, Petitioner
filed a Joint Motion to Approve Settlement.
In the Motion,
Petitioner indicated that Order No. 3416856 is to be vacated.
Accordingly, it is DISMISSED.
In addition, the Joint Motion seeks approval of a reduction
in penalty from $288 to $20 for a violation set forth in Citation
No. 3421270.
I have considered the representations and
documentation submitted along with the Motion, and conclude that
the proposed penalty of $20 is appropriate for the violation
charged, and it is approved.
Docket Nos. KENT 90-194 and KENT 90-208
I.
a.

Order No. 3419559 (KENT 90-194)

Violation.

On February 1, 1990, MSHA Inspector Harold M. Gablin
performed an inspection of Respondent's Camp No. 1 Mine. He
testified that in the First Main North belt entry, he observed
coal dust that extended the full width and length of the belt. 1/
Gablin also indicated that the accumulation was in the cross-cuts
and that essentially it was "very black'' (Tr. 148). He described
the material that had accumulated as not being spillage and
consisting of fine dust.
Gablin testified that he measured the
depth of the coal dust accumulation and it measured between a 1/4
to 1/2 inch.
Gablin issued a l04(d) (1) Order alleging an
accumulation of coal dust, including float coal dust in violation
of 30 C.F.R. § 75.400 which, as pertinent, proscribes the
accumulation of coal dust including float coal dust deposited on
rock dusted surfaces.
Donald Wayne Ervinv the Chairman of the Safety Committee,
who accompanied Gablin on his inspection on February l, testified
that he observed Gablin measure the depth of the accumulation;
and corroborated that it was 1/4 to 1/2 inch deep.
Ervin further
indicated that he also observed float dust in the cross-cuts and
the dust was dry and extended throughout the belt.

1
/

Based on the testimony of Gablin, I conclude that the
width of the belt was 20 feet.
Gablin indicated that the length
of the belt was 4000 feet.
Jim Ricketts, Respondent's mine
foreman for the third shift, indicated that the belt extended
4500 feet.
Brad Williams, Respondent's mine foreman for the day
shift testified that the length of the belt was 5600 feet.
I
conclude that the belt extended at least 4000 feet.

819

William Plum, Respondent's belt foreman on the day shift,
indicated that on the date of Gablin's inspection, he did not
observe any accumulations 1/4 to 1/2 inch deep.
Brad Williams,
Respondent's mine foreman on the day shift, indicated that the
accumulation was not as deep as 1/4 of an inch.
I place more
weight on the testimony of Gablin, as corroborated by Ervin, with
regard to the depth of the accumulation, inasmuch as he (Gablin)
actually measured it. Both Plum and Williams described the
material as gray and not black. However, Williams stated that a
gray color indicates that "· . • it's getting dust accumulation 11
(Tr. 264). Ricketts indicated that there was coal dust and rock
dust, but did not contradict the specific testimony of Gablin,
that there was float coal dust rib to rib the entire length of
the belt line. Also, Plum indicated that the worst area of the
accumulation was between the No. 12 cross-cut and the header.
Since the centers of the cross-cuts are 70 feet apart, the length
of this area is approximately 840 feet.
I conclude that it has
been established that on February 1, 1990, there was an
accumulation of float coal dust in violation of Section 75.400,
supra.
b.

UnwarrantabLe Failure.

According to Gablin, because of the extent of the
accumulation which extended the entire width of the entry, the
depth of the accumulation, and the fact that the entry was dry,
he concluded that the accumulation had been in existence for at
least 30 days.
Steve Henshaw, a belt examiner employed by Respondent on the
day shift, indicated that on January 25, 1990, he performed a
preshift examination of the belt entry in question, and that the
Preshift Mine Examiner's Report (Examiner's Report) contains the
11
following notation~
clean track side 54-52f 49-48, 43-30, dust
11
tail 21 & 12-drive
(Government Exhibit 7, page l)o He
said that on January 25, 1990, he had observed black float dust
from the tail through cross-cut 21 and from cross-cut 12 to the
drive, and the material extended from rib to rib. He testified
that the following day the spillage and float dust was still
thereo The Examiner's Report for the day shift of January 26,
contains the following notation for the belt entry at issue,
91
dust belt o11 (Government Exhibit 7 / Page 8)
Henshaw indicated
that the condition was getting worse daily, and on January 30, he
continued to observe float coal dust. The Mine Examiner's Report
for the day shift January 30, 1990, contains the following
notation for the First North belt.
no •
clean track side 54-52
& 49-48 & 53-40 & 34 & 1/2 & 32 & 1/2-30 & float dust at bottom
11
roller, dust all, . .
(Government Exhibit 7, Page 24).
Henshaw testified that the following day on January 31, the
accumulations of coal and float dust were still there. He
indicated that the condition of the belt with regard to dust was
the same on January 31, as it was on January 30. The preshift
o

o

o

o

0

0

820

Mine Examiner's Report for January 31, day shift states as
follows:
"clean areas listed 1-30-90, dust belt . . • "
(Government Exhibit 8, Page 32).
Jim Ricketts, the mine foreman for the third shift, midnight
to 8:00 a.m., (a nonproduction shift), essentially indicated that
unless there is a "trouble spot," or a hazard, each of
Respondent's approximately 7 to 10 miles of belt line is dusted
in a "cycle" (Tr. 241). He indicated that in a normal cycle each
belt would be rock dusted every 2 weeks. He indicated that on
the midnight to 8:00 a.m. shift February 1, 1990, he finished
rock dusting the two North belt and thus, according to his normal
cycle, would have rock dusted the First North belt the following
night.
The Preshift Mine Examiner's Report for the 4:00 p.m. to
midnight shift for January 25, 1990, does not contain any
notation of dust or the need to clean the First North entry. The
second shift Daily and On-shift Report (for January 25, 1990)
indicates as follow:
"cleaned on spillage 1st N. 11
(Government
Exhibit 7, Page 5). The Daily and On-shift Report for the second
shift January 29, 1990, contains the following notation:
"cleaned on spillage -1 N."
(Government Exhibit 8, Page 21). The
second shift Daily and On-shift Report for January 30, 1990,
contains the following notation:
''cleaned on spillage 1st N."
(Government Exhibit 8, Page 28). The Preshift Mine Examiner's
Report for the 4:00 p.m. to 12:00 midnight shift for January 31,
contains the follow note:
"1 N-cont. clean on track side."
(Government Exhibit 8, Page 35).
In order for it to be found that the violation herein
resulted from Respondent's unwarrantable failure the evidence
must establish that there was aggravated conduct on the part of
Respondent.
(Emery Mining Corporation, 9 FMSHRC 1997 (1987}).
For the reasons that follow, I conclude that the record
establishes that Respondent 1 s conduct did indeed reach
level.
Based on my observations of the demeanor of Gablin in this
regard, and because his testimony has not been specifically
contradicted or impeached, I accept his testimony that on
February 1, there was an accumulation of coal that extended
across the width of the entry and continued for its entire
length.
Furtherp the testimony of Gablin that he measured the
accumulation, and it was at a depth of between 1/4 to 1/2 half
inch, has been corroborated by Ervin. Respondent did not adduce
any evidence of any measurements taken that contradict Gabl
's
testimony. Hence, based upon the extent of the accumulation, its
depth, and fine consistency, as indicated by Gablin and Henshaw,
I conclude that the accumulation had existed for at least a few
days prior to February 1, 1990.

821

It is significant that, as evidenced by the Preshift Mine
Examiner's Report (Government Exhibit 7), and as explained by
Henshaw, in his testimony, he advised Respondent, on January 25,
26, 30, and 31, of the need to clean and dust the belt.
Further,
in the Examiner's Report of January 10, the areas noted by him to
be cleaned on the track side between cross-cuts 30 to 32 1/2,
34 1/2, 48 to 49, and 52 to 54, were the same areas previously
noted on January 25.
Additionally,
on January 31, Henshaw
specifically noted to clean the areas previously listed on
January 30.
The weight of the evidence fails to establish that
Respondent paid heed to Henshaw's notations, and cleaned the
accumulations in question. There are notations in the Examiner's
Report for the second shift, on January 25, 29 and 30, that
indicates as follows:
"clean on spillage, 11 (Government
Exhibit 8, Pages 5, 21, 28) for the First North, and on
11
January 31, as follows:
1 N cont. cleaned on track side. 11
(Government Exhibit 8, Page 35). Howeverr Respondent did not
adduce the testimony of any witness who had personal knowledge as
to exactly what cleaning, if any, was performed in the First
North belt.
Also, there is no-evidence that any cleaning had
been performed during the third or nonproduction shift, i.e.,
midnight to 8:00 a.m.
Indeed, Ricketts, the foreman of that
shift, could not establish the last time, prior to February 1,
1990, that the First North was cleaned.
Although the need to
clean or dust was not noted on the Presift Mine Examiner's Report
of the 4:00 p.m. to midnight shift of January 25, 26, 30, and 31,
the conclusion is inescapable that Respondent failed to take
action to eliminate the accumulations, in spite of having been
notified by Henshaw, who was termed by Brad Williams,
Respondent's day foreman, as being the "· . . an awful good belt
walker, probably the best belt walker we've got''
(Tr. 267) . 2/
- find that Respondent s failure to take action,
spite of
repeatedly informed by Henshaw of the need to clean or
dust,
not mitigated to any great extent by testimony from
Hicke.tts and Williams that, in contrast to Henshaw 1 s customary
practice, he neither personally advised Ricketts and Williams of
the need to dust and clean, nor did he underline or otherwise
ight any of his notations on the dates in question.
For all
these reasons I conclude that it has been established that the
violation herein resulted from Respondentis unwarrantable failure
See Emery,

'.Je

2
/

Also, Ricketts testified that the Preshift Mine
Examiner 1 s Report is examined prior to a shift in order to
correct hazards that are noted, and that Henshaw is "thorough"
and accordingly the first report he looks at is Henshaw's.
(Tr. 245) .

822

II.
a.

Citation No. 3419558 (KENT 90-208)

Violation

On February 1, 1990, Gablin issued to Respondent a
Section 104(d) (1) citation, inasmuch as he had observed 17 frozen
and damaged belt rollers in the First North belt line.
Specifically, he indicated that on February 1, "I seen rollers
that were partly worn in two, that they were worn completely in
two, • • • " (Tr. 125). He indicated that the roller at crosscut 42 1/2 was frozen.
It was Gablin's testimony that he spit on two rollers and he
heard "frying" (Tr. 55-56). Ervin also spit on a roller and "it
sizzled" (Tr. 228). Ervin testified that he observed damaged
rollers when he accompanied Gablin on his inspection on
February 1. He indicated that some rollers were "stuck, just not
rolling at all, and the bottom roller was turning into the
bottom" (Tr. 230). He also said that the cylinders of one or two
of the rollers had "worn" to the extent that the cylinder had
separated into two parts (Tr~ .. 230). Also, according to Ervin the
"bearings were out" (Tr. 229) on some rollers and one or two were
·running on the spindle.
William Plum, Respondent's belt foreman for the day shift,
testified that he changed the rollers at Gablin's direction on
February 1. He indicated that he could not find anything wrong
on some of the rollers that Gablin had him replace. According to
Gablin there were no rollers that he could tell were frozen.
However not much weight was accorded this conclusion, as he
stated on cross-examination that when he changed the rollers the
belt was not running, and it cannot be ascertained if a roller is
hot or frozen if the belt is not running. Also, it is noted that
he indicated that two rollers were broken in two.
It was Gabl
Gs testimony, which has not been rebutted, that
a hotv damaged, or frozen roller can cause friction which can
lead to a fire.
I thus conclude that it has been established that at least
two rollers were broken in two, two were worn, one was frozen,
and two were hot. Thus, the record supports a finding that
Respondent herein did violate 30 C.F.R. § 75.1725(A), as alleged
in the Citation.
30 C.F.R. § 75.1725(a) requires that machinery
and equipment be maintained in safe operating condition, and if
they are in an unsafe condition, they shall immediately be
removed from service.

b.

Unwarrantable Failure

Gablin testified that a frozen roller could happen within a
shift. However; in essence, he indicated that if a roller is hot
or damaged to the extent that the belt is running on the shaft,
there is an indication that this condition has been in existence
for a week or longer.
I note in this connection that Gablin
indicated that he did see the belts running on the shaft,
although he did not recall how many he saw. As explained by the
testimony of Henshaw and as evidenced by the Examiner's Report
(Government Exhibit 7), Respondent was advised of a hot middle
insert at cross-cut 45· on January 25, 26, and 30. A hot middle
insert, at cross-cut 51, was noted on the day shift Examiner's
Report on January 30 and again on January 31. 3 /
Also, Henshaw
in his Preshift Mining Examiner's Report noted rollers designated
as MI51 and BSI 38 1/2 on January 25, 26, and 30. On January 31,
he noted "hot" BSI 38 1;2. 4 ;
(Government Exhibit 8, Page 32)
There is no evidence that Respondent took any action to fix or
replace the rollers cited repeatedly by Henshaw, nor those
indicated by him repeatedly to be "hot. 11 Essentially for the
reasons stated in the discussion of Order No. 3419559, I do not
find sufficient circumstances to have mitigated Respondent's lack
of action herein.
Inasmuch as Respondent had been made aware of
the hot rollers and other rollers set forth in a Preshift Mine
Examiner's Report, under the heading "hazardous conditions," and
had failed to correct same, I conclude that the violation herein
was as the result of Respondent's unwarrantable failure (See
Emery, supra. )

3 ; It is significant to note that the Citation issued to
11
Respondent alleges as follow~
51 top center frozen and hot"
(emphasis added).

4 ; The Citation issued to Respondent lists ''38 1/2 top
center hot" and 11 51 top center frozen and hot.n among the
violative conditions.
It is also significant to note that
Henshaw, in his reports of January 30 and 31, under the heading
Violations and other Hazardous Conditions Observed and Reported,
listed "MI 41 1/2. iu
(Government Exhibit 8, Page 24, 32). The
Citation at issue lists 11 41 1/2 top center roller." Also,
Henshaw's report of January 25, 26, 30 and 31, lists "BSI 54 11 as
a hazardous condition.
(Government Exhibit 8, Page 8, 24, 32).
The Citation lists 11 54 top center."

824

III.

Citation No. 3419558 and Order No. 3429559
Significant and Substantial

According to Gablin, the violative conditions cited in both
Citation No. 3419558 and Order No. 3419559 are significant and
substantial. For the reason that follow, I agree.
As set forth above, infra, the record has established a
violation of Section 75.1725, supra, in that, on February 1,
1990, there were two hot rollers, two rollers that were in two
pieces, and one or two rollers rolling on their spindle. Due to
the heat and friction generated by these conditions a discrete
safety hazard of heating and sparks was thereby contributed to.
Indeed, although Ervin could not recall if he saw sparks, it was
Gablin's testimony that he did see sparks at cross-cut 51 from
either a belt roller or a frame.
In addition, according to
Ervin, one belt roller was turning in coal dust. Gablin
testified that the belt between cross-cuts 29 and 30 was dragging
in coal dust, raising coal dust in suspension. He also said that
other belts were also rolling in dust. /
The hazard of the belt
turning in dust was exacerbated by the fact, as testified to by
both Ervin and Gabl in,_ that tlie entry was dry. .Given all these
conditions, I conclude that there was reasonable likelihood that
the hazard of a fire or explosion contributed to by the presence
of extensive amounts of coal dust, as well as the rollers not
being in a safe condition, would resu~t in an injury of a
reasonably serious nature, especially considering the effects of
the resulting carbon monoxide, as testified to by Gablin.
Based
upon the above, I conclude that it has been established that the
violations herein cited in Citation No. 3419558 and Order
No. 3419559 were significant and substantial.
IV.

ao

Citation No. 3419558 and Order No. 3419559
Penalties

Citation No. 419558

Due to the extensive amounts of float coal dust
accumulation, its consistency, and the presence of ignition
sources discussed above,
, and considering that there was
dust in suspension between cross-cuts 29 and 30 and at crosscut 50, I conclude that the violation herein cited in Citation
No. 3419558 was of a high level of gravity. Essentially, based
5

/
I find the testimony of Plum that the belt was running in
a "heated bottom" (Tr. 276, sic.) consisting of clay, inadequate
to rebut the specific testimony of Gablin that the belt between
the 29 and 30 cross-cut was dragging in coal dust. Also, I note
that Plum te~tif ied that in two places the belt was in contact
with the float coal dust that was mixed with fire clay.

825

upon the same factors set forth above, (II.b., infra, I conclude
that Respondent's negligence herein was high. Taking into
account the remaining factors set forth in Section llO(i) of the
Act, as stipulated to by the Parties, I conclude that a penalty
of $1000 is appropriate for the violation cited in this citation.
b.

Order No. 3419559

The record establishes specifically, that there were two hot
rollers at 38 l/2 and 51 cross-cuts, two rollers that had been
broken in two, and one or two rollers that were rolling on their
spindle.
In general, Gablin testified that two other rollers
were damaged or frozen, but did not specify the exact nature of
the damage. Although his Citation listed various rollers, he
could not specify the exact unsafe problem with regard to the
rollers cited. Taking into account the fact, as explained above,
III., infra, that damaged rollers could produce heat and sparks,
and taking into account the extensive amounts of coal dust and
dust in suspension, I conclude that the violation herein was of a
high level of gravity.
Further, based upon essentially the same
reason set forth above, II (b)._, infra, I conclude that Respondent
herein acted with a high degree of negligence.
I conclude that a
penalty of $1000 is proper for the violation found herein.
ORDER

It is ORDERED that Respondent shall, within 30 days of this
Decision, pay $2020 as a civil penalty for the violations found
herein.
It is further ORDERED that Citation No. 3416852 and Order
No. 3416856 be DISMISSED.

ge~r

Administrative Law Judge

Distribution~

Thomas A. Groomsr Esqr Office of the Solicitorr U. S. Department
of Labor 1 2002 Richard Jones Road, suite B-201, Nashville, TN
37215
(Certified Mail)
David R. Joestr Esq.r Midwest Division Counsel, Peabody Coal
Companyr 1951 Barrett Court, P. O. Box 1981, Henderson, KY 424201981 (Certified Mail)
dcp

826

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

MAY

91991

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 90-80
A.C. No. 36-07630-03503

v.
Mine Hill Strip
RANDY COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Koutras

The petitioner has filed a motion pursuant to Commission
Rule 30, 29 C.F.R. § 2700.30, seeking approval of a proposed
settlement of thi.s matter. The initial proposed civil penalty
assessment for the contested violation is $98, and the respondent
has agreed to settle the matter by paying a civil penalty
assessment of $78.
In support of the proposed settlement, the
petitioner has submitted information pertaining to the six
statutory civil penalty assessment criteria found in section
llO(i) of the Act, a discussion of the violation in question, and
a reasonable justification for the reduction of the initial
proposed civil penalty assessment.
I conclude and find that the
proposed settlement is reasonable and in the public interest.
The motion IS GRANTED, and the settlement IS APPROVED.
ORDER
The respondent IS ORDERED to pay a civil penalty assessment
in the amount of $78 in satisfaction of the violation in
question.
Payment is to be made to MSHA within thirty (30) days
of the date of this dec~sion and order, and upon receipt of
payment, this matter is dismissed.

A~~A-.fl~

~~~rative Law Judge

827

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

22041

MAY 91991

CIVIL PENALTY PROCEEDING

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

Docket No. VA 90-44
A. C. No. 44-05415-03563

v.
No. 1 Mine
BLACKFOOT COAL COMPANY, INC.,
Respondent
DECISION APPROVING SETTLEMENT

Before:

Judge Broderick

On May 8, 1991, the Secretary filed a motion for approval of
a settlement reached by the parties in this case. The violations
were originally assessed at $4273, and the parties proposed to
settle for $3273.
The docket contains three citations and a 104(d) (1) order
issued following a nonfatal roof fall accident. The fall caused
a fractured pelvis of a continuous mining machine helper.
Citation No. 3351176 charged a violation of 30 C.F.R. § 75.203
because a pillar block had been mined in excess of the maximum
width allowed by the Roof Control Plan. The violation was
assessed at $2000. The motion proposes a reduction to $1500
because (1) the inspector's diagram does not accurately reflect
the condition that existed in that it shows more coal having been
removed than was actually the case; (2) the violation concerns
the condition of the pillar block between entries 5 and 6; the
roof fall occurred between entries 4 and 5. Order No. 3351928
charged a violation of 30 C.F.R. § 75.220 because posts or
timbers had not been installed as required by the Roof Control
Plan. The violation was assessed at $2000. The motion proposes
a reduction to $1500 because it appears that the posts or timbers
were not designed to and would not prevent a roof fall. The
other three citations were originally assessed at $91 each, and
the motion proposes that the assessed amount be paid.
I have
considered the motion in the light of the criteria in
Section llO(i) of the Act, and conclude that it should be
approved.

828

Accordingly, the settlement is APPROVED and Respondent is
ORDERED TO PAY the sum of $3273 within 30 days of the date of
this Decision.
"1

.

)1,:1v?:5 ,4ffrv u{/J"l ~1-

.;J James A. Broderick

Administrative Law Judge

Distribution:
Ronald E. Gurka, Esq., Office of the Solicitor, u. s. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
Mr. Sam Blankenship, President, Blackfoot Coal Company, Inc.,
P. o. Box 1802, Bristol, VA 24203 (Certified Mail)
dcp

S29

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

MAY 91991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
DOUGLAS B. TUTTLE,
Applicant
v.

DISCRIMINATION PROCEEDING
Docket No. WEVA 91-621-D
HOPE CD 91-08
Huffman Surface Mine

A & M TRUCKING COMPANY,
Respondent
DECISION
Appearances:

Tina Gorman, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for the
Applicant;
Edward Dooley, Esq., Middlesboro, Kentucky, for
the Respondent.

Before:

Judge Melick

case is before me upon the request for hearing filed by
A & M Trucking Company (A & M) under section 105(c) (2) of the
Federal
Safety and Health Act of 1977, 30 u.s.c. § 801
seq r the 00 Act e 0' and under Commission Rule 44 (b) , 29 C. F. R.
§ 2700.44(b), to contest the Secretary of Labor's Application for
Reinstatement on behalf of miner Douglas B. Tuttle:
These proceedings are governed by Commission Rule 44(c).
That rule provides as follows:
The scope of a hearing on an
for
temporary reinstatement is limited to a determination
the Judge as to whether the miner's complaint is
frivolously brought. The burden of proof shall be upon
the Secretary to establish that the complaint is not
brought. In support of his application for
temporary reinstatement the Secretary may limit his
presentation to the testimony of the complainant. The
respondent shall have an opportunity to cross-examine

830

any witnesses called by the Secretary and may present
testimony and documentary evidence in support of its
position that the complaint is frivolously brought.
This scheme of procedural protections, including the
statutory standard of proof provided by section 105(c) (2) of the
Act, to an employer in temporary reinstatement proceedings far
exceeds the minimum requirements of due process as articulated by
the Supreme Court in Brock v. Roadway Express, Inc., 481 U.S. 252
(1987).
See JWR v. FMSHRC, 920 F.2d 738 (11th Cir. 1990).
Within this framework of law it is clear that the
determination of whether the Secretary's application on behalf of
a miner was frivolously brought (the functional equivalent of a
"reasonable cause to believe" standard) is to be made on the
basis of evidence adduced at, and as of the time of, the hearing
before the Commission Administrative Law Judge under Ruie 44(c).
The complaint of discrimination accompanying the Secretary's
application herein alleges that the discriminatory firing of
Mr. Tuttle took place-on December 17, 1990. The accompanying
affidavit required by Commission Rule 44{a), certifies, however,
that the act of discrimination took place on January 31, 1991,
and the credible evidence adduced at hearing shows that
Mr. Tuttle performed no work for A & M after December 11,
1990. 1 It is clear, in particular from the last computerprinted "weigh ticket" corresponding to the No. 120 haulage truck
Tuttle had been operating on the evening shift that Tuttle last
worked for A & M on December 11, 1990 (Exhibit R-5).
Further, it
is not disputed that the truck drivers working for A & M received
their pay twice a month with the first paycheck (covering the
first of the month through the 15th of the month) due on the 25th
of the month"
From the undisputed testimony of A & M foreman
Ronnie
lliamsJ
clear that after Tuttle had terminated his
work relationsh
A & M, he came to the mine site sometime
before December 25, 1990, requesting his final paycheck.
since
the check due on December 25th would correspond to work performed
between December 1 through December 15, and admittedly this was
last paycheckr it
clear that Tuttle did not work for A & M
after December 15 19900 As Williams explained at hearing, if
Tuttle had hauled coal after December 15th, he would not have
been paid until January 10, 1991.
Indeed Tuttle himself
acknowl
that he went to the mine site on December 21st to
pick up this final paycheck and that December 25th would have
been the normal corresponding payday.

1

The Secretary's counsel represented at hearing that the
affidavit was incorrect, but she has not submitted any corrective
affidavit.

831

Given these serious conflicts, I am compelled to conclude
that there is no reasonable cause to believe that any discharge
or any other discriminatory event occurred as alleged in either
the complaint or the affidavit. 2 Accordingly, I cannot find
that the complaint was not "frivolously brought." commission
Rule 44(c), supra; JWR v. FMSHRC, 920 F.d 738 at p. 747
(11th Cir. 1990).
However, even assuming, arguendo, that the Secretary had
properly charged that the discriminatory event occurred on
December 11, 1990, the individual complainant's allegations in
own testimony at hearing fail to state a claim cognizable
under the Act.
Since the allegations of discrimination are
facially insufficient, it cannot be said that the complaint
herein was not frivolously brought.
A miner's refusal to perform work is protected under section
105(c) (1) of the Act, if it is based on a reasonable, good faith
belief that the work involves a hazard. Fasula v. Consolidation
Coal Company, 2 FMSHRC 2786 (1980), reversed 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). According to the complainant,
on what turned out to be his last day of work, he first
pre-tripped (pre-shifted) the No. 120 haulage truck he was to
operate that evening. He observed that it had been "down" the
day before and new brakes had been installed. After driving his
first load to the dumping location, he noted that the brakes
would not hold on an incline and accordingly reported that the
brakes needed adjustment.
A & M representative Anthony Mayes stated that he overheard
Tuttle complain on his radio that he had to use his hand brake to
on the slope so Mayes directed Tuttle to return to the truck
ot. and have the brakes adjusted.
Mayes then followed Tuttle to
the 00
According to Tuttle, Mayes first told him to exchange
truck
truck No. 129 then changed his mind and told him to
take truck No. 127. Tuttle testified that as he began
npre-tripping 11 truck No. 127 he heard the air leaking out.
to Tuttle, the
was leaking so badly that when he
~eleased the parking brake, the release button would not remain
the released position but would kick back out because of
fficient air pressure.
Indeed, according to Tuttle, the

2 The Respondent also disputes the Secretary 1 s assertion that
Tuttle was an employee rather than an independent contractor and
maintains that independent contract miners are not entitled to the
section 105(c) protections. In light of the decision herein, it is
not necessary to reach these questions.

832

brakes were locked to such an extent that the truck could not be
moved.
While denying that there was any leak in the air brake
system of truck No. 127 and that Tuttle had ever pre-shifted the
truck that night, Mayes corroborated Tuttle's testimony that when
the air pressure is inadequate the parking brake will set itself
and completely lock the brakes. Indeed, according to Mayes, once
the brakes lock up you must repair the air leak before you can
ever move the truck again.
According to Tuttle, after he pre-tripped the truck he told
Mayes that the truck was unsafe. Mayes purportedly then told
Tuttle to drive it or go home. Finally, after Tuttle allegedly
refused to drive it he asked Mayes if he should return for his
regular shift the next day. Mayes purportedly responded that if
he did not drive the truck that shift he was not to return.
Tuttle testified that he thereafter went home, believing that he
had been fired.
While Mayes generally denies this version of events, and
indeed the allegations are not completely rational, it is not
necessary to resolve these conflicts since I find Tuttle's
allegations to be facially insufficient in any event to state a
claim under the "work refusal" analysis.
Indeed, according to
the credible evidence of record it would have been mechanically
impossible for the truck to have been driven in its alleged
condition. The parking brakes would have been locked and the
truck could not have been moved until the air leak was repaired.
The truck could not have been operated without repairs and Tuttle
therefore faced no hazard. Accordingly, Tuttle could not have
entertained a good faith, reasonable belief in a hazard and there
is no basis on this record for a violation under section
105(c) (1) of the Act. Therefore, it must be concluded that the
complaint was indeed frivolously brought.
ORDER
The Application for Temporary Reins~atement h rein is
denied.
~

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\
c:;ary Me ,ick
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Administjrative Law Judge
'1

833

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Distribution:
Tina Gorman, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Room 403, Arlington, VA 22203
(Certified Mail)
Edward Dooley, Esq., P.O. Box 955, Middlesboro, KY 40965
(Certified Mail)
/fb

834

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

MAY 13 1991
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 91-11
A.C. No. 11-00585-03769
Mine No. 10

PEABODY COAL COMPANY,
Respondent
,DECISION

Appearances:

Before:

Miguel J. Carmona, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois,
for the Petitioner;
Davids. Hemenway, Esq., Thompson & Mitchell,
St. Louis, Missouri for the 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
seq., the "Act, 11 charging the Peabody Coal Company (Peabody)
with two violations of mandatory standards and proposing civil
penalties of $2,700 for those violations. The general issue
before me
whether Peabody violated the cited regulatory
standards and, if so, the appropriate civil penalty to be
assessed in accordance with section llO(i) of the Act.
Citation No. 3035886, issued pursuant to section 104(d) (1)
of the Act, alleges a violation of the mandatory standard at
30 C.F.R. § 75.517 and charges as follows~ 1
1

section 104(d) (1) of the Act 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 as
could significant and substantially contribute to the
cause and effect of a coal or other mine safety or health
hazard, and if he finds such violation to be caused by an

835

The tr.ailing cable supplying direct current power
to the #21 Shuttle car had been damaged to the extent
that a bare wire was visible. The cable had a nick in
it 31 inches long exposing the bare wire and had been
partially covered with black tape. This tape did not
provide adequate insulation to the wire.
17 similar
violations have been issued thus far in fiscal year
1990, and 26 were issued in fiscal year 1989. In the
past, these similar violations of 75.517 have been
discussed with mine management and the operator knows a
problem with repeat violations exists at this mine.
The citation was subsequently modified as follows:
"section 1, item 8, is hereby modified to include the physical
location of No. 21 shuttle car which is the l-east, 3-south, 6east, main south (006) coal producing unit."
The cited standard, 30 C.F.R. § 75.517, provides that "power
wires and cables, except trolley wires, trolley feeder wires, and
bare signal wires, shall be insulated adequately and fully
protected".
Peabody admits the violation charged herein but maintains
that it was not "significant and substantial" nor the result of
"unwarrantable failure".
It further maintains that it was not
negligent in causing the violation.
The observations by Inspector Edward Banovic of the Federal
Mine Safety and Health Administration (MSHA) regarding the .
violation are not disputed but only his conclusions regarding
gravity, negligence and whether the violation was "significant
contijd fno 1
unwarrantable failure of such operator to comply with
such mandatory heal th 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,a nd
to be prohibited from entering, such. area until an
authorized representative of the Secretary determines
that such violation has been abated.

836

and substantial" and due to the "unwarrantable failure" of the
operator to comply with the standard. During the course of a
regular underground inspection on May 10, 1990, Inspector Banovic
examined the cable to the cited shuttle car and immediately
noticed a cut in the cable exposing bare wires inside. Banovic's
testimony that the damaged area and the bare exposed wires were
readily visible is unchallenged. There had been some black tape
placed over a portion of the cut but the cut in the cable
extended beyond the taped area.
In any event it was not an
approved tape for insulation purposes. According to Banovic the
power cable to the shuttle car was energized when he arrived in
the unit and when he asked to examine the cable the Respondent
elected to operate the car to unspool the cable.
Banovic concluded that the 300 volts of direct current power
supplied to the shuttle car through the cable made it reasonably
likely that someone coming in contact with the shuttle car would
suffer fatal injuries. He noted that the cable to the car had
been energized and that, when unspooled, the defective part of
the cable lay on the mine floor.
Banovic also noted that as the
cable would be rewound it could-come into contact with the metal
frame of the shuttle ear. According to Banovic, persons walking
by 1 such as a foreman, touching the machine and persons carrying
the cable would therefore be exposed to a shock hazard reasonably
likely to result in fatal injuries. Banovic also opined that the
cable could cause a fire within the reel compartment of the
shuttle car thereby in this manner also creating a "significant
and substantial" hazard. Within this evidentiary framework it is
clear that the violation was indeed serious and "significant and
substantial". Mathies Coal Company, 6 FMSHRC (1984). The
credible expert testimony of MSHA supervisory Inspector Lonnie
Conner fully corroborates these findings.
In reaching these conclusions I have not disregarded
Peabody 0 s claims that it had an inspection policy that would have
resulted in discovery of the defective cable. Absent evidence of
actual effective enforcement of such a policy however I can give
but little weight to this self-serving declaration.
Banovic also opined that the violation was the result of
unwarrantable failure 11 and high negligence. He based his
conclusion upon evidence that the cut in the cable was obvious
and that it had been improperly covered with tape which failed to
provide adequate insulation and which was even in violation of
the operator 1 s own corrective procedures. He inferred from this
evidence that the damage to the cable should therefore have been
known to the operator and that, in addition, inadequate and
improper ac~ion had been taken in an attempt to correct the
problem.
I agree. Clearly, this evidence shows that the
operator knew or should have known of this condition and that it
failed to abate the condition because of a lack of due diligence,
indifference or lack of reaonsable care. Quinland Coals, Inc.
10

837

10 FMSHRC 705 (1988). As the Commission stated in that case this
formulation describes aggravated conduct constituting more than
ordinary negligence within the meaning of the Emery Mining Corp.,
9 FMSHRC 1997 (1987) decision.
In reaching his negligence findings Banovic also relied upon
evidence of Peabody's repeated violations of the same mandatory
standard over the recent past. In this regard Supervisory
Inspector Conner observed that there had been 18 citations at
this mine for violations of the mandatory standard at issue
during fiscal year 1990 up to the date of the instant citation,
May 10, 1990, (Exhibit P-4). All of these violations involved
defective power cables and most specifically involved defective
trailing cables. Moreover four of the violations were found in
the two months preceding the instant violation. While those
violations occurring most closely in time to the instant
violation are most significantly related to the issue of
negigence herein I find all of the violations to be sufficiently
related in time to be probative on the issue of operator
negligence herein.
Clearly such a definitive pattern of repeated
similar violations over a rel:atively brief period of time shows
in itself such indif:rerence and lack of reasonable care as to
constitute such gross negligence and aggravated acts and/or
omissions as to warrant the "unwarrantable failure" findings
herein.
Youghiogheny and Ohio Coal Company, 9 FMSHRC 2007
(1987)
0

Conner further testified that he conducted several meetings
with management of the subject mine in March, June and November
1989 emphasizing the problems of these repeated violations.
According to Mine Superintendent William Raetz, following the
November meeting with MSHA officials, he met with his supervisory
personnel and orally instructed them to physically walk and check
their trailing cables before operation of equipment. There is no
evidence however that this practice was actually thereafter
followed and indeed a succession of violations of the same
standard continued after this meeting. Thus, in spite of
specific notice of these problems Peabody failed to take
effective corrective action. This too is evidence demonstrating
aggravated conduct and omissions. Under the circumstances the
evidence separately and collectively warrants a finding of gross
negligence and 11 unwarrantable failure".
Emery Mining co., supra;
Youghiogheny and Ohio Coal Co., supra; Quinland Coals. Inc.,
supra.
Order No. 3035889, also issued pursuant to section 104(d) (1)
of the Act, alleges a "significant and substantial" violation of
the standard at 30 C.F.R. § 75.400 and charges as follows:
Accumulations of coal and coal dust were present under
the 7th west belt at the transfer point of the 2nd
north belt line. There were two piles of coal 15 feet

838

long and 30 inches high rubbing the belt and rollers
were turning in coal. The drive of the 2nd north had
coal dust and coal packed in it rubbing the belt and
packed up to 24 inches high on the drive roller. Two
piles were present between the head roller and drive
roller 30 inches high and 4 feet wide by 4 feet long.
The standard at 30 C.F.R. § 75.400 requires that "[c]oal
dust, including float coal dust deposited on rock-dusted
surfaces, loose coal, and other combustible materials, shall be
cleaned up and not be permitted to accumulate in active workings,
or on electric equipment therein." Peabody also admits this
violation but maintains that it was neither a serious violation
nor was it the result of high negligence or "unwarrantable
failure".
Inspector Banovic testified that on May 18, 1990, before
entering the underground portion of the No. 10 Mine, he inspected
the mine examiner's book and noted that coal dust was reported to
exist at the cited transfer point in about 7 of the preceding
shift reports. Once underground, Banovic found that excessive
loose coal and coal dust existed at 5 locations. There were two
piles under the 7th west belt line 15 feet long and about 30
inches high and the coal was being rubbed by the belt rollers and
the belt. There was another pile around the second north drive
roller. He concluded that this coal had been packed for up to a
week. Dust had been compressed around the 30 inch diameter
roller. There were also two piles between the second north drive
roller and the transfer point. According to Banovic these piles
were "fresh" and looked as though they had been deposited within
24 hours.
Inspector Banovic concluded that coal dust in contact with
the belt and rollers provided an ignition source from friction.
He also noted that ventilating air proceeds inby to two working
units and that any smoke from a fire would proceed over working
miners possibly resulting in suffocation. The inspector noted
that an electric motor runs the belt drive and could also provide
an ignition source. He observed that some of the coal piles
along the seventh west belt line were also not in an area covered
by fire suppression devices.
Under the circumstances Banovic 1 s
expert opinion that the violation was "significant and
substantial" is clearly supported by a preponderance of the
evidence. Mathies Coal Co., supra.
Banovic concluded that the violation was the result of high
negligence since the cited area had been reported several times
in the preshift book as having had loose coal. He noted that no
one was then present to clean up these conditions and that it
took five persons working four hours to clean up the cited coal.
The inspector also concluded that the belt had recently been
running because, in his presence, several foremen were asking on

839

the telephone why the belt was down. He felt that the violation
was the result of "unwarrantable failure" not only because the
condition had been recorded in the preshift examination book that
morning and no ene was then working to correct the condition but
that violations of the same standard had been repeatedly
occurring at this mine.
According to Supervisory Inspector Conner, he and other MSHA
officials met with Peabody officials in March, June and November
1989, to bring to management's attention, among other things, the
frequent and repeated violations of the standard at issue herein.
Conner observed that there had been no decrease in these
violations even after these meetings.
According to Mine Superintendent Raetz, in May 1990, at the
time of the order herein, they employed 42 "belt shovellers" to
clean up the belt lines. He acknowledged that the intersection
at issue in this case was a dumping location and was frequently a
problem area. While Raetz had no personnel knowledge concerning
the violation herein he thought that the coal pile-ups ~ould have
resulted from the failure of-the belts to coordinate after one
belt went down from a roof fall.
If that had occurred and the
other belts continued to operate the coal spillage could, he
speculated, have resulted.
Finally, Raetz testified that it was his understanding that
when safety hazards are reported in the preshift book the
oncoming shift foreman has until the completion of his 8 hour
shift to abate any reported hazards. Raetz noted that an
individual had been assigned to correct the instant violation
but that she was working in another area of the mine at the titne
the violation was cited. It was Raetz' opinion that she would
have arrived to clean up the cited violations by the end of her
shift.
is noted however that in order to abate the instant
violation it required 5 miners working 4 hours. Accordingly
Raetz 1 opinion that one person working part-time to clean up the
cited violation in less than one shift is not credible. This
evidence clearly supports a finding that under all the
circumstances the operator knew or should have known of these
loose coal and coal dust deposits and failed to abate the
violative conditions because of lack of due diligence,
indifference or lack of reasonable care. Under the facts of this
case the negligence was particularly aggravated.
Raetz also testified that following the meeting with MSHA
officials he gave oral instructions to his supervisors to correct
coal dust problems. Although Raetz indicated that Peabody
maintains a computer record of disciplinary action, including in
some cases reference to the specific regulatory standard which
the disciplined employee failed to correct, he could not state
whether any disciplinary action had in fact been taken for
employees failing to correct any of the previous violations of

840

the standard at issue. Indeed the record shows that Peabody had
been previously cited for violations of the standard at issue
herein 17 times between October 30, 1989 and May 10, 1990. This
evidence is relevant in showing a pattern of lack of due
diligence, indifference or lack of reasonable care and supports
the finding that the violation herein was the result of gross
negligence and aggravated acts and/or ommissions constituting
"unwarrantable failure". Youghiogheny and Ohio Coal Co., supra,
Emery Mining, supra, and Quinland coals, Inc. supra.
Considering all of the criteria under section 110(i) of the
Act it is clear that the penalties proposed by the Secretary in
this case are appropriate.
ORDER
Citation No. 3035886 is affirmed as a citation under section
104(d) (1) of the Act. Order No. 3035889 is affirmed as an order
under section 104(d) (1) of the Act. Peabody Coal Company is
directed to pay civil penalties of $1,300 and $1,SOO respectively
for the violations alleged in the above ci..tation [' n. d order within
30 days of the date of this decisf.'fi.
'
I ,.

/J

/vi1 _,{iu[i~

Cf ry Me ick .ve\

Adminii, rative

aw Judge

,_ ~

Distribution:
Miguel J. Carmona, Esq., U.S. Department of Labor, Office of the
Solicitor, 230 S. Dearborn Street, Chicago, IL 60604
(Certified Mail)
David So Hemenway, Esq" Thompson & Mitchell, One Mercantile
Center Suite 3400; St" Louis, MO 63101 (Certified Mail)
nb

841

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

22041

MAY 201991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
On behalf of
THOMAS PROUDFOOT,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEVA 91-126-D
MSHA Case No. MORG CD 91-01
Flaggy Meadow Mine

v.
MOHIGAN MINING COMPANY,
Respondent
ORDER OF DISMISSAL

Before:

Judge Melick

The Complainant, Secretary of Labor, requests approval to
withdraw its complaint in the captioned case with the consent of
the represented individual, Thomas Proudfoot. Under the
circumstances herein, permission to ti thd:paw is gra·n.·,.·ted.
29 C.F.R. § 2700.11. This case is t ~re~"re dismis~ed.
ii

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Distribution~

,I
~

James V. Blair, Esq., Office of the Solicitor, U.S. Department of
Labor, Ballston Towers #3, 4015 Wilson Boulevard, Room 516,
Arlington, VA 22203 (Certified Mail)
J. Douglas Crane, Esq., Mohigan Mining Company, Inc., 153 Walnut
Street, Morgantown, WV 26505 (Certified Mail)
Mr. Thomas Proudfoot, 204 Serpell Avenue, Belington, WV 26250
(Certified Mail)
/fb

842

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

22041

MAY 2 0 1991
CONTEST PROCEEDING

EAGLE NEST, INCORPORATED,
Contestant

v.

Docket N. WEVA 91-293-R
Citation No. 3751114;
3/20/91

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

Eagle Nest Mine
Mine ID 46-04789
DECISION

Appearances:

David J. Hardy, Esq., Jackson & Kelly, Charleston,
West Virginia, for Contestant;
Pamela S. Silverman, Esq., Office of the
Solicitor, U. s. Department of Labor,
Arlington, Virginia, for the Respondent.

Before:

Judge Weisberger

Statement of the Case
On April 9, 1991, the Operator, Eagle Nest, Incorporated
(Contestant), filed a Notice of Contest alleging that Citation
No. 3751114 issued to
on March 20, 1991, is invalid and should
be vacated. Contestant also filed on April 8, 1991, a Motion for
Expedited Proceedings. In a telephone conference call initiated
by the undersigned, with Counsel for both Parties on April 11,
1991, the matter was set for hearing in Charleston,
West Virginia, for April 16, 1991. At the hearing, Ronnie Joe
Dooley, Franklin Miller, and James P. Addison testified for the
Secretary (Respondent). Donnie G. Roberts and Steve
'
Alexander, Jr., testified for Contestant. At the conclusion of
the hearing, pursuant to the request of the Parties, they were
granted until May 1, 1991, to file Proposed Findings of Fact and
a Brief, and were granted until May 8, 1991, to file a reply.
Pursuant to a request by Respondent, not opposed by Contestant,
these dates were extended to May 6 and May 13, respectively.
the
parties each filed a post-hearing brief on May 6, 1991. Reply
briefs were filed on May 15, 1991.

843

Findings of Fact and Discussion
I.

Introduction

On March 20, 1991, while making· a spot inspection of the
longwall, A panel, at Contestant's Eagle Nest Mine, Ronnie Joe
Dooley, an MSHA Inspector, issued Citation No. 3751114 alleging
as follows: "At least one entry of the longwall tailgate return
entry could not be made safely in its entirety. Water had
accumulated in depth exceeding 16 inches at survey spad No. 3777
and various locations outby. This condition creates a hazard to
those persons required to make weekly examinations" (sic). The
Citation alleges a violation of 30 C.F.R. § 75.305.
Section 75.305, supra, provides, as pertinent, that, "At least
once a week," an examination of the return entry "in its
entirety," shall be made. Section 75.305, supra, requires that
the examinations shall be made for "hazardous conditions,"
including tests for methane, and for compliance with mandatory
health or safety standards, and that the examiner shall place his
initials and the date and tirm~ at the places examined, and, "if
any hazardous condition is found, such condition shall be
reported to the operator promptly." Section 75.305, supra,
further provides that "Any hazardous condition shall be corrected
immediately."
In essence, it is Contestant's position that the Citation is
invalid, in that it does not allege that a weekly examination was
not made, or that hazardous conditions noted in the previous
examination were not corrected. Contestant further argues, in
essence, that an accumulation of water up to 34 inches does not,
constitute a hazardous condition. For the reasons that follow, I
not find merit in Contestant's arguments.
Respondent is correct in its assertion, that, on its face,
Citation in issue does not allege that a weekly examination
was not performed or that hazardous conditions previously noted
were not corrected. Neither did the testimony of Dooley set
forth such allegations. Further, a record of weekly examinations
at the subject mine contains the following note: "A-Panyl
Return-Ch4 Neg-Water 4 feet deep at #23 Pump 3/14/91 ... 11 I
(Government Exhibit 4). Hence, at the time the Citation was
sued, March 20, 1991, there is evidence, which has not been
impeached or contradicted by Respondent, that an examination had
been made within the immediate preceding 7 day period, and this
examination did report the existence of water 4 feet deep in the
entry in question. However Section 75.305, supra, requires, in
essence, that any "hazardous condition" that is found during a
1; A signature appears after the date of 3/14/91, but the
signature is not legible.

844

weekly examination, be reported to the Operator and "shall be
corrected inunediately." Hence, it must be resolved whether, on
March 20, 1991,_ the date of Dooley's inspection, there had been a
report of hazardous conditions which had not been corrected
inunediately.

II. Hazardous Condition
On March 14, 1991, an examiner reported water 4 feet deep at
#23 pump. On March 19, 1991, Ronnie G. Roberts, Contestant's
longwall coordinator, .examined the entire return entry in
question. At the #23 pump he observed that there w~s an
accumulation of water approximately 48 inches deep. I
On March 20, 1991, when Dooley examined the entry in
question, he walked down the entry outby from the face and
indicated that he encountered water, and at ~pad 377 (crosscut 40). He said that when the water had reached the top of the
16 inch boots he was wearing, he stopped and did not proceed
further.
He indicated that the water extended across the width
of the entry, which he approximated as being 20 feet, and
extended outby as far-as he could.see.
Essentially, it is Contestant's position that the
accumulations of water did not constitute such a hazard as to bar
an examiner from performing an examination of the entire entry.
In essence, Roberts opined that water at a level of 16 inches is
not a hazard, as one could walk around it while staying within
the walkway, wearing hip boots provided by Contestant. He
indicated that the water could be traversed safely by walking
slowly and carefully by keeping one foot placed in a firm
position and using the other to feel for underwater hazards.
Roberts indicated that those miners required to perform
examinations in the area could be ~rained in this fashion.
In essence, Roberts 1 testimony in this regard was
corroborated by Steve Alexander, Jr., the superintendent of the
mine in question. Also, Roberts and Alexander indicated, in
essence, that hazards encountered on the floor of the entry
underwater, such as rocks, mud, and slippery surfaces would
similarly exist in
absence of water.
In this connection,
Alexander stated that there have been more accidents due to falls
in dry areas than in areas with water.
According to Dooley, the accumulations of water that he
observed on March 20, 1991, were murky, and the bottom could not
been seen. Accordingly, he opined that one walking in the area
would be exposed to slipping hazards occasioned by mud on the
2;
Roberts testified that he is authorized to
examinations pursuant to Section 75.305, supra.

845

make

bottom of the mine floor, as well as submerged rocks, and
abandoned pieces of wood from cribs and pallets.
In essence, he
opined that if a person wearing 16 inch boots would enter water
at a lever higher than that, the water would enter his boots
making them heavier and, in essence, decreasing his agility if he
were to slip and lose his balance. He indicated that this
problem would be exacerbated by wearing hip boots and
encountering water at a lever higher than the boots, allowing
water to enter and fill the boots.
Dooley opined that one slipping and falling could suffer
injuries such as a broken limb. He further indicated that a
fatality could occur by drowning,
if a person in falling would
hit his head and lose consciousness. Also, according to Dooley,
a fatality by drowning could also result if an examiner loses his
balance while walking in the water and is unable to arise from
the water due to the weight of the water in his boots.
I thus find, based on the testimony of Dooley, that the
accumulation of water herein did present a hazard to those miners
who would have to traverse it to make an examination. I find
that at best the testimony, of Roberts and Alexander, indicates
that steps may be taken to minimize the degree of exposure to the
hazards. However, their testimony does not negate the fact that
the accumulation of water herein did constitute a hazardous
condition.

III.

Innnediate Correction

According to Roberts, Contestant had, prior to the opening
of the longwall panel in question, anticipated problems with
water accumulation and attempted to alleviate these problems by a
number of methods. Test were taken which indicated that the
water in the areas in question came from the surface, and
attempts were made to divert surface streams from leaking into
these areaso
Also, surveys were made to establish the low points
along
floor of the entry in question.
Electrical pumps were
then installed in these locations to pump water out of the entry
through a 10 inch pipe, which had replaced a 6 inch pipe, to
make the removal of water more efficient. However, in spite of
these efforts? the conclusion is inescapable that the
accumulations of water reported by the examiner on March 14,
1991, had not been corrected immediately, as accumulations were
observed again on March 19, 1991, by Roberts, and again noted, on
March 20, 1991, by Dooley and Franklin Miller, who accompanied
him.
Accordingly 1 inasmuch as the hazardous condition of water
accumulation had not been immediately corrected by March 20,
1991, the Contestant herein did violate Section 75.305 as
alleged.

846

In light of this finding, I deny Contestant's request for a
declaratory rulling that it is not a hazardous condition for its
examiners to travel through water accumulations of 24 inches or
less when they are wearing hip boots and proceeding at a careful
leisurely pace.

IV.

SIGNIFICANT AND SUBSTANTIAL

In order to establish that the violation herein is
significant and substantial, the Secretary must establish a
violation of a mandatory standard, a discrete safety hazard
contributed to by the violation, a reasonable likelihood that the
hazard contributed to will result in an injury, and that a
reasonable likelihood exists that the resulting injury will be of
a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4
(1984).-

As set forth infra, the evidence establishes a violation of
a mandatory standard, as well as a safety hazard of slipping or
falling contributed to by, the violation. The key issue is
whether they was a reasonable· likelihood that the hazard of
slipping or falling will result in an injury. As explained by
the Commission in Consolidation Coal Co., 6 FMSHRC 189, at 193
(1984), proof as this issue "embraces a showing of a reasonable
likelihood that the hazard will occur because of course, there
can be no injury of it does not".
Although a stumbling or falling hazard certainly is present,
due to the depth and musky nature of the water accumulation, the
hazard can be mitigated by walking cautiously to feel for
submerged objects so they may be avoided.
I conclude that accordingly, it has not been established
that there was a reasonable likelihood that the hazard of falling
or slipping would occuro Hence the violation is nor "significant
and substantial 1v
ORDER
0

It is ORDERED that the Notice of Contest be DISMISSED.
It is further ORDERED that Citation Noo 3751114 be amended to
lect the fact that the violtion cited therein is not
significant and substantial.

gwbr

Administrative Law Judge

847

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

May 24, 1991

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

v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 90-305
A. C. No. 46-01867-03859
Blacksville No. 1 Mine

CONSOLIDATION COAL COMPANY,
Respondent

DECISION
Appearances:

Wanda M. John~9n, Esq., Office of the Solicitor,
U. s. -Department.of Labor, Arlington Virginia,
for Petitioner;
Walter J. Scheller, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for Respondent.

Before:

Judge Merlin

This case is a petition for the assessment of civil penalties filed by the Secretary of Labor against Consolidation Coal
Company under section 110 of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 820.
Citation No. 3314686

This citation was settled by the parties prior to the
hearing. A settlement motion was submitted by the Solicitor
requesting that the citation be modified to delete the significant and substantial designation and asking that the operator be
ordered to pay a civil penalty of $200. The settlement motion
was approved on the record at the hearing (Tr. 4}.
citation No. 3314689

This citation alleges a violation of 30 C.F.R. § 75.JOJ(a).
A hearing was held on March 27, 1991. Post hearing proceedings
were delayed because of many errors made by the court reporter in
preparation of the administrative transcript, necessitating
retranscription. This has now been done and the parties have
filed post-hearing briefs.
30 C.F.R. § 75.303(a), which restates section 303{d) (1) of
the Act, 30 u.s.c. § 863{d) (1), provides in pertinent part:
(a)
Within 3 hours immediately preceding the beginning of any shift, and before

848

any miner in such shift enters the active
workings of a coal mine, certified persons
designated by the operator of the mine shall
examine such workings and any other underground area of the mine designated by the
Secretary or his authorized representative.
Each such examiner shall

*

*

*

examine for such other hazards and violations
of the mandatory health or safety standards,
as an authorized representative of the Secretary may from time to time require.

*

*

*

*

Citation No. 3314689, dated July 13, 1990 and challenged
herein, charges a violation for the following alleged condition
or practice:
An adequate preshift examination was not
performed for the 8am - 4 p.m. shift of
07/13/90 from the 4 South loaded track to the
4 South Clear haul on the 4 South supply
track.
Condition of trolley wire installation and adequate roof support were easily
observed by this inspector. No mention had
been reported by the examiner. Citations
of 75.516, No. 3314687, and 75.202(a)
No. 3314688 were cited. A reexamination is
required of the area.
The inspector marked the citation as significant and substantial (hereafter referred to as 11 S&S") and found negligence
was moderate.
As appears hereinafter, Citation Nos. 3314687 and 3314688
also are relevant. Citation No. 3314687 charged an S&S violation
30 C.F.R. § 75.516 for the following condition~
The trolley wire 250 v, D.C. l~ Blocks
outby 50+00 on the 4 South supply track was
not installed on suitable insulators to prevent such from contacting combustible materials. As track mounted equipment would pass,
the trolley poles would push the wire against
a wooden heading. Graving (sic) of the board
indicated repeated contact. such conditions
may create fires and smoke inhalation to
miners.

849

And citation No. 3314688 charged an S&S violation of 30
C.F.R. § 75.202(a) for the following condition:
The roof along the 4 south supply track,
50 feet outby so+oo, was not adequately supported in a loose shale roof area.
An area
nearest the wire side of the entry contained
a roof bolt which had become loosen (sic) due
to shale deterioration.
such left an area
loose shale roof 7 1 8 11 wide by 6'3" in length.
Nearly 6 11 of loose shale had fallen from
around the bolt.
Such conditions may cause
fall of roof striking person in open jitneys
presenting broken bones and cuts to head
faces and arms.
At the prehearing conference the parties agreed to the
following stipulations (Tr. 3-4):
(1)

The operator is the owner and operator of the subject

mine;
(2)
the operator and the mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977;

(3)

I have jurisdiction of this case;

(4)
the inspector who issued the subject citation was a
duly authorized representative of the Secretary;
(5)
a true and corr.act copy of the subject citation was
properly served upon the operator;

(6)

(7)

(8)
tions;:

(9)

payment of any penalty will not affect the operator's
to continue in business;
the operator demonstrated good faith abatement;
the operator has an average history of prior viola-

the operator is large in size;

(10)
Citation Nos. 3314688 and 3314687 were not contested by
the operator, have been paid, and are final with respect to all
matters therein;
(11)
the Blacksville No. 1 mine had no fatal injuries in
1989 or in 1990.
The inspector testified that when he travelled to the P-9
area of the mine he observed black markings and indentations on a

850

board in the roof which showed that a trolley pole had been
repeatedly striking the board (Tr. 14). As a result the inspector issued Citation No. 3314687, quoted above, which, as already
set forth, was not contested and is final.
(Stipulation No. 10).
Accordingly, the condition described therein and the finding that
it was S&S are accepted for present purposes. The inspector
stated the condition was obvious because the indentations with
black graphite marks from the trolley wire were easy to see (Tr.
14, 46).
In his opinion the condition had not happened overnight, but had come about over a matter of days (Tr. 15-16, 38).
Upon questioning, the operator's preshift examiner expressed the
opinion that the condition occurred between the preshift and the
inspection, but his explanation was confusing because it appeared
to mix up the two underlying citations (Tr. 90-91). The operator's mine safety supervisor said anything was possible but
admitted that he did not know when the violation occurred (Tr.
104-105). In light of the foregoing, I accept the inspector's
testimony that the trolley wire condition had existed' for a
matter of days.
The preshift examiner further testified that he would have
had to have been directly underneath the board in order to have
seen the indentations made by the trolley wire. He relied upon
the fact that on the preshift examination he travelled in an
outby direction, whereas the inspector travelled inby (Tr. 78,
88-89). The mine safety supervisor testified to the same effect
(Tr. 98-101). However, I find more persuasive the inspector's
testimony that he could see the black marks made by the trolley
wire when he looked backwards (outby) from an inby position (Tr.
60-61). Accordingly, I find the trolley wire condition was
readily observable and should have been seen.
With respect to the roof condition cited in Citation
Noo 3314688f the inspector testified that roof deterioration had

occurred gradually over a number of days (Tro 24)o Here too, the
operator"s preshift examiner averred that the condition could
have happened between the time of the examination and the inspection. The mine safety supervisor also said it was possible
(Tr. 91, 103-104). I find the inspector's judgement more convincing with respect to the length of time the roof condition
existedo
I also accept the inspectoris testimony that the roof
condition was easily observable because six inches of roof
material had fallen to the floor (Tr. 22)o
It is not disputed that the trolley wire and roof condition
were not reported by the preshift examiner (Operator 1 s Exhibit
Noo 5; Tr" 68-69).
In Quinland Coals Inc., 9 FMSHRC 1614, 1619
(1987), the Commission held that 30 C.F.R. § 75·.303 required a
preshift examiner to report hazardous conditions and violations
of the mandatory safety standards such as an inadequately supported roof and that in failing to report such conditions, the
preshift examiner violated the standard.
In accordance with the

851

decision in Quinland, I find a violation of 30 C.F.R.
existed in this case.

§

75.303

The next issue is whether the violation was S&S as that term
has been defined by Commission in Mathies Coal Co., 6 FMSHRC 1
(January 1984). As already noted, the findings that the trolley
wire violation presented a significant and substantial risk of
fire and that the roof violation presented a significant and
substantial risk of a fall are final for purposes of this case.
I conclude that the failure to report these violations also
presented a reasonable likelihood of serious injury.
In this
connection, I find particularly relevant the inspector's testimony that the conditions which were not reported, occurred on the
main artery where people and 90% of all vehicles normally travel
(Tr.34). The purpose of the preshift examination is to detect
hazardous conditions so that corrective measures can be taken and
thereby eliminate the exposure of miners to dangerous conditions.
Indeed, the administrative law judge in Quinland whose findings
were upheld by the Commission, specifically found that the
failure of the pre-shift examiner to report hazardous conditions could have significantly and substantially contributed to a
serious mine acciden~a FMSHRC 1175, 1180 (August 1986). In
light of the foregoing, I conclude the violation was significant
and substantial.
I further find the operator was negligent. As set forth
above, the unreported conditions were readily observable and had
existed for some period of time. As the inspector stated, the
preshift examiner should have been on the lookout for bad roof
conditions because this mine had thirty-three unintentional roof
falls in only the last 4 or 5 years (Tr. 24-25). The remaining
criteria with respect to the amount of civil penalty to be
assessed have been stipulated to by the parties.
The parties are reminded that I am not bound by an MSHA assessed penalty but rather have de nova authority to assess a
civil penalty herein. Sellersburg Stone Co., 5 FMSHRC 287 (March
1983), aff'd. 736 F.2d 1147 (7th Cir. 1984); Consolidation coal
Co., 10 FMSHRC 1935 (October 1989). I do not believe the MSHA
assessed penalty is sufficient to serve as an effective deterrent. A penalty of $500 is assessed.
The post-hearing briefs filed by the parties have been
reviewed. To the extent that the briefs are inconsistent with
this decision, they are rejected.
ORDERS
Citation No. 3314689

It is ORDERED that the finding of a violation be AFFIRMED.

852

It is further ORDERED that the finding of significant and
substantial be AFFIRMED.
·rt is further ORDERED that a penalty of $500 be ASSESSED.
citation No. 3314682
It is ORDERED that the citation be MODIFIED to delete the
significant and substantial designation.
It is further ORDERED that the proposed settlement of $200
be APPROVED.
ORDER TO PAY
It is ORDERED that the operator PAY $700 within 30 days of
the date of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Wanda M. Johnson, Esq., Office of the Solicitor, U. s. Department
of Labor,
Suite 516, Ballston Towers #3, 4015 Wilson Boulevard,
Arlington, VA 22203
(Certified Mail)
Walter Jo Scheller, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241
(Certified Mail)
Mro Steven Solomon, UMWA, Box 370, Cassville, WV
fied Mail)

26527

Mr. Denzel Ammons, Consolidation Coal Company, P.
Wana, WV 26590
(Certified Mail)

o. Box 24,

/gl

853

(Certi-

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

20006

May 24, 1991

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

v.

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 91-18
A. C. No. 46-01453-03930
Humphrey No. 7 Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Wanda M. John~_on, Esq., Office of the Solicitor,
U. S.-Department of Labor, Arlington Virginia,
for Petitioner;
Walter J. Scheller, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for Respondent.

Beforeg

Judge Merlin

This case is a petition for the assessment of four civil
penalties filed by the Secretary of Labor against Consolidation
Coal Company under section 110 of the Federal Mine Safety and
Health Act of 1977.
30 u.s.c. § 820.
Prior to the hearing the Solicitor submitted a motion to
approve settlements and other dispositions for three of the four
citations.
I have reviewed the motion and determine that it is
in accord with the provisions of the Act. Accordingly, as
requested in the motion Citation No" 3314152
modified to
delete the significant and substantial designation and a penalty
in the amount of $250 is assessed:
Citation No. 3314153 is
vacated for the reasons explained by the Solicitor: and a penalty
of $370
assessed in the original amount for Citation
No. 3314148.
There remains for consideration Citation No. 3314143. A
hearing was held on March 27, 1991.
Post hearing proceedings
were delayed because of many errors made by the court reporter in
preparation of the administrative transcript, necessitating
retranscription.
This has now been done and the parties have
filed post hearing briefs.
Citation No. 3314143 charges a violation of 30 C.F.R.
for the following alleged condition:

§ 75.517

The power cable serving power to the
loading machine operating on the 12 East 0490

854

section is not being adequately insulated.
The outer jacket of the cable had been damaged and taped. However, the tape was worn
exposing the insulated power leads.
30 C.F.R. § 75.517 which is a restatement of section 305(1)
of the Act, 30 u.s.c. § 865(1), provides as follows:
Power wires and cables, except trolley
wires, trolley feeder wires, and bare signal
wires, shall be insulated adequately and
fully protected.
At the hearing the parties agreed to the following
stipulations (Tr. 3-4):
(1)

The operator is the owner and operator of the subject

mine;
( 2)
the operator and the.. mine are subject to the Federal
Mine Safety and Health Act of 1977;
(3)
matter;

the Administrative Law Judge has jurisdiction in this

(4)
the inspector was a duly authorized representative of
the Secretary; a true and correct copy of the subject citation
was properly served upon the operator;
(5) payment of any penalty will not affect the operator's
ability to continue in business;
abatement~

(6)

the operator demonstrated good faith

(7)

the operator has an average history of prior viola-

tions~

(8)

the operator is large in size;

(9)
the Humphrey No. 7 Mine had no fatalities in 1989,
1990, or to date.
The MSHA inspector testified that he noticed a damaged place
6 to 7 inches long in the middle of the cable to a loading
machine (Tr. 8, 12, 13, 29). That area of the cable had been
previously damaged and retaped (Tr. 13). He said that when he
picked up the cable he noticed some slight color but not much
from an inner power lead of the cable (Tr. 8). He first stated
he "believed" the color was green and when called on rebuttal
said he "assumed" it was green (Tr. 10, 110). Seeing the color
meant to him that the outer insulation was inadequate (Tr. 9).

855

The inspector testified that after he saw the color he bent the
cable five or six times (Tr. 14). Originally, he asserted that
he used minimal pressure because not much pressure was necessary
on a taped area, but on rebuttal he could not remember how far he
bent the cable (Tr. 15-16, 111).
The operator's inspector escort testified in contradiction
to the MSHA inspector. According to the escort, the inspector
picked up the cable and bent it further then normal bending until
the cable was almost in a figure eight (Tr. 52, 53). The inspector bent the cable until his hands met and the cable was in a
loop (Tr. 54). The escort stated that the inspector bent it in
that manner five or six times while twisting it (Tr. 53). Only
after he bent the cable did the inspector tell the escort, who
was standing next to him, that there were exposed wires (Tr. 55,
63). Both the operator's escort and the operator's foreman
testified that the inspector bent the cable far more than it
would have been bent under normal mining operations (Tr. 53, 62,
67, 96). The escort testified that the taping was adequate
before the inspector bent the cable and it was his view that the
inspector himself exposed the i.nner leads by his excessive
bending and twisting-(Tr. 59, 61).
After listening to and observing the witnesses and reviewing
the transcript, I find the evidence of the operator's witnesses
more credible and I accept their version of what transpired. As
noted above, the operator's escort stated that the inspector did
not say anything about an exposed power wire until after the
bending. The inspector could not remember if he told the escort
the lead was exposed before bending the cable (Tr. 110, 111). It
is clear to me that if the inspector had seen an exposed wire
when he first picked the cable up, he would have told the escort
who was by his side (Tr. 52, 63).
I accept the evidence that the
conductor in question was yellow not green as the inspector said
and I particularly note that the inspector 9 s testimony on this
po
during rebuttal was tentative in manner and tone. The
inspector admitted that he bent the cable while the machine was
energized and admitted that this was dangerous as well as stupid
(Tr. 20-21).
I find it hard to believe that an experienced MSHA
inspector would engage in life-threatening actions such as
bending and twisting a live cable which had an exposed wire.
Accordingly, the fact that the power was on casts further doubt
upon the inspector 1 s testimony that he saw an exposed wire before
he bent the cable. Based upon the foregoing, I find that the
inspector did not see an exposed power wire before he bent the
cable.
I conclude, therefore, that when the inspector undertook to
bend the cable the place was taped and that, as the escort
testified, the tape was adequate.
In this connection, I again
note that the inspector first testified he used minimal force but
on rebuttal said he did not remember how far he bent the cable.

856

The consistent testimony of the operator's escort and section
foreman shows that the inspector bent the cable into a loop while
twisting it thereby subjecting the cable to more stress than it
would have undergone in normal mining operations. Also, the
section foreman's testimony that bending the cable excessively
causes the adhesive of a taped place to come loose is accepted
(Tr. 90). Accordingly, I conclude that the inspector himself
created the violative condition and that therefore the citation
must be vacated.
The post-hearing briefs filed by the parties have been
reviewed. To the extent that the briefs are inconsistent with
this decision, they are rejected.
ORDERS

It is ORDERED that Citations Nos. 3314143 and 3314153 be
VACATED.
It is further ORDERED that Citation No. 3314152 be MODIFIED
to delete the significant and-substantial designation.
It is further ORDERED that the proposed settlement of $620
for Citation Nos. 3314152 and 3314148 be APPROVED.
It is further ORDERED that the operator pay $620 within 30
days of the date of this decision.

\\
Paul Merlin
Chief Administrative Law Judge
Distribution~

Wanda M. Johnson, Esq., Office of the Solicitor, U. S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Walter J. Scheller III, Esq., Consolidation Coal company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified
Mail)
Mr. Barry Dangerfield, Consolidation Coal Company, P.
Osage, WV 26543
(Certified Mail)

/gl

857

o. Box 100,

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

MAY 281991

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

v.

CIVIL PENALTY PROCEEDING
Docket No. PENN 90-248
A.C. No. 36-08036-03507
Signal Frackville Energy

MOREA SERVICES, INCORPORATED,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

Susan M. Jordan, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
Carl J. Steinbrenner, Esq., Rosenn, Jenkins &
Greenwald, Wilkes-Barre, Pennsylvania, for the
Respondent.

Before:

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). Petitioner has filed a motion to
approve a settlement agreement and to dismiss the case. A
reduction in penalty from $15,000 to $12,000
proposed. I have
considered the representations and documentation submitted in
this case, as well as testimony at hearings, and I conclude that
the proffered settlement is appropriate under the criteria set
forth in Section llO(i) of the Act.
WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORDERED that Respondent pay a penalty of $12,0~0 within
30 days of this order.
f

\
"!

\

i

Gci.ry Melick
Administrative Law Judge

858

Distribution:
Susan M. Jordan, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
earl J. Steinbrenner, Esq., Rosenn, Jenkins & Greenwald, 15 South
Franklin Street, Wilkes-Barre, PA 18711 (Certified Mail)
/fb

859

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 2 81991
LOCAL UNION 2874, DISTRICT 5,
UNITED MINE WORKERS OF
AMERICA,
Complainant

v.

COMPENSATION PROCEEDING
Docket No. PENN 88-232-C
Marianna Mine No. 58

BETHENERGY MINES, INC.,
Respondent
ORDER OF DISMISSAL
Before:

Judge Fauver

Complainant's Motion to Dismiss is GRANTED, and this
proceeding is DISMISSED.

uJ~~+wv~
William Fauver
Administrative Law Judge

Distribution~

Mary Lu Jordan, Esq", Ms. Joyce Ao Hanula, Legal Assistant, UMWA,
900 15th Street, NoW., Washington, DC 20005 (Certified)
R. Henry Moore, Esquire, Buchanan Ingersoll Professional
Corporation, 600 Grant Street, 57th Floor, Pittsburgh, PA
(Certified)

fas

860

15219

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

MAY 2 81991
DISCRIMINATION PROCEEDING

BRADLEY S. CRAIG,
complainant

v.

Docket No. LAKE 91-38-D
Captain Mine

ARCH OF ILLINOIS, INC.,
Respondent
DECISION
Appearances:

Bradley s. Craig, prose, DuQuoin, Illinois, for
Complainant;
David S. Hemenway, Esq., Thompson & Mitchell,
St. Louis, Missouri, for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
Complainant Craig contends that he was constructively
discharged from his job as a utility machine fill-in (UMFI)
worker by Respondent Arch, because of activity protected under
the Mine Act. Respondent contends that Craig voluntarily
terminated his employment and that his termination was unrelated
to any protected activityo Both parties engaged in pretrial
discovery.
Pursuant to notice, the case was called for hearing
Sto Louis, Missouri, on March 26, 1991. Bradley Craig
testified on his own behalf and Brenda Craig and Bobby Gene Craig
testified on his behalf. At the conclusion of Complainant's
case, Respondent made a motion to dismiss which I denied on the
record. Respondent called Gregory Bigham, Benny R. McElvain,
Allan Schulz, and Hubert Place as witnesses.
Both parties have
filed Post Hearing Briefs.
I have considered the entire record
and the contentions of the parties, and make the following
decision.
·
FINDINGS OF FACT
I

At all times pertinent to this proceeding, Respondent Arch
of Illinois (Arch) was the owner and operator of the Captain
Mine, a surface mine located in the State of Illinois.
Complainant was employed by Arch from July 1976 to October 18,
1990 as a miner. The Captain Mine produces approximately
6 million tons of coal a year from two pits. The pit in which

861

Craig worked was.about 5600 feet long, with a highwall of between
20 and 40 feet.
The coal bench is about 90 feet wide and the
dragline bench from about 110 feet to 140 feet wide below the
first coal seam.
Craig was hired in July 1976 as a drill helper.
He received
orientation and on the job training. He continued as a drill
helper until November 12, 1976, when he became a driller. He
continued as a driller until June 2, 1979, when he bid for a job
on railroad maintenance·. He remained on that job until April
1980.
From April 3, 1980 to November 17, 1982, he worked as a
belt wagon operator.
From November 17, 1982 to August 22, 1987,
he went back on railroad maintenance. Thereafter he was a belt
repairman until January 12, 1988. He then returned to railroad
maintenance work until April 18, 1988, when the job was
eliminated. He then became an UMFI worker until October 18,
1990.
II

An UMFI employee may be_.assigned to different jobs on
different days - wher~ver they are needed. One of the jobs an
UMFI may be required to perform is that of a pumper. A pumper is
required to set and take out pumps and to monitor the pumps which
are set. He hooks the hoses and the electric cable to the pump
which is set in the area where the water is to be pumped out.
The job requires physical exertion, but very little skill. On
January 12, 1989, Arch sent a memorandum to all classified
employees setting forth the criteria for job testing. The job of
pumper lists the experience required as "experience in pumping."
(R. Ex. 4). on March 20, 1989, it sent out another memorandum
entitled "Changes in Experience Requirement." It listed the
different jobs at the Captain Mine including the job of pumper
which
states requires 1 month pumping experience.
Comp. Ex 3)
n

o

Craig had been assigned to the pumper job between 6 and
On August 21, 1989, he was
assigned to a pumper's job and received new task training as a
pumper from Pit Foreman Allan F. Schulz. Craig signed MSHA
f icate of Training form that he had completed the new task
training.
(R. Exo 3). Thereafter he was assigned to pumper
duties on September 13, 1989, February 27, 1990; May 17, 1990;
August 24 and 25 7 1990, October 16, 17, and 18, 1990. (R. Ex. 5).
Before October 1990, he never set up a pump completely by
himself, nor did he ever take one out.
He did however work with
others in setting up and taking out pumps. He was never
classified as a pumper.
12 times beginning in August 19890

on October 16, 1990, he was assigned as a pumper and was
task-trained for the job by Pit Foreman Benny McElvain. McElvain
testified that it was his practice to task-train any employee

862

assigned to a new job if he is unsure of the employee's
experience. He showed him how to hook the hose to the pump
truck, and to attach the hoses and cable to the pump. He
completed a certificate of training on an MSHA Form, which Craig
signed attesting that he had completed the training.
(R. Ex. 2).
III

on October 17, 1990, Craig and another UMFI employee, Olan
Thompson, were assigned to pumping duties in the 2750 pit of the
captain Mine. Allan Schulz was the foreman.
It was raining
heavily, and Craig and Thompson were directed to set a pump.
Craig testified the Thompson actually set the pump, hooked it up
and started it. Craig helped drag the hoses and lines. He also
testified that he had to go under the swing of the dragline to
get to the pump, but he "didn't squawk safety that night, I just
wanted to get the job done, get the hell out of there, and get up
to the top and get on some clean clothes because I was drenched
to the bone."
(R. 20). Setting the pump took from 30 minutes to
an hour.
When Craig arrived at the mine on October 18, he was told by
Pit Foreman Benny McElvain that he was to be the pumper on his
shift. Craig testified that two pumps were set in the sump and
McElvain told his to hook the hoses and electric cables to them.
He also testified that the pumps were down a "real steep
bank . • • and one of them was setting at a real awkward angle. 11
(R. 33). Before Craig and McElvain left for the worksite, Craig
told McElvain that he "could be hurt down here," (R. 145),
referring to the pumper's job.
McElvain testified and I find as a fact that the hoses were
already attached to the pump, but had been taken apart at the
11
parting 11 in order to load out the coal. Craig 1 s assigned task
was to splice the ends of the hoses together and plug the cable
into the pumps" Craig told McElvain that he was not qualified to
be the pumper and asked for another job. McElvain told him that
he didn't have anyone else to do the job and that Craig would
have to do it. Craig asked for help and McElvain sent Joe
Summers, a heavy equipment operator who helped him drag the cable
and
to where they were to be hooked up, but Summers did not
of
to help Craig hook up the cable and hoses. Craig again
asked McElvain for a different job and McElvain again refused.
There
no evidence that Craig made specific safety complaints
to McElvain at that time. He merely reiterated that he disliked
and did not have the skill to perform the pumper 1 s.job.
After further discussion, McElvain took Craig in his truck
to the Shift Superintendent Steve Bigham. Craig told Bigham that
he didn't like to pump and asked for another job. Bigham told
him that he was the only person available and capable of pumping
at the time and that he would have to perform the duties of a

863

pumper. Craig also told Bigham that the pumping job was not
safe. After further discussion, Bigham asked Craig if he wanted
a union representative or safety committeeman to come to the
area. Craig, who testified that he was under great mental stress
at the time, rejected the offer because he "just wanted out of
there."
(R. 44). Bigham then gave Craig a direct order to
perform the job of pumper or be suspended with intent to
discharge. When Craig again raised a safety issue, Bigham again
asked if he wanted a safety committeeman or pit committeeman.
Craig again said no. Craig than said he wanted to sign a quit
slip. McElvain took him to the office where he signed a
separation form in which he checked the type of separation as
elective layoff.
(R. Ex. 1). The fact that Craig signed a
voluntary separation from does not establish that he was not the
recipient of adverse action:
in fact he was terminated for
refusing to perform certain work, and whether the termination
took the form of a quit slip or suspension with intent to
discharge is irrelevant under the Mine Act.
Before signing the
separation form, Craig asked for an union representation. Bigham
refused because he "saw no need after twice before refusing a
safety committeeman and a pit committeeman to have any other
representation there.""''
(R. 124). Craig testified that he
assumed when he signed the separation form as an elective layoff,
he would be entitled to unemployment benefits and continuation of
medical insurance for 1 year.
The weight of the evidence establishes and I find as a fact
that Craig's work refusal was based on his dislike for the
pumper's duties, and his belief that he was unable to perform
them. His reference to alleged unsafe aspects of the job was not
a significant factor in his refusal to perform the duties
assigned him.
Following his separation, Craig was very distraught and
depressedo He was seen at the Perry County Counseling Center
because of 10 his emotional reaction to losing his job. 11 He
exhibited symptoms of depression.
(Comp. Ex. 1) . He consulted
the Union President after his separation, but was told that since
he signed the quit slip, there was nothing the union could do.
IV
Beginning in January 1988, Complainant Craig was enrolled in
a program at the Logan College/Wabash Valley College in
Carterville, Illinois, for an associate degree in coal mine
technologyo Arch paid his tuition. By October 1990, Craig had
completed 61 hours of a required 70 hours. He was given credit
by the college for his annual retraining at the mine.

864

Complainant has not worked since his separation from Arch.
He attempted to find employment and filed applications with a
large number of prospective employers between October 23, 1990
and January 16, 1991.
ISSUES
1. Whether Complainant was constructively discharged or
otherwise discriminated against because of activity protected
under the Mine Act?
2.

If so, to what remedies is he entitled?

CONCLUSIONS OF LAW
I

Respondent Arch is subject to the provisions of the Mine Act
in the operation of the captain Mine.
Complainant Craig was
employed by Arch as a miner, and is protected under
Section lOS(c) of the Act.
I-have jurisdiction over the parties
and subject matter of~this proceeding.
II

In order to establish a prima facie case of discrimination
under Section 105(c) of the Mine Act a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Fasula v. Consolidation Coal Company,
2 FMSHRC 2768 (1980), rev'd on other grounds sub nom.
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal
Company 1 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v.
Hecla-Day Mines Corporation 1 6 FMSHRC 1842 (1984); Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (1981),
rev 1 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
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
was also motivated by the miner's unprotected activities
alone.
The operator bears the burden of proof with regard to the
affirmative defense.
v. Magma Copper Company, 4 FMSHRC 1935
(1982).
The ultimate burden of persuasion does not shift from
the complainant.
Robinette, supra.
See also NLRB v.
Transportation Management Corporation, 462 U.S. 393, 76 L.Ed.2d
667 (1983), where the Supreme Court approved the NLRB's virtually

865

identical analysis for discrimination cases arising under the
National Labor Relations Act. Refusal to perform hazardous work
can be protected activity under the Mine Act.
Generally, refusal to work cases turn on the miner's belief
that a hazard exists, so long as that belief is held in good
faith and is a reasonable one. Secretary ex rel. Bush v. Union
Carbide Corp., 5 FMSHRC 993 (1983); Miller v. FMSHRC, 687 F.2d
1984 (7th Cir. 1982).
In analyzing whether a miner's belief is reasonable, the
hazardous condition must be viewed from the miner's perspective
at the time of the work refusal, and the miner need not
objectively prove that an actual hazard existed. Secretary ex
rel. Bush v. Union Carbide Corp., 5 FMSHRC 993 (1983); Secretary
ex rel. Pratt v. River Hurricane Coal Co. 5 FMSHRC 1529, (1983);
Haro v. Magma Copper Co., 4 FMSHRC 1935 (1982); Robinette, supra.
The Commission has also explained that "[g]ood faith belief
simply means honest belief that a hazard exists." Robinette,
supra, at 810.
III

Although the Commission has declined to articulate a
standard as to how severe a hazard must be to trigger a miner's
right to refuse to work, see Secretary/Pratt v. River Hurricane
Coal Co., 5 FMSHRC 1529 (1983)), it is clear that the refusal to
work must involve a hazard beyond the hazards inherent in the
mining industry or the job itself. Simmons v. socco, 4 FMSHRC
1584 (1982); Runyon v. Big Hill Coal Co., 8 FMSHRC 1441 (1986).
IV
The evidence in the present case establishes that
complainant refused to perform the work of a pumper. He was told
that if he continued to refuse to perform the work, he would be
discharged. Rather than accept a discharge which he believed
would "mess up" his "good record over the past fourteen years,"
he signed the "quit slip."
(R. 46-47). A miner who resigns
because of intolerable conditions may be found to have been
constructively discharged. Simpson v. FMSHRC, 842 Fo2d 453
(D.Co Cir" 1988). If the operator maintains conditions so
intolerable that a reasonable miner would feel compelled to
resign, he is constructively discharged.
What were the conditions at the Captain Mine which
precipitated Craig's resignation? First and foremost, Craig
disliked the job of pumper and felt that he was not capable of
performing its duties. Secondly and more by way of a postdischarge rationale, he complained of a steep slope going down to
the pumps, rocky, wet ground, and the dangers of a fall of ground
from the highwall. These conditions are not hazards beyond those

866

inherent in the job itself. Complainant's distaste for the
duties of the pumper, and his lack of skill and ability to
perform the job are not intolerable safety hazards, or in fact
hazards at all.
I find, based on the testimony of McElvain and
Bigham that the highwall did not pose a hazard to the pumper, nor
did the slope to the pumps. From Craig's point of view, these
conditions were not such as to cause a reasonable belief that
they were safety hazards. I conclude that Craig's work refusal
was not based on a reasonable good faith belief that the work he
as asked to perform was hazardous, but rather on his long-held
dislike for the pumper job, and his belief that he was unable to
perform the duties of the job. His safety rationale was not made
in good faith. Therefore, I conclude that Craig has failed to
establish that his termination was the result of activity
protected under the Mine Act.

ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED that the complaint of discrimination is DISMISSED.

1{1)jt iti :{ /~8v 7-, cfA ~·t·,,(c~
1

~ James A. Broderick
1

~

Administrative Law Judge

Distribution:
Mr. Bradley s. Craig, 109 South Leonard Street, DuQuoin, IL 62832
(Certified Mail)
David So Hemenway, Esq., Patricia L. Cohen, Esq., Thompson &
Mitchell 1 One Mercantile Centeru Suite 3400, St. Louis, MO 63101
(Certified Mail)
dcp

867

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

MAY 291991
THOMAS J. MCINTOSH,
Complainant

v.

DISCRIMINATION PROCEEDING
Docket No. KENT 90-113-D
MSHA Case No. BARB CD 90-06

FLAGET FUELS, INC.,
Respondent

No. 1 surface Mine
DECISION

Appearances:

Tony Oppegard,'"Esq., ··Appalachian Research &
Defense Fund of Kentucky, Inc., Lexington,
Kentucky, for the Complainant.

Before:

Judge Koutras
Statement of the Case

This proceeding is before me to determine the relief due the
complainant based upon my decision of May 3, 1991, finding that
the respondent Flaget Fuels, Inc., discriminated against the
complainant in violation of section 105(c) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801, et seq.
In
response to my order of May 3, 1991, the complainant has filed
his petition for backpay and expenses, and a statement of
attorney fees and litigation expenses incurred as a result of his
discriminatory discharge by the respondent.
The respondent, who
failed to appear at the hearing to defend this action, filed no
response to the complainant's pleadings for relief.
Backpay
The complainant is claiming backpay for the period of
December 1 1 1989, through January 15, 1990, a period of 6 work
weeks.
Based on a wage rate of $8 per hour for regular time and
$12 per hour for overtime, the complainant's weekly pay rate was
$440 ($320 regular time and $120 overtime). Complainant asserts
that for the six weeks backpay period, he would have earned
$2 1 640 1 had he not been unlawfully discharged.
In addition to backpay, the complainant claims mileage
expenses of $87.97, in conjunction with his search for work
during the backpay period, as well as for his meetings with his
attorney and his attendance at the hearing in this matter. The
complainant has filed a detailed log in support of this claim.

868

Citing Secretary of Labor on behalf of Bailey v. ArkansasCarbona Co. and Walker, 5 FMSHRC 2042, 2049 (1983), and Local
Union 2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (1988),
aff'd sub nom, Clinchfield Coal Co.,·v. FMSHRC, 895 F.2d 773
(D.C. Cir. 1990), the complaintant also seeks the payment of
interest on the damages owed him by the respondent, and he
requests an order requiring the respondent to pay interest
pursuant to the computation formula established by the Commission
in Arkansas-Carbona and Clinchfield Coal Co., supra.
After due consideration of the complainant's petition for
backpay and expenses, I conclude and find that it is reasonable
and proper and the petition IS GRANTED. The complainant is due
$2,727.97 ($2,640 + $87.97) (less interest) for backpay and
expenses.
Attorney Fees and Litigation Expenses
Section 105(c) (3) of the Act provides in part as follows:
Whenever an order is issued sustaining the
complainantts charges under this subsection,
a sum equal to the aggregate amount of all
costs and expenses (including attorney's
fees) as determined by the Commission to have
been reasonably incurred by the miner,
applicant for employment or representative of
miners for, or in connection with, the
institution and prosecution of such
proceedings shall be assessed against the
person committing such violation.
The complainant has requested $7,740 in attorney fees, based
on 51.6 hours of work claimed by counsel Oppegard at the rate of
$150 per hour" The complainant also requests $317.34, for
certain enumerated litigation expenses incurred by the
Appalachian Research & Defense Fund of Kentucky in pursuit of his
case. The total amount of claimed attorney fees and litigation
expenses is $8,057.34.
Included in the 51.6 hours of claimed work by counsel
Oppegard is a claim of 20.1 hours for work performed during the
period December 11, 1989, to February 16, 1990, prior to the
complainant's filing of his complaint with the Commission on
March 9, 1990. I conclude and find that the time spent by
Mr. Oppegard during the time that the complaint was being pursued
and investigated by MSHA, including interviews, phone calls, and
contacts with MSHA's special investigator, was non-legal work
unconnected with the trial of the case, or preparation for the
trial of the case, and that an hourly rate less than $150 is
appropriate in the circumstances. See: Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974), and my

869

decision of April 19, 1991, in Ricky Hays v. Leeco, Inc., Docket
No. KENT 90-59-D.
I Further conclude and find that $50 per hour
is a reasonable billing rate for this work. Accordingly, I will
allow $1,005 for this work (20.l hours x $50).
I have reviewed the remaining claims for work performed by
Mr. Oppegard from March 5, 1990, through May 9, 1991, and with
the exception of 4.4 hours ($660) claimed for round trip travel
from Lexington to Pikeville, Kentucky, I conclude that the
charges are reasonable and they are allowed.
In view of the
allowable mileage, lodging, and meal expenses in connection with
the relatively brief hearing held in this case, I conclude that
counsel has been adequately compensated for these expenses and
that an additional charge of $660 for counsel's travel time is
unreasonable. Accordingly, it is disallowed.
I will allow
payment for the remaining 27.1 hours of work at an hourly rate of
$150 ($4,065).
I have further reviewed the claims for other litigation
expenses incurred by counsel in the amount of $317.34, and I
conclude and find th.at they 'are reasonable and proper, and they
are allowed.
ORDER
IT IS ORDERED THAT:
1. My decision in this case, issued on May 3,
1991, is now final.
2. The respondent shall reinstate the complainant
to his former position with full backpay and
benefits, with interest, at the same rate of pay,
on the same shift, and with the same status and
classification that he would now hold had he not
been unlawfully discharged.
The backpay due the complainant for the period of
December 1, 1989, through January 15, 1990, is
$2,640.
Backpay interest will continue to accrue
until this matter becomes final and the
complainant is reinstated and paid. The interest
accrued with respect to the backpay will be
computed according to the Commission's decision in
Local Union 2274, UMWA v. Clinchfield Coal Co.,
10 FMSHRC 1483 {1988), aff'd sub nom.
Clinchfield Coal Co. v. FMSHRC 895 f .2D 773 (D.C.
Cir., 1990), and calculated in accordance with the
formula in Secretary/Bailey v. Arkansas Carbona,
5 FMSHRC 2042 (1984).

870

3. The respondent shall expunge from the
complainant's personnel records and/or any other
company records any reference to his discharge of
December 8, 1989.
4. The respondent shall pay the complainant's
expenses of $87.97, incurred during the backpay
period. The respondent shall also pay the
complainant's attorney fees and other litigation
costs and expenses in the amount of $5,387.34.
5. The respondent shall post a copy of my
decision of May 3, 1991, and the instant decision,
at its No. 1 Surface Mine in a conspicuous,
unobstructed place where notices to employees are
customarily posted for a period of 60 consecutive
days from the date of this decision and order~
6.
The respondent shall comply with the aforesaid
enumerated Orders within thirty (30) days of the
date of this decisi6n~

~1~~

Administrative Law Judge

Distribution:
Tony Oppegard, Esq., Appalachian Research & Defense Fund of
Kentucky, Inc., 630 Maxwelton Court, Lexington, KY 40508
(Certified Mail)
Flaget Fuelsr Inc.: 825 High Street, Hazard; KY 41701
(Certified Mail)

/ml

871

872

ADMINISTRATIVE LAW JUDGE ORDERS

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

22041

May 3, 1991

CIVIL PENALTY PROCEEDINGS

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

Docket No. KENT 90-356
A. C. No. 15-16477-03526

v.
Docket No. KENT 90-399

A. C. No. 15-16637-03528
1J 1 S COAL CORPORATION,

Respondent

No. 3 Mine

.
•

.

Docket No. KENT 90-358
A. C. No. 15-16637-03504
No. 4 Mine
ORDER

On April 8, 1991, Respondent filed a Motion asking "the
Court" to "disqualify" me from hearing the above captioned cases
on the ground that in not approving a Joint Motion to Approve
Settlement, I had "determined" my "opinion" in "these matters."
29 C.F.R. § 2700.81(b) provides that a Party may request a
Judge to withdraw 12 • • • on grounds of personal bias disqual ication by filing promptly upon discovery of the alleged facts an
affidavit setting forth in detail the matters alleged to
constitute grounds for disqualification. 11
Respondent has not filed any affidavit setting forth matters
alleged to constitute grounds of disqualification.
In an Order entered February 25, 1991, I set forth the
pertinent history of these cases as follows:
"On January 14,
1991, Counsel for the Petitioner filed a Joint Motion to Approve
Settlement (the Motion).
In essence, neither the Motion nor the
exhibits attached to it allege the existence of any facts or
circumstances which contravene or dilute assertions set forth in
the various citations at issue, and in the accompanying Narrative
Findings for Special Assessment. Specifically the Motion does
not allege any facts or circumstances with regard to the gravity
of the alleged violations, and the Operator's negligence which
contravene or dilute the assertions set forth in the Citations at
issue.
Indeed, the Joint Motion does not allege any facts or
circumstances other than those set forth in the various
Citations."

873

on January 18, 1991, in a conference call I initiated
between counsel for both Parties, it was explained that, inasmuch
as the Motion did not contain sufficient facts to support the
proposed settlements it could not be approved.
In my analysis of the Joint Motion to Approve Settlement,
and in my Decision denying the Motion, and in my conversation
with the Parties on January 18, 1991, concerning my inability to
approve the Motion, I in no way reached any opinion as to the
merits of the issues raised by the pleading as the record did not
contain any evidence. I continue to have a totally open mind
with regard to the issues raised by the pleadings, as there is no
evidence before me. My mind shall remain open until a
evidentiary hearing scheduled for June 18-20, 1991, is concluded
and post hearing briefs are received. Only at this time shall I
weigh the evidence and reach a decision on all matters at issue.
The fact that I have denied a Motion to Approve Settlement on the
grounds that it does not provided facts in support of the
appropriateness of the proposed penalties, does not in any way
preclude me from subsequently reaching an objective, impartial
decision based solely on the--evidence to be presented at the
evidentiary hearing.Accordingly, for all these reasons, Respondent's Motion is
DENIED.

~ !::::erger

Administrative Law Judge
(703) 756-6210
FAX (703) 756-6201

Wo F. Taylor, Esq., Office of the Solicitor, U. S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)

Carl E. McAfee, LJ's Coal Corporation, P.O. Box M,
St" Charles, VA 24282 (Certified Mail)

Ivl:Z:".

dcp

874