September to December 2019
TABLE OF CONTENTS

COMMISSION DECISIONS
09-26-19

M-CLASS MINING, LLC

LAKE 2012-519

Page 579

09-30-19

SOLAR SOURCES MINING, LLC

LAKE 2017-52

Page 594

COMMISSION ORDERS
11-07-19

PETE TARTAGLIA, JR. v.
FREEPORT-MCMORAN BAGDAD,
INC.

WEST 2018-362-DM

Page 609

ADMINISTRATIVE LAW JUDGE DECISIONS
09-04-19

THE MONONGALIA COUNTY
COAL COMPANY, successor to
CONSOLIDATION COAL
COMPANY

WEVA 2015-0074

Page 613

09-10-19

HOFFMAN CONSTRUCTION
COMPANY, INC.

LAKE 2019-0180

Page 617

10-11-19

CONSOL PENNSYLVANIA COAL
COMPANY LLC

PENN 2018-0169

Page 626

11-04-19

STAR QUARRIES LLC

SE 2019-0091

Page 693

11-05-19

SEC. OF LABOR O/B/O ANTHONY
VEGA v. SYAR INDUSTRIES, INC.

WEST 2018-0223DM

Page 697

i

11-06-2019

SEC. OF LABOR O/B/O ANTHONY
VEGA v. SYAR INDUSTRIES, INC.

WEST 2018-0223DM

Page 720

11-06-19

SEC. OF LABOR O/B/O KEVIN R.
SHAFFER v. THE MARION
COUNTY COAL COMPANY

WEVA 2018-423-D

Page 744

11-13-19

HOOVER EXCAVATING &
TRUCKING, INC., and its successors

WEST 2019-0268

Page 761

11-20-19

HOOVER EXCAVATING &
TRUCKING, INC., and its successors

WEST 2019-0092

Page 771

12-18-19

HOPKINS HILL SAND & STONE,
LLC

YORK 2019-0025

Page 786

12-23-19

PETE TARTAGLIA, JR. v.
FREEPORT-MCMORAN BAGDAD,
INC.

WEST 2018-0362DM

Page 794

12-30-19

CONSOL PENNSYLVANIA COAL
CO., LLC

PENN 2019-8

Page 803

ADMINISTRATIVE LAW JUDGE ORDERS
11-06-19

SEC. OF LABOR O/B/O TYLER
HERRERA v. FIELD LINING
SYSTEMS, INC.

WEST 2019-0364DM

Page 825

12-19-19

SEC. OF LABOR O/B/O JASON
EBERT v. THE MARSHALL
COUNTY COAL COMPANY

WEVA 2020-0133DM

Page 828

ii

Review was granted in the following case during the month of September 2019:
Secretary of Labor v. Knight Hawk Coal, LLC., Docket No. LAKE 2019-87 R (Judge McCarthy,
August 16, 2019)

Review was denied in the following cases during the months of October and November
2019:
Secretary of Labor v. Hoffman Construction Company, Inc., Docket No. LAKE 2019-180 (Judge
Rae, September 10, 2019)
Secretary of Labor v. Consol Pennsylvania Coal Company, LLC, Docket No. PENN 2018-169
(Judge Moran, October 11, 2019)

No review was granted or denied during the month of December 2019.

iii

COMMISSION DECISIONS

41 FMSHRC Page 578

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

September 26, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 2012-519
v.
M-CLASS MINING, LLC
BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners
DECISION
BY: Rajkovich, Chairman; Young and Althen, Commissioners
This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act”). At issue is Order No. 8432253, issued to M-Class Mining,
LLC (“M-Class”) by the Department of Labor’s Mine Safety and Health Administration
(“MSHA”).
The order alleges that a miner failed to wear gloves while performing work on energized
electrical equipment, resulting in a violation of 30 C.F.R. § 75.1720(c).1 The alleged violation
was designated as significant and substantial (“S&S”), highly negligent, and a result of the
operator’s unwarrantable failure to comply with the safety standard. MSHA proposed a penalty
of $41,500 for this violation.
M-Class and the Secretary of Labor each filed motions for summary decision regarding
the validity of this order. The Judge granted M-Class’s motion for summary decision, denied the
Secretary’s cross-motion for summary decision, and vacated the order. 39 FMSHRC 839, 849
(Apr. 2017) (ALJ). In doing so, the Judge drew an inference favorable to the movant, M-Class.
Upon review, the Commission vacates the Judge’s summary decision in favor of M-Class
and remands the case for further proceedings in accordance with this decision.

1

Section 75.1720(c) requires a miner to wear “[p]rotective gloves when handling
materials or performing work which might cause injury to the hands; however, gloves shall not
be worn where they would create a greater hazard by becoming entangled in the moving parts of
equipment.” 30 C.F.R. § 75.1720(c).

41 FMSHRC Page 579

I.
Factual Background
On May 23, 2011, Mark McCurdy, a maintenance foreman and certified electrician, was
working at M-Class’s #1 Mine, a large underground coal mine in Macedonia, Illinois. During his
shift, he tried to determine why a continuous mining machine intermittently stopped functioning.
39 FMSHRC at 841. McCurdy checked the machine’s external radio circuits and internal wiring.
He also checked it for loose parts, the range of the remote, and reviewed the machine’s computer
log. Id. While making these checks, McCurdy alternately turned the machine off and on several
times.
After initially turning the machine off and locking out its power center, he checked its
remote and external radio circuitry. He opened the cover of the control panel of the machine to
check its internal wiring. McCurdy then restored power to the machine and turned the machine
back on. After doing so, he operated the remote in order to bump the head of the machine, i.e.,
shake the machine to cause a shutdown. McCurdy reviewed the machine’s computer log for any
record of malfunctioning components. He did not wear gloves while operating the remote
because he testified that he thought that he might inadvertently press the wrong buttons on the
remote.
McCurdy then used the control breaker to repeatedly reboot the machine. After rebooting,
he again checked the computer log for any changes as a result of the reboot. He turned the
machine off, again, and locked out the power center. After doing so, he rechecked the internal
wiring, which had remained uncovered since he first turned off the machine. He then restored
power to the machine and turned it back on, and again operated the remote to bump the head of
the machine. In addition, he checked whether the limited range of the remote was causing the
machine to intermittently stop functioning. After that check, McCurdy left the immediate area of
the machine to talk with two other miners who were changing a tire on a shuttle car.
When he returned, the internal wiring of the machine remained exposed and energized
since the last time he had examined the machine. McCurdy did not put on the gloves that were
lying on the machine. He testified that he knelt down in front of it, and looked at the electrical
panel, trying to decide what to do next. McCurdy Dep. at 19, 36. He testified, “then next thing I
know I was beside the miner getting shocked.” Dep. at 18. McCurdy stated that he could not
remember how his finger contacted a live wire.
The Judge found there was no evidence to contradict McCurdy’s recounting of the
events, that McCurdy was credible, and that the Secretary did not challenge McCurdy’s credible
recounting of the events.2 McCurdy was hospitalized for one day as a result of the electric shock.
2

During MSHA Inspector Robert Bretzman’s deposition, however, he differentiated
between troubleshooting and performing electrical work within the controller box. He testified
that he believed that McCurdy inserted his hand into the controller box and, at that point, he was
no longer troubleshooting, but instead, was performing work within the box. Bretzman Dep. at
65-68.

41 FMSHRC Page 580

MSHA Inspector Robert Bretzman subsequently investigated the accident. On May 24,
2011, MSHA issued Order No. 8432253 to the operator as a result of the accident. The order
alleged a violation of 30 C.F.R. § 75.1720(c). This standard requires miners to wear “[p]rotective
gloves when handling materials or performing work which might cause injury to the hands”
unless such gloves “would create a greater hazard by becoming entangled in the moving parts of
equipment.” The order alleged that McCurdy was troubleshooting the energized traction
controller without wearing gloves in violation of 30 C.F.R. § 75.1720(c). The order also asserted
that the action was aggravated conduct constituting an unwarrantable failure.
The Secretary and M-Class each moved the Judge for summary decision relying upon
deposition testimony. The Judge denied the Secretary’s cross-motion for summary decision and
granted summary decision in favor of M-Class. The Judge found that the Secretary had failed to
prove a violation, i.e., he had not shown by a preponderance of the evidence that McCurdy failed
to wear gloves while performing work which might cause injury to his hands. As a result, the
Judge vacated the order. 39 FMSHRC at 848-49.
The deposition testimony discussed an “imaginary line” that, when crossed, establishes a
miner is “working” on energized equipment. From the testimony and exhibits, it is clear this
“imaginary line” is a degree of proximity to a live wire, the crossing of which, according to the
Secretary, requires use of personal protective equipment such as gloves.
The Judge concluded that the facts were undisputed and that the Secretary failed to carry
his burden of proof. The core of the Judge’s ruling was:
McCurdy’s testimony indicates he was knowledgeable and trained
in proper procedures, such as the convention against crossing the
“imaginary line” into an energized electrical panel, and exhibited
proper respect for them; he was an experienced electrician who
would not be expected to intentionally or needlessly expose
himself to potentially fatal injuries by reaching into an energized
panel barehanded. I find the evidence insufficient for the Secretary
to prevail on an argument that McCurdy was tracing wires or
performing other work that posed a risk of injury to his hands at
any one time when he was not wearing gloves.
Id. at 848 (citations omitted).3
3

The Judge also found that:
[T]he Secretary’s evidence is insufficient to . . . rule out the
possibility that [McCurdy’s] contact with the unidentified electrical
component resulted from a loss of balance, a fall, or some other
inadvertent motion that led him to accidentally contact the
electrical panel. The regulation cannot have intended to punish him
for accidentally contacting a live wire when the Secretary cannot
(continued…)

41 FMSHRC Page 581

In addition, the Judge rejected the Secretary’s interpretation of the standard “that gloves
must be worn at all times whenever a miner is troubleshooting.” Id. at 847. In doing so, the Judge
stated that such an interpretation was contrary to an exception allowing miners to not wear
gloves when doing so would pose a greater hazard.
II.
Standard of Review
The Commission reviews a summary decision de novo. See Lakeview Rock Prods., Inc.
33 FMSHRC 2985, 2988 (Dec. 2011). When reviewing a record on summary decision, a Judge
must evaluate the evidence in the light most favorable to the non-moving party. Hanson
Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007). Consequently, “inferences to be
drawn from the underlying facts contained in [the] materials [supporting the motion] must be
viewed in the light most favorable to the party opposing the motion.” United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962); see also Poller v. Columbia Broadcasting Sys., Inc., 368 U.S.
464, 473 (1962).
Summary decision should not be granted “unless the entire record shows a right to
judgment with such clarity as to leave no room for controversy and establishes affirmatively that
the adverse party cannot prevail under any circumstances.” KenAmerican Res., Inc., 38
FMSHRC 1943, 1947 (Aug. 2016) (internal quotations omitted). Summary decision is
appropriate only if there are no material facts in dispute and the movant’s position is entitled to
judgment as a matter of law. West Alabama Sand & Gravel, Inc., 37 FMSHRC 1884, 1886-87
(Sep. 2015). When the record before the Judge contains disputed material facts, the proper
course of action is to vacate the grant of summary decision and remand the matter for an
evidentiary hearing. See Energy West Mining, Co., 17 FMSHRC 1313, 1316-17 (Aug. 1995).
Cross-motions for summary judgment must be considered separately and on their own merits.
Hanson, 29 FMSHRC at 10.

3

(… continued)

prove he was taking the sort of foreseeable risk that would have
obligated him to wear gloves.
39 FMSHRC at 847.

41 FMSHRC Page 582

III.
Disposition
The Secretary presents three arguments on appeal. Two are disposed of easily. The third
requires remand.
A. The Secretary Wrongly Argues that the Standard Requires the Wearing of
Gloves whenever a Miner is “Troubleshooting” an Electrical Problem.4
The Secretary sweeps too broadly in contending that, with one limited exception, all
“troubleshooting” of electrical components requires a miner to wear gloves. An initial and
obvious deficiency is that the Secretary does not attempt to define the nature of activities that
constitute “troubleshooting.” Use of a broad and completely undefined term to establish the
parameters of a violation requiring imposition of a civil penalty raises immediate and insuperable
notice difficulties. It is fair to state, for example, that the first step of troubleshooting is thinking
about the problem and ways in which one might solve the problem. This could include looking at
schematics and/or a host of other activities at a distance from a machine that do not present any
danger to a person’s hands. It would be entirely unnecessary, if not impractical, to require gloves
under those circumstances. Certainly, that is not the aim of a standard intended to protect miners
from the danger of touching exposed live wires.
Separately, although the facts of a given situation may cause application of the standard
to be a close case, the standard itself is quite clear. It requires the wearing of gloves “when
handling materials or performing work which might cause injury to the hands.” Clearly, this
standard may present disputed issues of whether a miner is performing work fairly determined to
be within the scope of the standard. However, the standard provides clear notice to the regulated
parties and a standard against which to judge a Respondent’s actions. The Judge correctly
rejected the Secretary’s contention that section 75.509 in Volume 5 of MSHA’s Program Policy

4

As a second argument, the Secretary contends that the Judge misinterpreted the standard
because the Judge read an exception into the standard that the standard does not contain. The
Judge’s observation regarding the removal of gloves to facilitate handling of the remote was only
for rejecting a contention that the nature of troubleshooting could be determined on the basis of
whether the miner was or was not wearing gloves. 39 FMSHRC at 847. The Judge’s reference to
the exception did not read an additional exception into the standard. It merely directed attention
to the fact that the focus of the standard is on whether the miner’s actions create a danger of
injury to his hands.

41 FMSHRC Page 583

Manual means that all troubleshooting requires use of gloves.5 V MSHA, U.S. Dep’t of Labor,
Program Policy Manual Part 75, at 53 (Feb. 2003).
We cannot vary from the plain words of the standard because parties may sometimes
disagree whether the work presented a danger of injury to the hands. Such factual disputes are
the gravamen of many Mine Act hearings.6
B. The Judge Impermissibly Drew an Inference Favorable to the Movant in
Granting Summary Decision.
The Secretary contends that the Judge erred at the summary decision stage by making an
inference favorable to the Respondent—namely, that the Secretary could not prove McCurdy
was performing work that created a foreseeable risk of injury to his hands. We agree.
Section 75.1720(c) is a broad standard. The Commission has consistently applied the
reasonably prudent person test to broadly-worded standards. See, e.g., U.S. Steel Mining Co., 27
FMSHRC 435, 439 (May 2005). In Sunbelt Rentals, Inc., 38 FMSHRC 1619, 1626-27 (July
2016), the Commission stated that certain standards are “drafted in general terms in order to be
5

As noted above, Inspector Bretzman differentiated between troubleshooting and
performing electrical work within the controller box. Bretzman Dep. at 20. Bretzman’s belief
was that McCurdy inserted his hand into the controller box and, at that point, he was no longer
troubleshooting but performing work within the box. Apparently, MSHA’s position before the
Commission is that a miner must always wear gloves during “troubleshooting” even if that
person is just thinking about the problem or not close to the electrical source. This makes no
practical sense. Our dissenting colleagues apparently draw the same illogical conclusion in
asserting “[t]his type of intellectual deliberation occurring next to energized equipment counts as
work as much as any physical labor McCurdy undertook in his attempt to repair the miner–in
fact, it is an integral part of the repair process.” Slip op. at 2. On summary judgment, the record
was devoid of evidence to support our colleagues’ conclusory inference that the intellectual
deliberations, in this case, constituted not merely “work” but “work which might cause injury to
the hands.” Indeed, the purpose of remand is to allow presentation of evidence on this outcomedeterminative point. We simply do not give either party the benefit of a conclusory inference.
6

Excising one sentence from the Judge’s decision, our colleagues suggest that the
gravamen of the Judge’s decision was a finding that McCurdy was not “performing work.” Slip
op. at 2. That is incorrect. The Judge found that the Secretary did not prove by a preponderance
of the evidence that McCurdy was engaged in work that might cause injury to his hands. The
Judge held “[t]he regulation cannot have intended to punish him for accidentally contacting a
live wire when the Secretary cannot prove he was taking the sort of foreseeable risk that would
have obligated him to wear gloves.” 39 FMSHRC at 847. Thus, rather than inserting an “intent”
requirement into the regulation, the Judge applied the burden of proof standard to the Secretary’s
obligation to prove McCurdy was engaged in work “which might cause injury to the hands . . . .”
30 C.F.R. § 75.1720(c). Similarly, the operator did not rely upon an absence of any work but
rather absence of proof that the miner’s specific activity might cause injury to his hand. Resp’t’s
Resp. in Opp. to PDR at 5, 8-9.

41 FMSHRC Page 584

broadly adaptable to the varying circumstances of a mine.” It ruled that such broadly-worded
standards are appropriate for application of the reasonably prudent person test.
Under this test, an alleged violation is appropriately measured against whether a
reasonably prudent person, familiar with the factual circumstances surrounding the allegedly
hazardous condition, including any facts peculiar to the mining industry, would recognize a
hazard within the purview of the applicable regulation. Spartan Mining Co., Inc., 30 FMSHRC
699, 711 (Aug. 2008); see also Asarco, Inc., 14 FMSHRC 941, 948 (June 1992); Alabama ByProducts Corp., 4 FMSHRC 2128, 2129 (Dec. 1982). In this case, the miner was a certified
electrician. Consequently, the outcome-determinative issue is whether a reasonably prudent
certified electrician, familiar with the hazard, should have recognized a risk of injury to his
hands, thus requiring the use of gloves.
The record before the Judge did not present a sufficient basis for a final determination of
this issue. The Judge’s finding that the Secretary could not prove his case amounts to an
inference that, upon a hearing on a full record, the Secretary could not prove a violation. The
drawing of such an inference constituted error. There remain disputed and/or unresolved facts
and issues, the resolution of which could be outcome-determinative. To be clear, the issue is not
the specific act McCurdy was doing when he was shocked. It is not a matter of differentiating
between whether he was thinking about what to do next, versus whether he was inserting his
hands into the equipment. The miner need not be intentionally working on the equipment itself if
the task he is performing poses a risk of injury.
Inferentially, the Judge concluded that the evidence did not prove McCurdy inserted his
hand into the controller box to trace wires, but only that he was kneeling before the controller
box and thinking about what to do next when an accident occurred. That is not the end of the
case if, under the specific circumstances at the site, a reasonable certified electrician kneeling
before the controller box would have put on gloves to mitigate a risk of injury.
From the deposition testimony and briefing of the parties, it appears that three interrelated
facts bear on whether McCurdy should have recognized a risk of injury to his hands requiring the
donning of gloves. These are: (1) the positioning of the miner’s hands, (2) the electrical source of
potential danger, and (3) the entire range of mine-specific circumstances that might affect the
risk of danger in light of the source of danger and actions of the miner.
Without doubt, an immediate question that arises in this case is the proximity of the
miner’s hands to the power source as he knelt before the controller box. The regulation does not
seek to prevent only intentional contacts with live wires but also contacts that might result from
an inadvertent movement. Therefore, the miner must keep his hands at a distance from the power
source sufficient to mitigate the likelihood of touching an exposed wire. At the same time, this
does not mean that every accidental contact is a per se violation of the standard. Again, the
standard requires an examination of the actions of a miner under the specific circumstances
unique to the facts of the case. If, here, the miner was acting reasonably, an inadvertent action
would not give rise to a violation.

41 FMSHRC Page 585

This leads to a second important consideration. In addition to the deposition testimony
about an imaginary line, the Secretary’s Petition for Discretionary Review refers to a number of
reports by safety agencies and institutions regarding the risk of shock. These reports discuss and
advise upon the distance at which a person should put on personal protective equipment when
approaching a live electric power source. These include a manual published by the National
Institute for Occupational Safety and Health (“NIOSH”). NIOSH, Electrical Safety, Safety and
Health for Electrical Trades, Student Manual Revised Edition Pub. 2009-113 (April 2009),
https://www.cdc.gov/niosh/docs/2009-113/pdfs/2009-113.pdf. The publication discusses
“approach boundaries” characterized as a key to protecting oneself from electric shock.7
From these sources, it is clear even to laymen that an important consideration of the
danger to hands is the source of the possible shock, including the voltage at such source. The
strength of the source of the danger is an element of the distances to which trained and qualified
persons may approach the electric source without personal protective equipment.
Here, McCurdy testified that he was kneeling in front of the controller thinking about
what to do. Essentially, therefore, McCurdy testified he was not working on the controller box
but simply thinking about what he would do next. However, that testimony does not provide any
information at all about the danger of electrical components in the control box or the distance of
his hands from the box as he, according to his testimony, considered a next step. With McCurdy
having testified to an absence of memory, and two more years having passed, it may be unlikely
that a hearing will produce much more evidence on this subject. However, evidence, including
testimony about prior troubleshooting instances and/or about the strength and danger of the
electrical components in the box, may be helpful in deciding the reasonableness of McCurdy’s
decision not to don the gloves.
Finally, other circumstances specific to the particular event may come into play. As
noted, the Judge may seek testimonial evidence regarding McCurdy’s past practice when
troubleshooting energized electrical components, relevant industry and his own practices
regarding the use of protective gloves in close proximity to energized electrical wiring of
continuous mining machines, and ground and lighting conditions at the time of the shock. For
example, were the ground conditions at the site stable, dry, wet, rough, or otherwise relevant to
7

The NIOSH manual states that the boundaries are drawn from the National Fire
Protection Association’s NFPA 70E. NFPA, Standard for Electrical Safety in the Workplace,
70E (2018 Ed.). That publication defines a “limited approach boundary” as “[a]n approach limit
at a distance from an exposed energized electrical conductor or circuit part within which a shock
hazard exists.” Id. at 70E-10. In turn, “a restricted approach boundary” is “[a]n approach limit at
a distance from an exposed energized electrical conductor or circuit part within which there is an
increased likelihood of electric shock, due to electrical arc-over combined with inadvertent
movement.” Id. The “prohibited approach boundary” is the distance you must stay from exposed live
parts to prevent flashover or arcing in air. We do not delve into the specific of these texts. It is
sufficient to note that such manuals contain discussions of the location of a qualified person’s
hand vis-à-vis the need for personal protective equipment in light of the source of a potential
shock. They may provide a basis for expert testimony or analysis.

41 FMSHRC Page 586

any danger? Was the current on the machine direct or alternating?8 Could McCurdy’s hand have
been attracted to the wire?9 Where in the controller box was the wire located that was touched by
McCurdy? Was it located in an area prone to incidental contact or does its position make an
inadvertent contact unlikely?
Although there were cross-motions for summary decision, from the foregoing, it is clear
that summary decision was inappropriate. The Judge inferred that McCurdy never intentionally
touched the energized wires barehanded, even though an inspector’s notes suggested that
McCurdy did so. 39 FMSHRC at 848; see also Inspector Bretzman’s notes on May 23, 2011 at
16 (stating that McCurdy traced energized wires immediately prior to the shock). Further, the
Judge assumed that McCurdy, as an experienced electrician, would never have exposed himself
to potentially fatal injuries by reaching into the energized panel barehanded. 39 FMSHRC at 848.

8

Inspector Robert Bretzman testified in his deposition that he was trying to determine
whether McCurdy “was into something other than the 110.” Bretzman Dep. at 64.
9

Inspector Bretzman testified that he was concerned “because [McCurdy] was locked
into the power and it was not—it’s not my experience that 110 will lock you in that hard to
where you can’t get out.” Id. at 63.

41 FMSHRC Page 587

In short, on M-Class’ motion, the Judge viewed critical evidence in the light most
favorable to M-Class, the party that moved for summary decision—not the Secretary. This was
erroneous. The finding that the Secretary did not present sufficient evidence to prevail, however,
does not mean that the Secretary could not prevail at a hearing where evidence is presented on
such matters, as discussed above.
IV.
Conclusion
We hereby vacate the Judge’s decision and remand this case for further proceedings in
accordance with this decision.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

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

/s/ William I. Althen
William I. Althen, Commissioner

41 FMSHRC Page 588

Commissioners Jordan and Traynor, concurring in part and dissenting in part:
Although we agree with our colleagues that the Judge erred in granting summary decision
to M-Class, we believe no remand is required regarding the issue of whether a violation of 30
C.F.R. § 75.1720 occurred. On that question, we conclude that summary decision for the
Secretary is appropriate. Remand is only necessary to determine whether the citation was
properly designated significant and substantial and resulted from the operator’s unwarrantable
failure, and to determine the level of negligence and the amount of the penalty.
The cited standard requires miners to wear protective gloves when handling materials or
performing work which might cause injury to the hands.10 Notably, the standard at issue does not
require a likelihood of injury to the hand–it only requires a possibility of injury to the hand. Here,
of course, there is no need to consider the possibility that McCurdy’s actions might result in
injury; it is undisputed that McCurdy’s hand was injured. The relevant question is therefore
would a reasonable miner have foreseen that possibility of injury and therefore understood the
corresponding need to wear gloves?
McCurdy’s injury occurred during his attempts to fix the continuous miner. After taking a
number of steps to figure out why the machine was intermittently losing power, McCurdy left to
check on two miners working on a shuttle car in the crosscut. When he returned, he paused
momentarily, kneeling in front of the energized continuous miner and its open electrical panel.
He was thinking about what to do next, with his gloves sitting on top of the machine and his
tools sitting on the machine and in his bibs. Id. at 848. He testified that he was “[l]ooking in the
panel” and specified: “I was knelt down beside the miner . . . . I remember kneeling down beside
the panel.” McCurdy Dep. at 18-19.
McCurdy’s testimony as to what happened immediately prior to his injury is very sparse.
McCurdy states that the only thing he recalls after kneeling down beside the panel is that he was
“beside the [machine] getting shocked.” McCurdy Dep. at 18. He had touched an energized wire
without wearing gloves, and could not pull his hand away. Two miners pulled him out of the
current. He was hospitalized overnight. 39 FMSHRC at 841.

10

The standard states in relevant part:
[E]ach miner regularly employed in the active workings of an
underground coal mine shall be required to wear the following
protective clothing and devices:
...
(c) Protective gloves when handling materials or performing work
which might cause injury to the hands; however, gloves shall not
be worn where they would create a greater hazard by becoming
entangled in the moving parts of equipment.

30 C.F.R. § 75.1720.

41 FMSHRC Page 589

The operator speculates that McCurdy tripped or fell in the control panel when getting up
from his kneeling position. Resp’t’s Resp. in Opp. to PDR at 8. Even assuming this to be the
case, a miner who positions himself in such proximity to energized wires so that a loss of balance
could result in an inadvertent contact should have foreseen the possibility of injury and the
corresponding need to wear gloves.
This is so because any miner knows that working on energized electric equipment is the
exception, not the rule, and as the Secretary notes, should be viewed as a “situation of last
resort.” S. Reply Br. at 5. Section 75.509 mandates that electric equipment be de-energized
before work is performed, except when necessary for troubleshooting or testing. If this exception
is invoked and the machinery is not de-energized, section 75.1720 then requires that protective
gloves must be worn when performing work that might cause injury to the hands.11 McCurdy
himself acknowledged, in an interview with an MSHA inspector at the hospital after the
accident, that he realized he should have left his gloves on. Inspector Bretzman’s Declaration at
4.
Noting that the standard in question requires gloves to be worn only when “performing
work that might cause injury to the hands” (emphasis added), M-Class seeks to avoid liability by
contending that McCurdy’s action of pausing and kneeling by the mining machine to consider
what steps he needed to take to repair it cannot be considered “performing work.”12 However, in
light of the undisputed facts in this case, the only reasonable inference that can be drawn is that
McCurdy was performing work. It appears that our colleagues in the majority agree. Slip op. at
7. McCurdy was assigned a job–to repair the continuous miner–and took a variety of steps to
complete it. He was engaged in an activity performed every day by miners–fixing machinery.
His painstaking efforts to discover why the continuous miner was broken show that he was
diligently trying to complete his assigned task.
When McCurdy knelt by the machine and paused to consider what steps he needed to
take to repair it, he was still “performing work.” As he stated: [I was] [t]rying to go through my
head to figure out what else I could do to make this machine drop out.” Dep. at 19. This type of
intellectual deliberation occurring next to energized equipment counts as work as much as any
physical labor McCurdy undertook in his attempt to repair the miner–in fact, it is an integral part
of the repair process. Moreover, rather than considering each of his actions separately as he tried
to figure out what was wrong with the continuous miner, we must take into account the totality
of his conduct leading up to the moment he was shocked. Clearly, his numerous attempts to
11

The Commission has acknowledged the importance of wearing protective gloves. In a
case involving a violation of 30 C.F.R. § 75.509 (requiring that equipment be de-energized
before work is done, except when necessary for troubleshooting or testing), we noted that
although the miner wore gloves in performing repairs, when he used his bare hand to lift stray
wires inside an energized electrical panel and out of the way, he “made a serious error in taking
the gloves off prematurely.” American Coal Co., 39 FMSHRC 8, 14 (Jan. 2017).
12

The operator claims that there is no violation of section 75.1720(c) if a miner
accidentally falls into an energized control panel without wearing gloves, because “[t]hat is an
accident, not ‘handling materials or performing work.’” Resp’t’s Resp. in Opp. to PDR at 9.

41 FMSHRC Page 590

discover why the machine was not properly operating–including his effort, just prior to being
shocked, to think through the process and figure out his next steps–constitute “performing
work.”
The Judge’s ruling that McCurdy was not “performing work” was erroneous. She stated
that:
I find that the Secretary has failed to prove by a preponderance that
McCurdy was engaging in work at the moment the accident
occurred. It was a completely inadvertent and unforeseeable
occurrence. I find, therefore, that the evidence is insufficient for
the Secretary to prevail on this argument.
...
[t]he Secretary’s evidence is insufficient to establish exactly what
[the miner] was doing at the time he was shocked or to rule out the
possibility that his contact with the unidentified electrical
component resulted from a loss of balance, a fall, or some other
inadvertent motion that led him to accidentally contact the
electrical panel. The regulation cannot have intended to punish him
for accidentally contacting a live wire when the Secretary cannot
prove he was taking the sort of foreseeable risk that would have
obligated him to wear gloves.
39 FMSHRC at 846-7.
In so holding, the Judge improperly inserted an intent requirement into the Secretary’s
burden of proof.13 As previously discussed, the Secretary did not need to prove that McCurdy
deliberately touched the wire. The health and safety standards promulgated under the Mine Act
protect miners from harm resulting from accidents and unintentional acts as well as from
intentional conduct that is unsafe. Consequently, inadvertent contact with an energized panel is
encompassed in the protection afforded by this safety standard.
Despite the Judge’s errors, we fail to see the need to remand this eight-year old case to
the Judge for a hearing. The majority states that there are disputed facts that must be resolved
before one can determine that a reasonably prudent miner would have worn gloves under the
circumstances presented here. We disagree.
Let us examine the three factual areas that the majority suggests should be considered on
remand:
First, our colleagues request information on “the proximity of the miner’s hands to the
power source as he knelt before the controller box.” Slip op. at 7. As discussed above, it is
undisputed that McCurdy was kneeling by an energized panel on the continuous miner, and this
13

We would submit that nobody intends to touch an energized wire.

41 FMSHRC Page 591

alone, in our view, places his hands in a location where they might be injured (and thus gloves
were required). Moreover, as a practical matter, we are hard-pressed to see how this evidence
would be obtained on remand. As the majority recognizes, in his deposition (taken two and a half
years ago), McCurdy stated that he remembered kneeling down beside the panel and looking at
it. McCurdy Dep. at 19. When asked what happened next, he stated that “[s]omehow I touched
the 110 wire or touched an energized wire.” McCurdy Dep. at 22. McCurdy testified that he had
no explanation of how he went from kneeling in front of the machine to being caught by the
power. McCurdy Dep. at 36. The majority nonetheless remands to determine the distance of his
hands from the box as McCurdy considered his next step. Slip op. at 8. Given that he was
kneeling by the machine, we consider this specific inquiry immaterial–and we would be
surprised if McCurdy (the only witness to the event, prior to his rescue by his fellow miners)
would be able to supplement his deposition testimony with more elaborate detail as to where
exactly his hands were positioned. In fact, our colleagues appear to share this concern. Id.
Second, our colleagues remand for a determination of the electrical source of potential
danger–that is, the danger of the electrical components in the control box. Id. They state that this
evidence may be useful in deciding whether McCurdy was reasonable when he failed to wear the
protective gloves.
Again, we do not consider this a material fact for the inquiry at hand. Here is what we
already know: McCurdy touched a wire and tried to pull his hand away. He “screamed” and
“tried to pull back.” Dep. at 22. Two hourly mine workers responded to his screams and pulled
him out of the electrical current. Inspector Bretzman’s Declaration at 2. Clearly, whatever the
magnitude of the electrical components in the box, they were strong enough to shock McCurdy
and send him to the hospital. No further evidence is needed–and we suspect none can be
developed, given McCurdy’s hazy memory of this long-ago event.
In addition to these concerns, we would be reluctant to remand this case for the remaining
reasons set forth by the majority–so that the Judge may examine “the entire range of minespecific circumstances that might affect the risk of danger in light of the source of danger and
actions of the miner.” Slip op. at 7. The majority fails to explain why, given the fact that
McCurdy received a severe shock, the Judge on remand should examine ground conditions at the
site, the type of current on the machine, and the exact location of the wire that McCurdy touched.
Given what we already know, this appears to be extraneous evidence that probably will be
difficult, if not impossible to obtain. Indeed, in terms of pinpointing the location of the wire, the
inspector’s notes indicate that McCurdy told him that he did “not remember what he touched,
everything is a blur. . . . McCurdy was not able to provide evidence to conclude what he touched
in [the] panel.” Inspector Bretzman’s notes on May 23, 2011 at 16-17.

41 FMSHRC Page 592

In conclusion, in light of the undisputed facts, and as a matter of law, M-Class violated
section 75.1720. Thus summary decision for the Secretary is appropriate. The Judge’s ruling
should be reversed, summary decision granted for the Secretary, and the case remanded for a
determination regarding whether the violation was “significant and substantial,” the level of
negligence, unwarrantable failure, and the penalty.

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

41 FMSHRC Page 593

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

September 30, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. LAKE 2017-52

SOLAR SOURCES MINING, LLC
BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners
DECISION
BY: Rajkovich, Chairman; Young and Althen, Commissioners
This proceeding arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2012) (“Mine Act” or “Act”) comes before us on interlocutory review of the
decision of an Administrative Law Judge denying the Secretary’s motion, with which the
operator agreed, to approve settlement of three citations. 39 FMSHRC 2052 (Nov. 2017) (ALJ).
Two of the citations were regularly assessed and one was specially assessed. Each
regularly assessed citation was for $4,548. The special assessment on the third citation was for
$68,300, making the total assessment $77,396 for all three citations. Under the terms of the
proposed settlement, the operator, Solar Sources Mining, LLC (“Solar Sources”), would accept
responsibility for all three violations as written, including negligence and gravity, and would pay
a penalty of $13,644, equivalent to the regular assessment total for all three violations. Id. at
2054-55.1
The Judge concluded that the motion presented “no facts” in support of the settlement
and that the Secretary’s refusal to provide copies of the inspector’s notes and photographs
prevented him from being able to discern whether the proposed settlement was appropriate. 39
FMSHRC at 2059.

1

The proposed reduction is exactly the difference between the regular and special
assessments for the third citation. See 30 C.F.R. § 100; MSHA General Procedures of Special
Assessments. The Commission is not bound by the Secretary’s proposed assessments and has a
duty to assess penalties independently. The American Coal Co., 38 FMSHRC 1987, 1990 (Aug.
2016) (“AmCoal Special Assessments I”).

41 FMSHRC Page 594

The parties filed a joint motion to certify issues for interlocutory review and a motion to
suspend the hearing pending Commission review. The Judge granted both motions, and the
Commission granted review of the following issues:
(1) Whether the Secretary of Labor possesses unreviewable discretion to withdraw a
specially assessed proposed penalty;
(2) Whether the Judge erred by requiring the Secretary to produce the inspector’s notes and
photographs during the settlement process and before a hearing on the merits; and
(3) Whether the Judge abused his discretion in denying the settlement motion.
We conclude that the Judge abused his discretion in considering the settlement.
Therefore, we reverse the Judge’s decision and approve the settlement.
I.
Facts and Proceedings Below
A. Background
The three citations involved in this case were issued after an accident at Solar Sources’
Antioch Mine, a surface coal mine located in Davies County, Indiana. On July 8, 2016, a miner
was injured severely when he fell from a catwalk on a Euclid 3500 end dump truck due to an
obstruction on the catwalk and the failure of a chain he relied upon for support.
A rope tied from the truck’s cab to the rear-view mirror, extending along the length of the
catwalk at a height of about 57 to 59 inches, made it awkward for the miner to exit from the cab.
When the miner bent down to pass under the rope, he lost his hard hat. Then, when he bent down
to retrieve the hard hat, he leaned onto a severely corroded handrail chain. The chain broke, and
the miner fell nearly 14 feet to the ground below. 39 FMSHRC at 2054.
MSHA conducted an accident investigation on July 25, 2016, and issued the following
citations to the operator:
-

Citation No. 9102709 alleged a violation of 30 C.F.R. § 77.1606(c)2 because the
handrail chain with defects affecting safety was not corrected before the equipment
was used.

2

30 C.F.R. § 77.1606(c) provides that “[e]quipment defects affecting safety shall be
corrected before the equipment is used.”

41 FMSHRC Page 595

-

Citation No. 9102711 alleged a violation of 30 C.F.R. § 77.1601(a)3 because the same
equipment’s safety defects were not recorded in the pre-op record book on the second
shift on July 7, 2016.

-

Citation No. 9102710 alleged a violation of 30 C.F.R. § 77.1101(c)4 because the
operator’s plans for escape and evacuation did not include proper maintenance of
adequate means for the exit of all areas where persons are required to work or travel.5

The MSHA inspector designated each violation as “significant and substantial” and the
result of the operator’s moderate negligence. With regard to gravity for each violation, the
inspector designated the injury as “occurred,” reasonably expected to result in lost work days or
restricted duty, and one miner affected. As stated, MSHA proposed regular penalty assessments
of $4,548 each for Citation Nos. 9102709 and 9102711 and proposed a special assessment of
$68,300 for Citation No. 9102710.
B. Motion to Approve Settlement
The operator contested three citations. As stated above, the motion to approve settlement
provided that the operator agreed to accept all aspects of Citation Nos. 9102709 and 9102711 as
written and pay the $4,548 regular penalty assessments for each citation. Additionally, the
operator agreed to accept all aspects of Citation No. 9102710 as written, including negligence
and gravity, and to pay $13,644, a total reflecting the regular assessment calculated for all three
citations. In the settlement motion, the Secretary agreed to apply the regular penalty assessment
under 30 C.F.R. Part 100. Consequently, Solar Sources would accept the violation in its entirety
and pay the regular penalty for the violation.
Regarding Citation No. 9102710, the motion asserted that there were factual and legal
issues in dispute. These included the operator’s contentions that the cited standard at 30 C.F.R.
§ 77.1101(c) related to emergency escapes and evacuations in case of fire, and thus arguably was
3

30 C.F.R. § 77.1606(a) provides that “[m]obile loading and haulage equipment shall be
inspected by a competent person before such equipment is placed in operation” and that
“[e]quipment defects affecting safety shall be recorded and reported to the mine operator.”
4

30 C.F.R. § 77.1101(a) requires operators to establish and keep current a specific escape
and evacuation plan to be followed in case of a fire. In turn, the cited standard, 30 C.F.R. §
1101(c), provides that “[p]lans for escape and evacuation shall include the designation and
proper maintenance of adequate means for exit from all areas where persons are required to work
or travel including buildings and equipment and in areas where persons normally congregate
during the work shift.” There was no fire from which escape or evacuation was necessary.
5

The citation was abated by posting an evacuation plan for the truck, which instructed
the driver to leave the cab by one of two doors, use the walkway outside the cab, and walk to the
front of the truck to climb down the ladder to the ground. This was the only means of exit. SS Br.
at 2-3.

41 FMSHRC Page 596

not applicable to the cab of mobile equipment or to the circumstances of the violation, and that,
in any event, a heightened special assessment was not justified. The Secretary asserted that the
citation was valid as written, but agreed that the facts did not support the special assessment.
Noting his interest in “maximizing his prosecutorial impact in settling this case on appropriate
terms and in litigating other cases in which settlement was not appropriate,” the Secretary
maintained that the settlement was “reasonable” and served “to effect the intent and purpose of
the Mine Act.”
On November 6, 2017, the Judge requested via email that the Secretary submit a copy of
the MSHA inspector’s notes and photographs. The Secretary responded the same day declining
the Judge’s request. On November 13, the Judge advised the parties that he could not properly
review the settlement without the requested evidence and informed the parties that if the
Secretary continued to withhold them, he would issue a denial of the proposed settlement. On
November 15, the Secretary responded that he had reconsidered the Judge’s request and still
declined to provide the demanded information, resting on his settlement motion.
C. The Judge’s Decision
In denying the motion to approve the settlement, the Judge stated that the parties
provided “no facts” to support the settlement. 39 FMSHRC at 2052 (emphasis in original). The
Judge held that “it is within the Court’s prerogative to require the Secretary to submit the
[MSHA] inspector’s notes and photos, if the Court believes that such information is necessary in
determining if a compromise or mitigation in a settlement motion is appropriate.” 39 FMSHRC
at 2057.
Given the Secretary’s failure to provide the specifically demanded documents, the Judge
opined that he lacked the ability to perform his “Congressionally delegated responsibility under
30 U.S.C. § 820(k).” Id. The Judge rejected the Secretary’s willingness to settle by applying its
regular penalty formula. Id. at 2058. The Judge invited the Secretary to submit a “properly
supported” motion, along with the requested documents. Otherwise, the case would be set for
hearing.
D. Motion for Reconsideration and Request for Interlocutory Review
On January 18, 2018, the parties filed a Joint Motion to Reconsider Decision Rejecting
Proposed Settlement. The parties noted that in AmCoal Special Assessments I, 38 FMSHRC at
1991, the Commission held that MSHA had unreviewable discretion as to whether to propose a
regular or special assessment. The parties argued that Commission decisions supported the
conclusion that MSHA’s decision to withdraw the special assessment is wholly within the
agency’s discretion. The parties also argued that the Judge’s demand for the inspector’s notes
and photographs raised policy concerns involving compromise of the Secretary’s litigation
position should the case go to hearing. They explained that such evidence may reveal potential
weaknesses in the Secretary’s case and that such information could likewise be required of the

41 FMSHRC Page 597

operator, thereby compromising its litigation position and tainting the Judge’s view of the issues
in the case prior to hearing.6
On April 3, 2018, the Judge issued an order denying the parties’ motion for
reconsideration. The Judge acknowledged the parties’ argument that the settlement motion
detailed several factors in support, including the citation’s issuance for a non-fatal accident, the
parties’ disagreement as to the applicability of section 77.1101(c), and the propriety of a special
assessment, but concluded that these factors did not constitute facts and thus did not support the
settlement. The Judge rejected the parties’ argument that MSHA has unreviewable discretion to
withdraw a special assessment. The Judge also dismissed the Secretary’s policy concerns
regarding his demand for the inspector’s notes and photos asserted that any matters discussed in
settlement could not be considered in a hearing on the merits and, in any event, such evidence
would be discoverable.
On April 16, 2018, the parties filed a joint motion to certify the case for interlocutory
review and a joint motion to suspend proceedings pending interlocutory review. The Judge
granted both motions. On May 16, the Commission directed review of the case.
The Commission also stayed briefing pending its consideration of The American Coal
Co., 40 FMSHRC 983 (Aug. 2018) (“AmCoal Settlement II”). On September 10, 2018, the
Commission issued a briefing order directing the parties to address the Commission’s decision in
AmCoal Settlement II.
II.
Disposition
A. Parties’ Arguments on Appeal
The parties argue that the Secretary possesses unreviewable discretion to withdraw a
specially assessed penalty. They also argue that the Judge erred by requiring the Secretary to
produce the inspector’s notes and photographs during the settlement process and before the case
proceeded to a hearing on the merits. They contend that the Judge abused his discretion by
denying the settlement motion because of the Secretary’s refusal to provide the requested
documents and because the Secretary allegedly presented no facts to support the settlement. They
assert that the Judge also erred by failing to apply the appropriate standard articulated by the
Commission in The American Coal Co., 38 FMSHRC 1972 (Aug. 2016) (“AmCoal Settlement
I”) and that the Commission’s decision in AmCoal Settlement II mandates approval of the
6

The Secretary’s argument appears to have been based on principle rather than on
prejudice in this case. See Oral Arg. Tr. at 11, 50-52 (acknowledgment that the requested
documents had been provided to the defendant in discovery). We note that there are other
considerations here, including the fact that the documents in question would be reviewed without
explanation, exposition, or cross-examination. As discussed infra at slip op. at 9-10, we
disapprove of what amounts to a general discovery request by the Judge.

41 FMSHRC Page 598

settlement in this case. They ask the Commission to vacate and reverse the Judge’s decision and
approve the settlement motion.7
B. Standard of Review
The Commission reviews a Judge’s denial of a proposed settlement under an abuse of
discretion standard. Sec’y of Labor on behalf of Shemwell v. Armstrong Coal Co., 36 FMSHRC
1097, 1101 (May 2014); see also Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003) (“If
an agency ‘announces and follows — by rule or by settled course of adjudication — a general
policy by which its exercise of discretion will be governed,’ that exercise may be reviewed for
abuse.”). An abuse of discretion may be found where there is no evidence to support the Judge’s
decision or if the decision is based on an improper understanding of the law. Shemwell, 36
FMSHRC at 1101. In reviewing settlements, “the Commission and its Judges consider whether
the settlement of a proposed penalty is fair, reasonable, appropriate under the facts, and protects
the public interest.” AmCoal Settlement I, 38 FMSHRC at 1976.
C. The Judge’s Denial of the Settlement Motion Constituted an Abuse of
Discretion.
Section 110(k) of the Mine Act sets forth the Commission’s authority to approve
settlements of the Secretary’s proposed assessments once contested and provides:
No proposed penalty which has been contested before the
Commission under section 105(a) shall be compromised,
mitigated, or settled except with the approval of the Commission.
No penalty assessment which has become a final order of the
Commission shall be compromised, mitigated, or settled except
with the approval of the court.
30 U.S.C. § 820(k).
The Commission has concluded that under the clear language of section 110(k), “the
Commission has the exclusive responsibility for approving all proposed settlements of contested
civil penalties.” AmCoal Settlement I, 38 FMSHRC at 1975. The Commission explained that
“Congress authorized the Commission to approve the settlement of contested penalties . . . ‘to
ensure penalties serve as an effective enforcement tool, prevent abuse, and preserve the public
interest.’” Id. at 1976 (quoting Black Beauty Coal Co., 34 FMSHRC 1856, 1862 (Aug. 2012)). In
“effectuating this Congressional mandate, the Commission and its Judges consider whether the
settlement of a proposed penalty is fair, reasonable, appropriate under the facts, and protects the
public interest” (38 FMSHRC at 1976) and “must have sufficient information to fulfill their
duty” (AmCoal Settlement II, 40 FMSHRC at 987). The Commission has required parties to
submit facts supporting a penalty amount agreed to in settlement. This requirement is not limited
7

In the alternative, the Secretary asks the Commission to vacate the Judge’s settlement
denial and remand the case to him to evaluate the motion under the appropriate legal standard.

41 FMSHRC Page 599

to facts affecting the factors contained in section 110(i) of the Mine Act, but may also embrace
facts outside of the section 110(i) factors that support settlement. AmCoal Settlement I, 38
FMSHRC at 1981-82.8
The parties contend that the Judge abused his discretion in denying their settlement. We
agree. There are three principal errors in the Judge’s decision denying the settlement:9
(1) He failed to apply the standard articulated by the Commission in the AmCoal settlement
cases.
(2) He erred in denying the settlement solely based on the Secretary’s refusal to provide a
copy of the inspector’s notes and photos.
(3) He erred in finding that the Secretary failed to provide any facts to support the settlement.
Because the Judge erred in his analysis of the parties’ settlement motion, he abused his
discretion in denying the settlement motion. Thus, we reverse his decision and approve the
settlement.
1. The Judge Erred by Failing to Apply the Correct Standard for Reviewing
Proposed Settlements.
The Judge failed to apply the standard articulated by the Commission in AmCoal
Settlement I.10 Not only did the Judge not mention AmCoal Settlement I at all in his decision but
8

Commission Procedural Rule 31 requires that a motion to approve penalty assessment
include for each violation the penalty proposed by the Secretary, the amount of the penalty
agreed to in settlement, and facts in support of the penalty agreed to by the parties. 29 C.F.R.
§ 2700.31(b)(1). Rule 31 also requires “[a]ny order by the Judge approving a settlement shall set
forth the reasons for approval and shall be supported by the record.” 29 C.F.R. § 2700.31(g).
9

The parties requested that the Commission determine whether the Secretary possesses
unreviewable discretion to withdraw a specially-assessed penalty, and the Commission granted
review of this issue. However, we conclude that the issue is not ripe for consideration in this
case. From the record and statements made by the Secretary’s counsel during oral argument, it
appears that the Secretary has not filed a motion for leave to amend his petition for assessment of
penalty, and therefore has not revised the proposed special assessment or re-proposed a new
assessment. Rather, the parties have submitted a proposed settlement, which they support with
the rationale that the special assessment was not appropriate and that a penalty calculated under
MSHA’s regular assessment formula would be fair and appropriate. We need not address this
issue to resolve the ultimate question of whether the Judge abused his discretion in denying the
settlement in this case, and decline to do so.
10

The Judge in this case was also the Judge whose decision we reviewed in AmCoal
Settlement I.

41 FMSHRC Page 600

he also failed to state the applicable standard for review of settlements as articulated by the
Commission in that case. Moreover, he did not substantively comply with the AmCoal Settlement
I standard of review in his decision denying the settlement.
By failing to apply the correct legal standard, the Judge neglected to consider significant
factors the Commission has highlighted as relevant to the consideration of a proposed settlement.
As more fully discussed herein, the motion actually presented relevant facts and potential
litigation concerns in support of the settlement. The Judge failed to consider these factors and
erroneously concluded that the parties presented no facts to support the settlement. In reviewing
the settlement, he failed to apply the AmCoal standard and consider whether the proposed
settlement was “fair, reasonable, appropriate under the facts, and protects the public interest.”
Accordingly, the Judge erred.
Our decision in AmCoal Settlement I addressed on interlocutory review whether the
Judge abused his discretion in denying the Secretary’s motion for settlement between the
Secretary and the operator because the parties allegedly did not provide factual support for an
across-the-board 30% penalty reduction for each of the 32 citations issued to AmCoal by the
Secretary. 38 FMSHRC at 1972. The Commission held that it and its Judges review a settlement
motion to determine “whether the settlement of a proposed assessment is fair, reasonable,
appropriate under the facts, and protects the public interest.” Id. at 1976.
Agreeing in that case that the Secretary provided no facts to support the proposed penalty
reductions, we affirmed the Judge’s denial of the motion to approve the settlement. Id. at 1985.
In remanding the case to the Judge for further proceedings, the Commission noted that section
110(i) of the Mine Act identifies the bases for such factual support. Id. at 1981. Additionally, we
further held that the parties may submit facts supporting a settlement that fall outside of the
section 110(i) factors. Id. at 1982.
In his decision in this case, the Judge failed to articulate the standard he was applying in
reviewing the settlement. The Judge summarily denied the settlement motion, incorrectly
asserting that the motion presented “no facts.” 39 FMSHRC at 2057 (emphasis in original). The
motion, though, did set forth numerous facts, including those agreed upon by the parties and a
summary of the operator’s arguments as related to those facts. The Secretary also made what
amounts to a binding admission that there was no factual basis for the original special
assessment.11
While Judges have the duty to consider the sufficiency of facts submitted in support of a
settlement, the proper exercise of their discretion in doing so requires them to articulate with
11

We recognize that one might argue that the Secretary’s agreement with Solar Sources
that the penalty should have been regularly assessed rather than specially assessed arose in the
context of settlement. However, there is no indication in the Secretary’s pleadings before the
Judge or the Commission that his agreement was “for purposes of settlement.” Rather the
agreement that a regular assessment was appropriate is set forth as a straightforward statement of
fact.

41 FMSHRC Page 601

some particularity any deficiencies against the standard we set forth in AmCoal Settlement I.
That was not done so here. In particular, the Judge did not explain what type of facts he deemed
necessary in order to review the settlement properly. He simply stated that it was his “prerogative
to require the Secretary to submit . . . such information [he deems] is necessary in determining if
a compromise or mitigation in a settlement motion is appropriate.” Id. at 2057.
In requesting specific documents, the Judge did not explicitly identify any missing facts,
explain why the documents he demanded were necessary under the AmCoal Settlement I
standard, or otherwise provide a rational basis for his request. Not only did his order fail to apply
the Commission’s AmCoal settlement decisions, those cases — the controlling precedent on this
issue — were not mentioned at all in his order denying settlement.12
2. The Judge Erred by Denying the Proposed Settlement Based Solely on the
Secretary’s Refusal to Produce the Inspector’s Notes and Photos.
The Commission has held that a Judge who properly determines that a settlement motion
lacks sufficient information may permissibly request further facts from the parties. See Black
Beauty, 34 FMSHRC at 1863. Ultimately, the facts presented must be sufficient to permit the
Judge to determine if the penalty reduction protects the public interest. However, requesting
additional facts is different from requesting specific documentary evidence, as the Judge did
here. At the pre-hearing settlement stage of a Commission proceeding, no evidence has been
adduced into the record and the Judge is not required to engage in fact finding. Rather, the Judge
is expected to consider the facts as alleged by the parties in their settlement, evaluate such
information under the applicable Commission standard for review, and determine whether the
facts support the penalty agreed to by the parties. See Commission Procedural Rule 31, 29 C.F.R.
§ 2700.31.
Similar to the Judge’s error in concluding that the Secretary presented no facts, the Judge
likewise erred by denying the settlement on the basis that he was not provided specific
documents.
The Judge’s review of the settlement was overly stringent. The Secretary agreed to
reduce the proposed assessment by withdrawing it from the special assessment procedure
without changing any of the underlying findings of the citation, thereby causing the Judge to
question the basis of the decision to withdraw the high dollar penalty. However, the Secretary’s
decision was not devoid of reason as the Judge purported. Rather, the Secretary pointed to
numerous factors that influenced and informed his settlement decision. We do not agree with the
Judge’s characterization that the Secretary’s refusal to provide the documents amounted to a
failure to provide any facts to support the proposed penalty reduction. As the Commission has
identified, facts can be an agreement of the parties that they disagree about certain aspects of the
violation or proposed penalty. AmCoal Settlement II, 40 FMSHRC at 991. The parties are not
12

The Judge was obviously aware of the Commission’s decision in AmCoal Settlement I
because the Commission’s initial decision setting forth the applicable standard was remanded to
him more than a year before the motion and denial in the present case.

41 FMSHRC Page 602

required to make concessions, as long as they “provide mutually acceptable facts that
demonstrate the proposed penalty reduction is fair, reasonable, appropriate under the facts, and
protects the public interest.” Id. The Judge should have considered and addressed these facts in
his decision.
While the Judge may identify gaps in the parties’ explanations or specific information he
may need to review and approve the settlement, he erred here by directing the Secretary to
submit specific documents and denying approval of the settlement based on the Secretary’s
refusal to supply such documents.
3. The Judge Erred By Finding that the Motion Lacked Facts to Support the
Settlement.
While we could remand the case to the Judge to apply the correct standard and correct his
legal errors, as noted above, we conclude that remand is unnecessary because the parties
presented sufficient facts to support that the settlement is fair, reasonable, appropriate, and serves
the public interest. Thus, we reverse the Judge’s denial of the settlement and approve the
settlement.
The Judge summarily stated that the settlement motion, which proposed the application
of the regular assessment, was “without explanation,” providing “no new facts . . . while
simultaneously not changing any of the underlying findings in the citation.” 39 FMSHRC at
2058. Review of the motion refutes this and makes clear that the Judge simply disregarded the
facts and arguments set forth in support of the settlement motion.
During settlement negotiations, the parties disagreed as to the applicability of the cited
standard, 30 C.F.R. § 77.1101(c). Section 77.1101(c) falls under Subpart L of MSHA’s
regulations, entitled “Fire Protection,” a topic with no apparent connection to the defective chain
that resulted in an injury in this incident.13 Subsection (a) of section 77.1101 provides that “each
operator of a mine shall establish and keep current a specific escape and evacuation plan to be
followed in the event of a fire.” Section 77.1101(c) is a further provision to assure the efficient
implementation of escape and evacuation plans when necessary. The parties acknowledged a
dispute over whether the regulation is aimed at (1) mobile vehicles — that is, preparing drivers
how to get out of their trucks by going out one of only two doors — or (2) establishing general
maintenance obligations for mobile vehicles.
Additionally, settlement focuses upon the fact that the violations all involved the same
truck, and more specifically, maintenance of the truck in a condition free from safety defects.
The other two citations involved in this proceeding arise from standards directly related to the
standing duty to inspect mobile equipment and repair safety defects.

13

There was no fire, and we cannot perceive that training consisting of instruction to exit
the cab and descend from the vehicle via the only feasible means of egress would have been
helpful to the miner in this case.

41 FMSHRC Page 603

Section 77.1606(a) provides, “Mobile loading and haulage equipment shall be inspected
by a competent person before such equipment is placed in operation. Equipment defects affecting
safety shall be recorded and reported to the mine operator.” 30 C.F.R. § 77.1606(a).
Section 77.1606(c) provides, “Equipment defects affecting safety shall be
corrected before the equipment is used.” 30 C.F.R. § 77.1606(c).
These sections under Subpart Q address “Loading and Haulage” and clearly are
applicable to the mobile equipment that is the subject of the citations. They explicitly require the
inspection of mobile equipment and the repair of any defects affecting safety before use. In
addition to arguments over whether section 77.1101 is applicable in the first place, this
commonality creates the possibility of an argument that the citations for violation of the directly
applicable regulation are primary and a citation under section 77.1101(c) is duplicative or “piling
on” of citations.14
While the Secretary asserts that the citation was proper but agrees the penalty should
have been regular, he also concedes he would bear the burden of demonstrating the applicability
of the fire protection standard for escape and evacuation in addition to the other directlyapplicable standards. Further, he would need to establish the basis for a heightened penalty, and
he would bear the burden of doing this in a context where he assessed the directly-applicable
standards as regular assessments. Moreover, the Secretary highlighted the enforcement benefits
from the operator accepting the citations as written, with no changes to the findings.
Even were the Secretary completely confident of success in sustaining the violation,
therefore, the parties have stated a substantial reason for accepting the settlement. All penalty
criteria of the three alleged violations are identical, including the negligence and gravity
findings. The assessed penalties of the other two violations are regular penalties for alleged
violations of sections that are directly applicable to the incident. The Secretary alleges
“moderate” negligence for all three citations. Moreover, the incident involved in the citation did

14

Section 77.1101(c) requires the “designation and proper maintenance of adequate
means for exit” in a fire evacuation plan. In essence, the operator is being cited for the same
conduct or omission for this citation as for the failure to correct the defective handrail chain
citation and failure to inspect mobile equipment citation. The only abatement taken for this
evacuation plan citation was to instruct the truck driver to exit from the only means available and
to post this exit plan. Hence, the operator was not required to take any further actions to either
“designate” or “maintain” an adequate means of exit beyond what the operator was already doing
as a general practice. Furthermore, the operator repaired the defective handrail chain in abating
the failure to correct citation. Thus, there was no further action taken to “maintain” the means of
exit. The Commission has found that when an operator is cited for both general and specific
standards involving the same facts, the general citation is duplicative. See Western Fuels-Utah,
Inc., 19 FMSHRC 994, 1004-05 & n.12 (June 1997) (“Had MSHA put on evidence of additional
deficiencies that violated the general regulation, instead of relying on the identical evidence . . .
used to support the violation of the specific standard, we would not have found them
duplicative.”).

41 FMSHRC Page 604

not arise in the context of an escape or evacuation — the type of event that section 77.1101(c)
addresses.
Abatement of the alleged violation of section 77.1101(c) did not involve repair,
modification, or work on the end dump. Instead, the operator abated the violation by posting
instructions regarding how to exit the cab. The abatement had nothing to do with the event that
caused the injury and the failure to have an escape plan telling the operator to go through a door
did not play any role in the accident or injury. Therefore, the Secretary has agreed that the
alleged violation supports only a regular penalty — the same penalty the Secretary proposed for
the alleged violations of directly applicable sections 77.6016(a) and (c).
Under these circumstances, it is entirely reasonable for the Secretary to settle for the
penalty he deems appropriate,15 obtaining the same penalty he seeks for the directly applicable
sections, while avoiding the risk of trial on an alleged violation that faces legal challenges, and
securing a result valuable for future enforcement purposes. The Judge should have considered all
these factors. In AmCoal Settlement II, the Commission explained that the Judge must “accord
due consideration to the entirety of the proposed settlement package, including its monetary and
non-monetary aspects.” 40 FMSHRC at 989 (quoting Sec’y of Labor on behalf of Shemwell v.
Armstrong Coal Co., 36 FMSHRC at 1103). The Commission recognized that significant nonmonetary value flows from “accepting the citations as written.” AmCoal Settlement II, 40
FMSHRC at 989. Accordingly, the Judge erred by not taking into consideration the foregoing
factors submitted by the parties in support of the settlement. His failure to do so led to the denial
of a settlement in which the Secretary essentially would receive everything to which he now
asserts entitlement.
In summary, in the proposed settlement the Secretary accepts a penalty he now agrees is
appropriate and prevails for all three citations on the findings of violation, negligence, and
gravity without a hearing, and obtains future enforcement benefits. We hold that the Secretary
has demonstrated that the settlement is fair, reasonable, appropriate under the facts, and
protective of the public interest. There is no logical reason to deny acceptance of the settlement,
and we reverse the Judge’s decision and approve the settlement.

15

Essentially, the Secretary is stating that he is not making a concession on the penalty
amount but rather is acknowledging that, especially in light of the other assessments, he is
obtaining the appropriate penalty for an alleged violation that could have an uncertain fate at
hearing.

41 FMSHRC Page 605

III.
Conclusion
The Judge abused his discretion in denying the settlement as stated in this decision. For
the foregoing reasons, we reverse the Judge’s decision and approve the settlement.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

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

/s/ William I. Althen
William I. Althen, Commissioner

41 FMSHRC Page 606

Commissioners Jordan and Traynor concurring, in part, and dissenting, in part:
We concur with our colleagues in concluding that the Judge abused his discretion when
he failed to review the terms of the proposed settlement agreement according to the standard
articulated in AmCoal Settlement I, 38 FMSHRC 1972, 1976 (Aug. 2016). We also concur with
their finding that under the proceeding’s current posture, we are not able to review whether the
Secretary has the ability to withdraw a specially-assessed penalty.
Furthermore, we would find that the Judge’s act of sending an email to the parties
threatening denial of their settlement motion as a sanction for refusing to comply with his request
for the inspector’s relevant notes and photographs was an abuse of his discretion. 39 FMSHRC
2052, 2055 (Nov. 2017) (ALJ). While we believe that a Judge has the discretion to request
information from the parties, a Judge must always review the parties’ motion to approve
settlement under the AmCoal Settlement I standard in good faith.
However, we write separately specifically because we disagree with our colleagues’
ultimate conclusion: that the parties have demonstrated that their settlement “is fair, reasonable,
appropriate under the facts, and protective of the public interest.” Slip op. at 12-13.
The motion to settle the proposed penalty of $68,300 for Citation No. 9102710 for a
$4,548 penalty contains minimal factual support beyond Solar Sources’ agreement to accept the
citation as written. In the motion, the Secretary makes the cursory assertion that “the facts do not
support the special assessment and the citation should have been regularly assessed,” but fails to
identify any particular facts or circumstances explaining why the 93% penalty reduction
comports with the AmCoal Settlement I standard. Mot. at 3.
The majority has surmised a variety of reasons as to why, nevertheless, the settlement
might be fair, reasonable, appropriate, and protective of the public interest. For example, the
majority suggests that Solar Sources may have argued to the Judge that the section 77.1101(c)
citation is duplicative of another citation at issue. Slip op. at 11. Yet, the settlement motion is
devoid of any reference to a duplicative argument.
Moreover, the motion does not contain the majority’s nuanced analysis of whether the
requirements of section 77.1101(c) apply to mobile vehicles. Instead, the motion only contains
the generic representation, common among settlement agreements, that the operator does not
believe that the safety standard applies to the equipment at issue.
Section 110(k) of the Mine Act provides that “[n]o proposed penalty which has been
contested before the Commission under section 105(a) shall be compromised, mitigated, or
settled except with the approval of the Commission.” 30 U.S.C. § 820(k). Congress vested this
power within the Commission “[i]n order to ensure penalties serve as an effective enforcement
tool, prevent abuse, and preserve the public interest” and to prevent the unwarranted penalty
compromises that had previously occurred as a result of off-the-record settlement negotiations.
AmCoal Settlement I, 38 FMSHRC at 1976. Section 110(k) and Commission Procedural Rule 31
(governing settlements) require that motions to approve settlement agreements are to be
presented on the record with factual support of the penalty agreed to by the parties.

41 FMSHRC Page 607

We dissent from the majority’s disposition because we believe that the proper disposition
for this proceeding is to vacate the Judge’s decision and remand the proceeding so that he may
properly consider a settlement motion, including both the monetary and non-monetary aspects of
the parties’ agreement. We would advise the parties to revise their motion so that it contains a
reasoned explanation, commensurate with the reduction in penalty, as to why their proposed
settlement complies with the AmCoal Settlement I standard.1
On remand, the parties would be free to avail themselves of the assistance of one of the
Commission’s settlement counsels if they believe that disclosure of any specific information or
argument would prejudice their case or would otherwise undermine the enforcement goals of the
Mine Act.

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

1

For example, if the parties have agreed to reduce the penalty because this is the first
time that the requirements of 30 C.F.R. § 77.1101(c) have been applied to a rock truck, as Solar
Sources represents in its brief to the Commission, that is a fact that should be presented to the
Judge in the settlement motion. R. Br. at 8-9.

41 FMSHRC Page 608

COMMISSION ORDERS

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

November 7, 2019
PETE TARTAGLIA, JR.
v.

Docket No. WEST 2018-362-DM

FREEPORT-MCMORAN BAGDAD, INC.
BEFORE: Rajkovich, Chairman; Jordan, Young, Althen, and Traynor, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (2012) (“Mine Act”). On March 14, 2019, the Commission received a letter from Pete
Tartaglia, Jr., a pro se complainant, essentially requesting review of the Judge’s decision
approving the settlement in this discrimination proceeding. On October 9, 2019, FreeportMcMoRan Bagdad Inc. (“FMBI”) filed a motion for clarification from the Commission
regarding Tartaglia’s filing and the status of this case.
On October 11, 2019, the Commission issued an order instructing Tartaglia to file a
response to FMBI’s motion, if any, by October 22, 2019. On October 16, 2019, Tartaglia filed a
response alleging that counsel for the operator had engaged in fraud. On October 22, 2019,
counsel for FMBI filed an Amended Motion for Sanctions requesting that the Commission strike
Tartaglia’s response from the record and impose sanctions on him.
At the conclusion of the hearing in this proceeding, the parties entered into an agreement
in principle and put the terms of the agreement into the record under seal. 41 FMSHRC 47 (Feb.
2019) (ALJ). However, the record does not contain a written agreement. On January 14, 2019,
after prompting from FMBI, the Judge issued an order directing Tartaglia to inform the Judge
whether he intended to comply with the terms of the settlement or file a post-hearing brief so the
Judge could render a decision on the merits. When no response was filed within the directed time
frame, FMBI filed a motion to enforce the agreement and file the hearing transcript under seal.
Tartaglia responded to FMBI’s motion to enforce indicating that he was not complying with the
settlement agreement and alleging that FMBI was wrongfully taking money from his pay due to
an alleged overpayment in order to satisfy the terms of the agreement in this case.
On February 11, 2019, the Judge issued a decision approving settlement, concluding that
the parties had entered into an enforceable and binding settlement agreement, and rejecting
Tartaglia’s claims of alleged fraud as irrelevant and unrelated to the terms of the settlement and
his section 105(c)(3) complaint. The Judge directed Tartaglia to comply with the terms of the
settlement agreement and dismissed the proceeding. Id.

41 FMSHRC Page 609

We are guided here by the Commission’s decision in Transit Mixed Concrete Co., 13
FMSHRC 175 (Feb. 1991). In that case, the Secretary requested that the Commission amend the
administrative law judge’s decision approving settlement or issue a supplemental decision
approving the parties’ settlement of a citation that was omitted from the original decision
approving settlement. Id. at 175. The Secretary had not filed a timely petition for discretionary
review and the Judge’s decision had become a final order. The Commission construed the
Secretary’s request as a request for relief from a final Commission order and incorporated by
implication the Secretary’s request as a late-filed petition for discretionary review. Relying on
Fed. R. Civ. P. 60(b), the Commission reopened the matter and proceeded to consider the
Secretary’s substantive request for relief. Id. at 176.
Here, the Judge’s jurisdiction over this case terminated when he issued his decision
approving settlement on February 11, 2019. 29 C.F.R. § 2700.69(b). Relief from a Judge’s
decision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not direct
review within 40 days of a decision’s issuance, it becomes a final decision of the Commission.
30 U.S.C. § 823(d)(1). Tartaglia’s request was received by the Commission on March 14, 2019,
after the time for filing a PDR had passed. The Judge’s decision became a final order on March
25, 2019.
The Commission has ruled that relief from a final Commission judgment or order is
available to a party under Fed. R. Civ. P. 60(b). 29 C.F.R. § 2700.1(b) (Federal Rules of Civil
Procedure apply “so far as practicable” in the absence of applicable Commission
rules); e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782 (May 1991). The Commission has held
that in appropriate circumstances, it may, in its discretion, reopen one of its proceedings pursuant
to Fed. R. Civ. P 60(b)(6) upon a proper showing that an underlying settlement agreement
approved by the Commission has been materially breached or repudiated. See Johnson v. Lamar
Mining Co., 10 FMSHRC 506, 508 (Apr. 1988). We deem Tartaglia’s submission as a request
for relief from a final Commission order, in accord with our precedents.

41 FMSHRC Page 610

The parties’ submissions raise issues that are not directly or fully addressed in the current
record, including the validity of the settlement and alleged misconduct. We are unable to
evaluate the merits of these assertions and Tartaglia’s request based on the current record.
Without expressing any view regarding the merits of Tartaglia’s claims, in the interest of justice,
we reopen the proceeding and remand the matter to the Judge, who shall determine whether
relief from the final order is warranted. See Hickory Coal Co., 12 FMSHRC 1201, 1202 (June
1990). The Judge shall also address the question of whether sanctions against any party are
appropriate.
For the foregoing reasons, this case is remanded to the Judge for appropriate proceedings.

/s/ Marco M. Rajkovich, Jr.
Marco M. Rajkovich, Jr., Chairman

/s/ Mary Lu Jordan
Mary Lu Jordan, Commissioner

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

/s/ William I. Althen
William I. Althen, Commissioner

/s/ Arthur R. Traynor, III
Arthur R. Traynor, III, Commissioner

41 FMSHRC Page 611

ADMINISTRATIVE LAW JUDGE DECISIONS

41 FMSHRC Page 612

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

September 4, 2019
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 2015-0074
A.C. No. 46-01968-361667

v.

Docket No. WEVA 2015-0425
A.C. No. 46-01968-371547

THE MONONGALIA COUNTY COAL
COMPANY, successor to
CONSOLIDATION COAL COMPANY,
Respondent.

Docket No. WEVA 2015-0473
A.C. No. 46-01968-373553
Mine: Monongalia County Mine

DECISION APPROVING SETTLEMENT
Before:

Judge Feldman

The captioned civil penalty proceedings are before me based upon Petitions for
Assessment of Civil Penalty filed by the Secretary of Labor (“the Secretary”) pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977, as amended by the Mine
Improvement and New Emergency Response Act of 2006 (“Act,” “Mine Act,” or “New Miner
Act”), 30 U.S.C. § 815(d), against the Respondent, Monongalia County Coal Company
(“Monongalia”). The captioned proceedings concern citations/orders issued for alleged violations
of the Secretary’s mandatory safety standard in 30 C.F.R. § 75.400 that prohibits mine operators
from allowing combustible materials to accumulate in active workings. The Secretary had sought
to rely on these alleged violations of section 75.400 as predicates to demonstrate a
“repeated” flagrant violation under a “broad” analysis. These matters had been scheduled for
hearing on September 10, 2019 in the vicinity of Morgantown, West Virginia. The Secretary has
now filed a joint motion to approve settlement.
The flagrant provisions of section 110(b)(2) of the Mine Act provide:
Violations under this section that are deemed to be flagrant may be assessed a civil
penalty of not more than $220,000. For purposes of the preceding sentence, the term
“flagrant” with respect to a violation means a reckless or repeated failure to make
reasonable efforts to eliminate a known violation of a mandatory health or safety standard
that substantially and proximately caused, or reasonably could have been expected to
cause, death or serious bodily injury.
30 U.S.C. § 820(b)(2) (emphasis added).

41 FMSHRC Page 613

As previously explained by me in a related matter:
In American Coal Company, the Commission crafted two interpretations of the
“repeated” language in section 110(b)(2), one “narrow” and one “broad.” American Coal
Co., 38 FMSHRC 2062 (Aug. 2016). Under the “narrow” interpretation, a violation can
be designated as flagrant if the duration of the violation, without regard to a history of
violations, is sufficient to warrant a “repeated” designation. Id. at 2065. Thus, the
Commission's “narrow” interpretation of the flagrant provisions of the Act concerns a
discrete ongoing violation. Id. In contrast, the Commission articulated that its “broad”
approach involves a recurrent-type violation analysis, i.e., analysis of several discrete yet
similar violations. Id. This approach allows for a “repeated” flagrant violation based on a
relevant history of similar violations.
Secretary of Labor v. Monongalia County Coal Co., 40 FMSHRC 1234, 1235 (July 2018) (ALJ)
(“Monongalia”).
As noted above, the captioned proceedings concern accumulation violations that the
Secretary alleges are predicates under a “broad” analysis to support the Secretary’s alleged
“repeated” flagrant” accumulation violation of section 75.400, cited in Order No. 8059209 in
Docket No. WEVA 2015-0632. Id. The captioned matters were consolidated with Monongalia
and stayed on May 12, 2016, pending a final decision in Secretary of Labor v. Oak Grove
Resources, 38 FMSHRC 957 (May 2016) (ALJ) (“Oak Grove”). The repeated flagrant
designation in Oak Grove was subsequently deleted by an interlocutory order on June 1, 2015.
See Oak Grove, 38 FMSHRC 957, 960; Order Deleting Flagrant Designation, 37 FMSHRC 1312
(ALJ). When neither the interlocutory order nor the decision after hearing was appealed, Oak
Grove became final. Consequently, the stay in Monongalia was lifted on June 14, 2016.
Severance Order and Prehearing Order, 38 FMSHRC 1573 (ALJ). However, the stay of the
captioned predicated proceedings remained in effect. Id.
A hearing in Monongalia was conducted in March 2017. The post-hearing decision found
that the violation was “repeated,” based on a narrow analysis given the discrete nature of the
accumulation violation with regard to its extensiveness and its repeated references in onshift
examination books. However, the flagrant designation in Monongalia was deleted because the
evidence failed to establish that the cited accumulations could be reasonably expected to
proximately cause serious bodily injury or death as contemplated by the flagrant provisions of
section 110(b)(2) of the Act. 40 FMSHRC at 1257. The Secretary’s appeal of Monongalia is
currently before the Commission. Unpublished Direction for Review (Sept. 6 2018).
Following the initial decision on the merits in Monongalia, conference calls were
conducted on October 2, and December 4, 2018 to determine if the stay of the captioned
proceedings should be lifted. The parties expressed their desire to continue the stay pending the
resolution of the Monongalia appeal. The Secretary filed a motion in support of the continuation
of the stay on November 6, 2018, and a supplemental brief in support of the stay on January 16,
2019.

41 FMSHRC Page 614

Given its unopposed nature, a ruling on the parties’ request to continue the stay had been
held in abeyance. However, on May 22, 2019, I denied the Secretary’s Motion to Continue the
Stay in the captioned proceedings, finding no basis for further delaying the disposition of the
104(d) orders that are the subjects of the captioned matters. The stay was lifted, as the finding of
a “repeated” violation based on a “narrow” analysis mooted the Secretary’s reliance on
predicates to support a “broad” analysis.
Despite the fact that the cited accumulation violations in 104(d) citation/order Nos.
8052882, 8052909, and 8059200 are indicative of moderately low gravity in that the violations
pose hazards that are reasonably expected to result in injuries requiring no more than lost
workdays or restricted duty, the Secretary has alleged that the subject predicate violations satisfy
the requirements for a flagrant violation. Monongalia, 40 FMSHRC at 1258 n.14. As noted
below, the parties now agree to settlement terms that reduce the initial total civil penalty from
$120,100.00 to $40,500.00. The reduction in civil penalty is based on modifying the type of
action from 104(d) Order Nos. Nos. 8052910 and 8059203 to 104(a) citations to reflect that the
cited inadequate belt examinations were not attributable to unwarrantable failures, and to reduce
the penalties for all five alleged violations. The reduction in proposed penalty is further
supported by the Secretary’s apparent acknowledgment of the low to moderate gravity with
respect to the accumulation violations specified in citation/order Nos. 8052882, 8052909, and
8059200. The settlement amounts are:
Citation/Order Number
8052882
Subtotal:
8052909
8052910
Subtotal:
8059200
8059203
Subtotal:
TOTAL:

Proposed Penalty
WEVA 2015-0074
$30,200.00
$30,200.00
WEVA 2015-0425
$35,500.00
$12,900.00
$48,400.00
WEVA 2015-0473
$27,900.00
$13,600.00
$41,500.00
$120,100.00

41 FMSHRC Page 615

Settlement Amount
$9,300.00
$9,300.00
$10,400.00
$5,200.00
$15,600.00
$10,400.00
$5,200.00
$15,600.00
$40,500.00

ORDER
I have considered the representations and documentation submitted in this case, and I
conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i)
of the Act. WHEREFORE, the motion for approval of settlement IS GRANTED. IT IS
ORDERED that Order Nos. 8052910 and 8059203 are modified to 104(a) citations. It is
FURTHER ORDERED that the operator pay a penalty of $40,500.00 within 30 days of this
order.1 This case IS DISMISSED upon timely receipt of the civil penalty. In view of the above,
it is ORDERED that the previously scheduled hearing is cancelled.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge

Distribution:
Bertha M. Astorga, U.S. Department of Labor, Office of the Regional Solicitor, The Curtis
Center, Suite 630 East, 170 S. Independence Mall West, Philadelphia, PA 19106
astorga.bertha.m@dol.gov
Artemis D. Vamianakis, Fabian VanCott, 215 South State Street Suite 1200, Salt Lake City,
Utah 84111 avamianakis@fabianvancott.com
Jason W. Hardin, Fabian VanCott, 215 South State Street Suite 1200, Salt Lake City, Utah 84111
jhardin@fabianvancott.com
/adm

1

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO
63179-0390. Please include the Docket No. and A.C. No. noted in the above Caption on the
payment check. Pay online: www.pay.gov

41 FMSHRC Page 616

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9950 / FAX: 202-434-9949

September 10, 2019
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2019-0180
A.C. No. 47-03717-483719

v.
HOFFMAN CONSTRUCTION
COMPANY, INC.,
Respondent.

Mine: Highway 53

DECISION AND ORDER
Appearances:

Suzanne F. Dunne, Esq., Office of the Solicitor, U.S. Department of
Labor, Chicago, Illinois, for the Petitioner
Gary Kaas, Hoffman Construction Company, Inc., Black River Falls,
Wisconsin, for the Respondent

Before:
I.

Judge Rae
INTRODUCTION
A. Statement of the Case

This case is before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor (“the Secretary”) pursuant to section 105(d) of the Federal Mine Safety and
Health Act of 1977, as amended, (“the Mine Act”), 30 U.S.C. § 815(d). At issue is one citation
issued to mine operator Hoffman Construction Company, Inc. (“Hoffman”) under section 104(a)
of the Mine Act.
A hearing was held in La Crosse, Wisconsin on August 6, 2019, at which time testimony
was taken and documentary evidence was submitted. The parties made closing statements in lieu
of filing post-hearing briefs. Tr. 61.1 I have reviewed all of the evidence at length and have cited
to the testimony, exhibits, and arguments I found critical to my analysis and ruling herein
without including a detailed summary of the testimony given by each witness.

1

In this decision, the abbreviation “Tr.” refers to the transcript of the hearing. The
Secretary’s exhibits are numbered Ex. S-1 to S-11. The Respondent’s exhibits are numbered Ex.
R-1 to R-4.

41 FMSHRC Page 617

After consideration of the evidence and observation of the witnesses and assessment of
their credibility, I uphold the section 104(a) citation as written for the reasons set forth below.
B. Stipulations
The parties have stipulated to the following facts:
1.
Hoffman is an “operator” as defined in section 3(d) of the Mine Act, 30 U.S.C. §
803(d), at the mine at which the citation at issue in these proceedings was issued.
2.
Highway 53 mine, MSHA I.D. No. 47-03717, operated by Sand Products, WI,
LLC, is subject to the jurisdiction of the Mine Act.
3.

Hoffman is an operator at the Highway 53 mine, MSHA I.D. No. 47-03717.

4.
At all relevant times, the products of the Highway 53 mine, MSHA I.D. No. 4703717, entered commerce or are products that affect commerce, within the meaning of the Mine
Act, 30 U.S.C. §§ 802(b), 803.
5.

Hoffman is subject to the jurisdiction of the Mine Act, 30 U.S.C. § 801 et seq.

6.
These proceedings are subject to the jurisdiction of the Federal Mine Safety and
Health Review Commission and its designated Administrative Law Judges pursuant to sections
105 and 113 of the Mine Act, 30 U.S.C. §§ 815, 823.
7.
30 C.F.R. § 56.9300(a) is a mandatory health or safety standard as that term is
defined in section 3(l) of the Mine Act, 30 U.S.C. § 802(l).
8.
business.

The assessed penalties, if affirmed, will not impair Hoffman’s ability to remain in

9.
The individual whose signature appears in Block 22 of the citation at issue in
these proceedings was acting in her official capacity and as an authorized representative of the
Secretary when the citation was issued.
10.
A duly authorized representative of the Secretary served the subject citation and
any termination thereof upon the agent of the Respondent at the date and place stated therein, as
required by the Mine Act, and the citation and termination may be admitted into evidence to
establish its issuance.
11.
The exhibits to be offered by Hoffman and the Secretary are stipulated to be
authentic, but no stipulation is made as to their relevance or the truth of the matters asserted
therein.

41 FMSHRC Page 618

12.
The citation contained in Exhibit A attached to the Petition for Assessment of
Penalty for this docket is an authentic copy of the citation at issue in this proceeding with all
appropriate modifications and terminations, if any.
Jt. Ex. 1.
II.

BACKGROUND

The citation at issue in this proceeding (No. 9380863) was written by MSHA inspector
Mindy Meierbachtol2 on September 26, 2018 during a spot inspection of the Highway 53 mine—
a sand mine in Wisconsin where Hoffman is an operator. Tr. 9; Ex. S-1. Meierbachtol was
accompanied on the inspection by Rufus Taylor,3 another MSHA inspector. Tr. 9. During the
inspection, Meierbachtol observed a road without a berm and began taking photographs of the
condition. Tr. 10-12; Ex. S-3, S-4, S-5, S-6. Meierbachtol noted that 75 feet of the road lacked a
berm, and measured the drop off the side of the road as being between 7 and 10 feet in height.
Tr. 13, 19, 36. Additionally, this drop-off contained a slope that Meierbachtol measured as
having a 2-to-1 ratio—meaning that for every 2 feet of horizontal distance from the roadway, the
slope would drop vertically by 1 foot. Tr. 13-14. Meierbachtol issued the citation to Hoffman
shortly after taking measurements and photographs. Subsequently, a site foreman from Hoffman
arranged for a bulldozer to build a berm so that the citation could be terminated. Tr. 55; Ex. S-7,
S-8, R-2. The citation was terminated after approximately 30 to 40 minutes. Tr. 37.
III.

LEGAL PRINCIPLES
A. Significant and Substantial

A significant and substantial violation is a violation “of such nature as could significantly
and substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 30
U.S.C. § 814(d)(1). A violation is properly designated significant and substantial “if, based upon
the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div.,
Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
In Mathies Coal Company, the Commission set forth the following four-part test to
determine whether a violation is properly designated significant and substantial:
In order to establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the Secretary
of Labor must prove: (1) the underlying violation of a mandatory
2

Meierbachtol has been a MSHA inspector for approximately seven years, and also
serves as a special investigator with the agency. Tr. 8, 9. Before becoming an inspector,
Meierbachtol had a detail in the safety division at MSHA headquarters. Tr. 9. Meierbachtol also
holds a master’s degree in safety science, with an emphasis on occupational and aviation safety,
and graduated from the National Mine Academy. Tr. 8.
3

Taylor has been a MSHA employee for approximately four years. Tr. 53.

41 FMSHRC Page 619

safety standard; (2) a discrete safety hazard—that is, a measure of
danger to safety—contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.
6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th
Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988); Consolidation
Coal Co. v. FMSHRC, 824 F.2d 1071, 1075 (D.C. Cir. 1987).
The Commission has stated that the focus of the Mathies analysis “centers on the
interplay between the second and third steps.” Newtown Energy, Inc., 38 FMSHRC 2033, 2037
(Aug. 2016). The second step “addresses the extent to which the violation contributes to a
particular hazard” and “is primarily concerned with likelihood of the occurrence of the hazard
against which a mandatory safety standard is directed.” Id. Thus, the second step requires the
judge to first identify the hazard, which the Commission defines “in terms of the prospective
danger the cited safety standard is intended to prevent,” then determine whether the violation
sufficiently contributed to this hazard by considering “whether, based upon the particular facts
surrounding the violation, there exists a reasonable likelihood of the occurrence of the hazard.”
Id. at 2038. At the third step, the judge must determine whether the occurrence of the hazard
would be reasonably likely to result in injury, assuming the hazard were to occur. Id.
The significant and substantial determination must be based on the particular facts
surrounding the violation at issue. Peabody Coal Co., 17 FMSHRC 508, 511-12 (Apr. 1995); see
also Wolf Run Mining Co., 36 FMSHRC 1951, 1957-59 (Aug. 2014). Evaluation of the
reasonable likelihood of injury should be made assuming “continued normal mining operations,”
U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984), i.e., the evaluation should be made
“in consideration of the length of time that the violative condition existed prior to the citation and
the time it would have existed if normal mining operations had continued.” Black Beauty Coal
Co., 34 FMSHRC 1733, 1740 (Aug. 2012), aff’d sub nom. Peabody Midwest Mining, LLC v.
FMSHRC, 762 F.3d 611 (7th Cir. 2014); Rushton Mining Co., 11 FMSHRC 1432, 1435 (Aug.
1989). The inspector’s judgment is also an important element of the significant and substantial
determination. Wolf Run, 36 FMSHRC at 1959; Mathies, 6 FMSHRC at 5.
B. Gravity
Although the gravity of a violation and the significant and substantial nature of a
violation and are not synonymous, they are frequently based on the same or similar factual
circumstances. Quinland Coals, Inc., 9 FMSHRC 1614, 1622 n.11 (Sept. 1987) (citing 30 U.S.C.
§§ 814(d), 820(i)). The Commission generally expresses gravity as the degree of seriousness of
the violation. Hubb Corp., 22 FMSHRC 606, 609 (May 2000); Consolidation Coal Co., 18
FMSHRC 1541, 1549 (Sept. 1996). The Commission has pointed out that the focus of the gravity
inquiry “is not necessarily on the reasonable likelihood of serious injury, which is the focus of
the [significant and substantial] inquiry, but rather on the effect of the hazard if it occurs.”
Consolidation, 18 FMSHRC at 1550; cf. Harlan Cumberland Coal Co., 12 FMSHRC 134, 14041 (Jan. 1990) (ALJ) (explaining that some violations are serious notwithstanding the likelihood

41 FMSHRC Page 620

of injury, such as a violation of an important safety standard, a violation demonstrating
recidivism or defiance by the operator, or a violation that could compound the effects of other
conditions).
C. Negligence
Negligence is conduct that falls below the standard of care established under the Mine
Act. Under the Secretary’s regulations, an operator is held to a high standard of care. 30 C.F.R. §
100.3(d). Operators must be wary of conditions and practices that could cause injuries, and are
required to take the necessary precautions to prevent or correct those conditions or practices. Id.
The Secretary defines moderate negligence as having occurred in connection with a violation
when “[t]he operator knew or should have known of the violative condition or practice, but there
are mitigating circumstances.” Id. § 100.3(d), Table X. The Commission generally assesses
negligence by considering what actions a reasonably prudent person familiar with the mining
industry, the relevant facts, and the protective purpose of the cited regulation would have taken
under the circumstances. Leeco, Inc., 38 FMSHRC 1634, 1637 (July 2016); see also Brody
Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015) (explaining that Commission ALJs “may
evaluate negligence from the starting point of a traditional negligence analysis” rather than
adhering to the Secretary’s Part 100 definitions); accord Mach Mining, LLC v. Sec’y of Labor,
809 F.3d 1259, 1263-64 (D.C. Cir. 2016).
IV.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Fact of Violation

Citation No. 9380863 states that Hoffman’s failure to provide a berm for approximately
75 feet of mine floor roadway constituted a violation of 30 C.F.R. § 56.9300(a).4 Ex. S-1, R-1.
The fact of violation has been conceded by Respondent and is not at issue in this proceeding. Tr.
7-8, 59-60. The Secretary assessed the violation as significant and substantial, of moderate
negligence, and reasonably likely to result in injuries to one person that cause lost workdays or
restricted duty. Ex. S-1, R-1. The civil penalty proposed by the Secretary is $319.00. Ex. S-11.
B. Significant and Substantial Designation5
Inspector Meierbachtol designated Respondent’s failure to create a berm on the mine
floor road as a significant and substantial violation. Respondent disputes the significant and
substantial designation, yet fails to make any specific arguments negating the elements of the
Mathies test. Tr. 7-8, 57-60, 64-65. I find that this violation meets the four elements of the
4

This regulation mandates that “[b]erms or guardrails shall be provided and maintained
on the banks of roadways where a drop-off exists of sufficient grade or depth to cause a vehicle
to overturn or endanger persons in equipment.” 30 C.F.R. § 56.9300(a).
5

Hoffman raised concerns about the significant and substantial classification being
considered a “willful and blatant disregard for the [safety] standard.” Tr. 64. The Court wants to
make clear that the significant and substantial classification does not denote reckless disregard,
which is instead attributable to an unwarrantable failure to comply with a mandatory standard.

41 FMSHRC Page 621

Mathies test and therefore, I uphold the Secretary’s characterization of the violation as
significant and substantial.
First, Hoffman violated section 56.9300(a), a mandatory safety standard, when it failed to
build a berm on the 75-foot section of road at issue. The parties have stipulated that section
56.9300(a) is a mandatory safety standard. Jt. Ex. 1.
Second, this violation created a measure of danger to safety. Section 56.9300(a) is
intended to prevent vehicles from over-traveling the roadway, overturning, and the resultant
injuries to operators. See Black Beauty Coal Co., 34 FMSHRC at 1741; see also Lakeview Rock
Prods., 33 FMSHRC 2985, 2988-89 (Dec. 2011).
Here, the lack of berm contributes substantially to the over-traveling and overturning
hazard. The large articulating haul trucks6—which tend to be unstable due to their separate cab
and dump-end components—were using the unprotected roadway many times in the days
preceding the inspection.7 Tr. 17, 21, 23, 34. These haul trucks were driving close to the edge of
the roadway, as evidenced by the number of tire tracks Meierbachtol photographed mere feet
from the unprotected drop-off. Tr. 14-16, 33; Ex. S-3, S-6. Further, 75 feet of the roadway lacked
a berm, and the drop-off was between 7 and 10 feet in height with a steep 2-to-1 ratio. Given
these facts, I find the Secretary has shown that the berm violation contributed to the identified
hazard.
With respect to the third and fourth steps of Mathies, there is a reasonable likelihood
that—assuming continued normal mining operations—a serious injury to a haul truck operator
would result if a haul truck over-traveled the roadway. As Meierbachtol noted in her testimony,
the 7 to 10-foot drop-off could reasonably cause a haul truck operator that over-traveled the
roadway to be thrown about the cabin of the truck and receive injuries, including broken bones.
Tr. 20; cf. Black Beauty Coal Co., 34 FMSHRC at 1743 (“[S]ubstantial evidence supports the
judge’s conclusion that if a vehicle veered off the road, it is reasonably likely to result in
injury.”). In sum, I find that the hazard contributed to by the lack of berm was reasonably likely
to result in a reasonably serious injury to haul truck operators.
In conclusion, after considering all the facts presented by the Secretary, including the
height and grade of the drop-off, frequency of use of the unprotected roadway for active mining,
and the size and nature of the articulating haul trucks, I find that the violation satisfies the
Mathies test and was properly designated as significant and substantial.

6

Meierbachtol noted that these trucks could haul approximately 40 tons of material and
had a mid-axle height of 36 inches. Tr. 21, 36-37.
7

Despite Hoffman’s argument that trucks using the roadway were only involved in
construction of the roadway itself, the facts make clear that road construction had finished and
that the haul trucks were using the road in furtherance of active mining operations. Tr. 18, 24,
32-33, 40-41, 44.

41 FMSHRC Page 622

C. Negligence / Gravity
The roadway Meierbachtol cited is part of a circular route used by haul trucks at the
mine. Tr. 54. Empty haul trucks travel via the cited roadway to reach the active mining area,
where the trucks are loaded with material. Tr. 19, 32, 40, 54. After being loaded, the haul trucks
then take another road to the wash plant, where the trucks dump the material. Tr. 19, 32, 38.
Hoffman argued that the road was still under construction and therefore, the berms had
not yet been built. Tr. 24, 39, 44, 48, 50-51. Hoffman raised this—not for the purpose of
contesting the violation—but to underscore its belief that it is a safe company and did not
recklessly endanger its miners. Tr. 23-24, 57-60, 64-65. However, Hoffman also admitted that
active mining had been underway in the days preceding the inspection, and that empty haul
trucks traveled on the roadway at issue multiple times per day up until Meierbachtol issued the
citation. Tr. 17-18, 23, 34, 41-42, 44, 54.
At one point during the hearing, Hoffman stated that the haul trucks using the road during
Meierbachtol’s inspection were actually constructing the berm by bringing in material. Tr. 24,
44-46, 48-51. However, this argument is specious, as both Meierbachtol and Taylor testified that
the trucks were empty and were not carrying material to be used for construction. Tr. 17, 38, 54.
In addition, the bulldozer that was called in by Hoffman’s foreman to build the berm and
terminate the citation was brought in from another location. Tr. 54-56. Hoffman did not bring
material in from another part of the mine to build the berm; instead, the bulldozer pushed
material up from the bottom of the pit to the edge of the roadway. Tr. 55-56; Ex. R-2.
Meierbachtol assessed the violation as involving moderate negligence because there was
significant rainfall in the days preceding the inspection. Tr. 18-19, 22, 34; Ex. S-1. In
Meierbachtol’s opinion, the rain could have made the slope of the drop-off steeper due to the
loose material the road was constructed from. Tr. 18-19. Other mitigating factors are that the
road in question was recently constructed, and that the significant rainfall could have delayed
Hoffman’s efforts towards erecting a berm. Tr. 18, 50-51. These mitigating factors are offset by
Hoffman’s frequent use of the road for active mining purposes over a period of multiple days
when the road did not have a berm. Here, the weight of the mitigating factors is less than the
offset. Accordingly, I find Hoffman’s negligence to be moderate.
With respect to the gravity of the violation, I concur with the Secretary’s assessment and
find that the gravity of this violation is reasonably serious, as the injuries to the vehicle operator
are likely to be contusions, abrasions, and possibly broken bones.

41 FMSHRC Page 623

V.

PENALTY

Section 110(i) of the Mine Act grants the Commission the authority to assess all civil
penalties provided for by the Act. Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1763 (Aug.
2012) (citing 30 U.S.C. § 820(i)). In determining penalty amounts, section 110(i) directs the
Commission to consider:
[T]he operator’s history of previous violations, the appropriateness
of such penalty to the size of the business of the operator charged,
whether the operator was negligent, the effect on the operator’s
ability to continue in business, the gravity of the violation, and the
demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of a violation.
Id.
The Commission and its ALJs are not bound by the penalties proposed by the Secretary,
nor are they governed by MSHA’s Part 100 regulations, although ALJ penalty assessments
“must reflect proper consideration” of the section 110(i) criteria. Am. Coal Co., 38 FMSHRC
1987, 1992-93 (Aug. 2016); see also Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983).
In addition to considering the 110(i) criteria, the judge must provide a sufficient factual basis
upon which the Commission can perform its review function. See Martin Co. Coal Corp., 28
FMSHRC 247, 265-66 (May 2006) (citing Sellersburg, 5 FMSHRC at 292-93). My analysis of
the section 110(i) factors is set forth below.
A. Violation History; Size of Operator; Ability to Continue in Business
The parties have stipulated that the proposed penalties will not affect Hoffman’s ability to
continue in business. Jt. Ex. 1. I find that Hoffman is a medium-sized operator and has a minimal
history of violations (including no previous violations of section 56.9330(a)). Ex. S-10, S-11.
B. Negligence and Gravity
My analysis of the negligence and gravity of the violation is set forth in section IV.C.
C. Good Faith
The Secretary credited Hoffman with good faith in abating the violation at issue in this
case. Ex. S-11. Good faith is also reflected in the portion of the citation that describes the actions
taken to abate the berm violation and in the testimony regarding the operator’s abatement efforts.
Tr. 37, 55; Ex. S-1.

41 FMSHRC Page 624

D. Conclusion
After considering the six statutory penalty criteria, I assess a penalty of $319.00 for the
violation at issue in this case.
ORDER
Hoffman Construction Company, Inc. is hereby ORDERED to pay a total penalty of
$319.00 for the violation at issue in this docket within thirty (30) days of the date of this
Decision and Order.8

/s/ Priscilla M. Rae
Priscilla M. Rae
Administrative Law Judge

Distribution:
Suzanne F. Dunne, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn
Street, Room 844, Chicago, Illinois 60604
Gary Kaas, Hoffman Construction Company, Inc., 123 CTH A, Black River Falls, WI 54615
/smp

8

Payment should be sent to: Mine Safety and Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.

41 FMSHRC Page 625

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE N. W., SUITE 520N
WASHINGTON, D.C. 20004-1710
TELEPHONE NO.: 202-434-9933
TELECOPIER NO.: 202-434-9949

October 11, 2019
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 2018-0169
A.C. No. 36-10045-459561

v.

CONSOL PENNSYLVANIA COAL
COMPANY LLC,
Respondent

Mine: Harvey Mine

DECISION AND ORDER
Appearances: Brian P. Krier, Esq., U.S. Department of Labor, Office of the Regional Solicitor
Philadelphia, Pennsylvania for the Petitioner
James P. McHugh, Esq., Hardy Pence PLLC, Charleston, West Virginia for the
Respondent
Kenneth Polka, CLR, U.S. Department of Labor, MSHA, Mount Pleasant,
Pennsylvania
Before:

Judge William B. Moran

Introduction and preliminary matters
This case is before the Court upon a petition for assessment of a civil penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. §
815(d). This docket involves 11 (eleven) section 104(a) citations, three of which were marked as
“significant and substantial,” and all were designated as involving “moderate negligence.”
No unwarrantable failure claims were made. A hearing was held in Pittsburgh, Pennsylvania on
February 19-20, 2019. The Secretary proposed a total penalty assessment of $4,941.00. For the
reasons which follow, with some modifications, all of the citations are affirmed, and a penalty of
$3,688.00 is assessed.

41 FMSHRC Page 626

Principles of Law
Significant and Substantial
In order to prove a violation is significant and substantial, the Secretary must prove by a
preponderance of the relevant evidence that there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature. See Cement Div.,
Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). A determination that a violation is
significant and substantial requires consideration of the particular facts surrounding the violation.
Texasgulf Inc., 10 FMSHRC 498, 501 (Apr. 1988). The Commission established a four prong
test for significant and substantial violations in Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984).
There, the Commission said that the Secretary of Labor must prove:
(1) The underlying violation of a mandatory safety standard; (2) a discrete safety
hazard – that is, a measure of danger to safety – contributed to by the violation;
(3) a reasonable likelihood that the hazard contributed to will result in an injury;
and, (4) a reasonable likelihood that the injury in question will be of a reasonably
serious nature.
Mathies, 6 FMSHRC at 3-4; accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir.
1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria); see also Consol Pennsylvania Coal Co., 39 FMSHRC 1893, 1899 (Oct. 2017).
With regard to the second element of the Mathies test, the Commission has elaborated that “the
second step requires a determination of whether, based upon the particular facts surrounding the
violation, there exists a reasonable likelihood of the occurrence of the hazard against which the
mandatory safety standard is directed.” Newtown Energy Inc., 38 FMSHRC 2033, 2038 (Aug.
2016) (“Newtown”).
With respect to the third element of the Mathies test, the Commission has stated that
“[t]he correct inquiry under the third element of Mathies is whether the hazard identified under
element two is reasonably likely to cause injury.” Black Beauty Coal Co., 34 FMSHRC 1733,
1742-43 n.13 (Aug. 2012). Finally, the Commission has stated that the evaluation of a significant
and substantial violation should assume continued mining operations. U.S. Steel Mining Co., 7
FMSHRC 1125, 1130 (Aug. 1985).
The Court notes and agrees with the Secretary’s comments regarding S&S that he “does
not need to prove a reasonable likelihood that the violation itself will cause injury, but rather that
there is a reasonable likelihood that the hazard contributed to by the violation will cause an
injury. U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984); Musser Engineering, Inc.
and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010). That “[t]he determination of
“significant and substantial” must be based on the facts existing at the time of issuance and
assuming continued normal mining operations absent abatement. U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574 (July 1984) [and that] [t]he Court cannot infer that the violative
condition will cease. Gatliff Coal Company, 14 FMSHRC 1982, 1986 (Dec. 1992) [and that] the
Court cannot assume that miners would exercise caution: ‘While miners should, of course, work
cautiously, that admonition does not lessen the responsibility of operators, under the Mine Act,

41 FMSHRC Page 627

to prevent unsafe work conditions. Eagle Nest, Inc., 14 FMSRHC 1119, 1123 (July 1992).
Additionally, the presence of redundant safety measures does not militate against an S&S
finding. See Cumberland Coal Res., L.P. v. FMSHRC, 717 F.3d 1020, 1029 (D.C. Cir. 2013)
(‘Because redundant safety measures have nothing to do with the violation, they are irrelevant to
the significant and substantial inquiry.’); Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th
Cir. 1995); Amax Coal Co., 19 FMSHRC 846, 850 (May 1997) (same); Maple Creek Mining,
Inc., 22 FMSHRC 742 (2000). Finally, the opinion of an experienced MSHA inspector that a
violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC
1275, 1278-79 (Dec. 1998); Buck Creek Coal, Inc., v. MSHA, 52 F.3d 133, 135-36 (7th Cir.
1995).” Sec. Br. at 4-5.
Penalty Assessments
In assessing civil monetary penalties, Section 110(i) of the Act requires that the
Commission consider the six statutory penalty criteria:
[1] the operator’s history of previous violations, [2] the appropriateness of such
penalty to the size of the business of the operator charged, [3] whether the
operator was negligent,1 [4] the effect on the operator’s ability to continue in
business, [5] the gravity of the violation, and [6] the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation.
30 U.S.C. § 820(i).
1

The Secretary takes note of 29 C.F.R. § 100.3(d) for the proposition that moderate
negligence is where “the operator knew or should have known of the violative condition or
practice, but there are mitigating circumstances.” Sec. Br. at 6. There is no dispute about the
general test for negligence. Rather the dispute is whether there were mitigating circumstances.
That said, the Commission states that an operator is negligent if it fails to meet the
requisite standard of care in adhering to the standards set forth in the Mine Act and its associated
regulations. Brody Mining LLC, 37 FMSHRC 1687, 1702 (Aug. 2015). Commission Judges,
when determining negligence, are asked to consider “what actions would have been taken under
the same circumstances by a reasonably prudent person familiar with the mining industry, the
relevant facts, and the protective purpose of the regulation.” Jim Walter Resources, 36 FMSHRC
1972, 1975 (Aug. 2014). … The Commission and its judges are not required to apply the 30
C.F.R. Part 100 regulations that govern the MSHA's determinations. Newtown, 38 FMSHRC at
2048, citing Brody at 1701-03. Therefore, the Commission's judges may consider the “totality of
the circumstances” in assessing the operator’s negligence for a given violation. Brody, at 1702;
Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1264 (D.C. Cir 2016).
The Commission has described ordinary negligence as “inadvertent,” “thoughtless,” or
“inattentive” conduct. Emery Mining Corp., 9 FMSHRC 1997, 2001, 2004 (Dec. 1987), while
high negligence is described by the Commission as “an aggravated lack of care that is more than
ordinary negligence.” Newtown, at 2049, citing Topper Coal Co., 20 FMSHRC 344, 350 (Apr.
1998), citing Eastern Associated Coal Corp., 13 FMSHRC 178, 187 (Feb. 1991).

41 FMSHRC Page 628

Per the parties’ stipulations, payment of the total proposed penalty of $4,941.00 in this
matter will not affect the Respondent's ability to continue in business. Tr. 10. Also, for proposed
Stipulation No. 10, MSHA's data retrieval system, accurately assessed the size of the
Respondent's production tons or hours worked per year, the size and production tons or hours
worked per year of the mine, the total number of assessed violations for the time period listed
and the total number of inspection days for the time periods listed therein. For proposed
Stipulation No. 11, Exhibit A of the Secretary's petition for the assessment of civil penalty
accurately sets forth the size of Respondent in production tons or hours worked per year; the size
and productions tons or hours worked per year of the mine; the total number of assessed
violations for the time period listed and the total number of inspection days for the time period
listed therein. Tr. 10-11. However, Respondent’s Counsel informed that regarding proposed
stipulations 10 and 11, the parties only agreed that the R-17 is a certified version of that report
and the Respondent wants that document admitted in lieu of Stipulations 10 and 11. Further, as
to Stipulation No. 8, Respondent points out that for some of the citations in issue, it disputes their
validity and therefore it seeks to have those vacated. Tr. 11-12.2
The Court considered each of the stipulations, together with the Respondent’s issues
limiting them, in factoring the operator’s history of previous violations, and the appropriateness
of such penalty to the size of the business of the operator charged. Consol did not address the
proposed penalties in its brief since each of the Secretary’s proposed penalties were consistent
with the Penalty Conversion Table in 30 CFR § 100.3(g). Consol simply requests that the Court
apply this table in determining the appropriate penalties. R’s Response Brief at 23. The Court
notes that the Penalty conversion table, Table XIV, found at 30 CFR § 100.3(g), provides that
“[t]he penalty conversion table is used to convert the total penalty points to a dollar amount.”
Among the parties’ stipulations were the following: Payment of the total proposed
penalty of $4,941.00 in this matter will not affect the Respondent’s ability to continue in
business, Petitioner’s Exhibit P-17, the assessed violation history report was admitted and was
considered in the Court’s penalty determinations. The Court concludes that the history of
violations did not materially affect the ultimate penalty calculations in either direction: the
mine’s history of violations was not so egregious as to merit steeper penalties relative to
MSHA’s proposals, but also not so spotless as to merit decreased penalties relative to MSHA’s
proposals.
The size of the mine and its controller also supports the proposed assessment.
This criterion must take into account not only the size of the operator, but the size and resources
of any controlling company to ensure that a penalty has the financial impact to deter future
violations. See Thunder Basin, 19 FMSHRC 1495, 1505 (1997). “Stiffer penalties against larger
mines are necessary…to ensure that operators of mines with more complex management
structures would notice and correct violations.” Coal Employ. Proj. v. Dole, 889 F.2d 1127, 1135
(D.C. Cir. 1989), citing 42 Fed. Reg. 23,515 (May 30, 1978) (“penalties must be such as to
encourage management at all levels to respond positively to health and safety concerns”).
The penalties must be significant enough to ensure that Respondent’s management responds
positively to the safety concerns posed by the violations.” Gravity and negligence are among the
2

The Court pointed out, whether upheld or vacated, the issuance of the citations is the
subject addressed by the stipulation. Tr. 12.

41 FMSHRC Page 629

most important factors to be considered in the penalty criteria. Lopke Quarries, Inc., 23
FMSHRC 705, 713 (July 2001). Sec. Br. at 7.
As the Commission has noted, “Administrative Law Judges are accorded broad discretion
in assessing civil penalties under the Mine Act.” Westmoreland Coal Co., 8 FMSHRC 491, 492
(Apr. 1986). A Commission Judge’s penalty assessment is reviewed under an abuse of discretion
standard. Douglas R. Rushford Trucking, 22 FMSHRC 598, 601 (May 2000); see also Knight
Hawk Coal, LLC, 38 FMSHRC 2361, 2373 (Sept. 2016).
That said, the Court recognizes that there are two important considerations that must be
evaluated; the Secretary’s burden to provide sufficient evidence to support the proposed
assessment; and the Court’s obligation to explain the basis for any substantial divergence from
the proposed amount. Thus, the Commission has noted that:
[The] Secretary [ ] does bear the ‘burden’ before the Commission of providing
evidence sufficient in the Judge’s discretionary opinion to support the proposed
assessment under the penalty criteria [and that] [w]hen a violation is specially
assessed that obligation may be considerable. [On the other hand] the Secretary’s
proposed penalty cannot be glided over, as the Commission also stated, ‘Judges
must explain any substantial divergence between the penalty proposed by MSHA
and the penalty assessed by the Judge. … If a sufficient explanation for the
divergence is not provided, the credibility of the administrative scheme providing
for the increase or lowering of penalties after contest may be jeopardized by an
appearance of arbitrariness.
The American Coal Co., 38 FMSHRC 1987, 1993-94 (Aug. 2016), citing Sellersburg Stone Co.,
5 FMSHRC 287, 293 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984).
The Court agrees with the Secretary’s observation about penalties that “[d]epending on
the circumstances of the violation, some of the six criteria may be weighed more heavily than the
other criteria. Sec. Br. at 6, citing Musser Engineering & PBS Coals, 32 FMSHRC 1257, 1289
(2010); Spartan Mining, 30 FMSHRC 699, 725 (2008).
Alleged Violations
As the citations in this matter were issued for violations under a number of different
safety standards with a number of different elements the Secretary is required to prove, the
Court’s decision is organized by citation.

41 FMSHRC Page 630

Citation No. 9076610
Citation No. 9076610 alleges a violation of 30 C.F.R. § 75.220(a)(1), for the absence of
reflectorized warning devices placed immediately outby unsupported roof. The Respondent
admits the violation but seeks to have the citation listed as non-S&S, unlikely and low
negligence.
MSHA inspector James Baker was the first witness for the Secretary. Tr. 14. He has some
20 years of coal mining experience and has been an inspector for about five years.
Tr. 15-16. In January 2018 he was at the Respondent’s mine to perform an E02 spot inspection.3
Baker identified Citation No. 9076610, Ex. P-1, as the citation he issued on January 4, 2018 for
an alleged violation of 30 C.F.R. § 75.220(a)(1), the mine’s roof control plan.4 In the No. 2 entry,
the inspector noted there were no reflectorized signs to warn of unsupported roof.
Tr. 18-19. This entry was about 16 feet wide with an 8½ to 9 foot roof height. Tr. 19.
While there was no mining equipment in the entry, no reflective signs were present. The
inspector added that
[t]he top was in [ ] very poor shape, lots of large rock … [had fallen, which he
estimated to be] the size of large garbage cans that fell all the way to the last roof
support, the last strap, that fell there. And they meshed their top of the plastic
screen called Tensar,5 but it was rolled up into a one-foot diameter … that day.
Id.
Later, the inspector described [the fallen rock] size as two to three feet in height and
width. Tr. 19-20. The material which had fallen was a mix of slate, coal and rock. Tr. 21.
This material was inby unsupported roof. Tr. 22. There was plastic mesh on the roof which was
rolled up to the last roof strap. He informed that the mesh material is rolled out as they install
roof bolts and straps. The inspector’s notes included a sketch of the rolled up material.

3

Because the mine liberates more than one million cubic feet of methane in a 24 hour
period, MSHA does a spot inspection every five days. Tr. 17.
4

The Respondent stated that it was not contesting the fact of violation. The Court advised
that by conceding the fact of violation, it understood that the Respondent was contending “that
the injury/illness, the likelihood would be something … less than reasonably likely because of
these other indicia given that the reflectors were not there. People would have been alerted and,
therefore, reduced the likelihood, and the same would be true as to the S&S element.” Tr. 52-53.
Respondent did not disagree with the Court’s characterization.
5

The Tensar material is made out of plastic and it is part of the roof support. Tr. 40. It is
analogous to the plastic orange silt fences one sees at construction sites. Tr. 41. As such, it does
not provide the primary support. That primary support comes from the straps and the roof bolts.
Id.

41 FMSHRC Page 631

The standard cited by the inspector, under the mine’s roof control plan, requires
reflectorized signs in all entries to the face for unsupported roof. Tr. 24. The purpose of the
reflectorized signs is keep miners from going under the unsupported roof. Id. Thus, the signs
provide a warning to the miners. A sign is required on each side of the entry. Based on the
material he saw on the ground, if a miner were in the unsupported area and something were to
fall, any injury “could be real bad.” Tr. 26-28. Characterizing the potential injury as “serious,”
the inspector stated that it could result in a broken neck or a broken back. Tr. 28. In addition to
miners, a mine examiner would also be exposed to this risk during the onshift and preshift
exams. Id.
As for the roll of material that was hanging down from the roof, the inspector did not
believe that would serve to warn miners in the manner of the reflective sign. Tr. 29. The mesh
does not have a reflective quality to it and, the mesh was two to three feet above his head.
In contrast, the reflectorized signs reflect brightly off a miner’s cap lamp. Id. The inspector also
observed a “DTI,” which refers to date, time, and initials, in this area. The DTI revealed that the
area had been onshifted some 47 minutes before the inspector found the problem. Tr. 30.
He marked the negligence as moderate, informing that he reserved “high” negligence for
instances when the foreman knew of the condition but took no action. Not finding such a
situation, he did not find a basis for designating high negligence in this instance.
Upon cross-examination, the inspector informed that a number of people might have the
task of hanging the reflectors and this would include the roof bolters. The Tensar mesh material
is continuously unrolled as mining progresses, in that one puts up a strap,6 then roof bolting
follows, then four feet or so of the mesh is unrolled. Tr. 32. The inspector acknowledged that,
using his cap lamp, he was able to see where the wedge cut7 started, and where the ventilation
curtain ended, with the latter ending at the last strap. Tr. 33. In terms of the debris he saw, the
inspector stated that [i]t fell all the way to the last supported strap, and therefore it could be seen.
From the last row of supported bolts and from the last strap, the material fell all the way to that
point and to the wedge cut.” Tr. 34. He observed those conditions when he got to the last strap,
as he got through the curtain. Id. He agreed that in order to proceed further, that is, beyond the
last strap, one would have to walk over the pile of coal and rock. Tr. 35. As some pieces were
two to three feet in height, one would have to go over that pile. Id. The inspector did not agree
with the Respondent’s assertion that the Tensar material was hanging down some two to three
feet, asserting instead that it was hanging down about one foot from the roof. Tr. 36. For the
mesh itself to have acted as a barrier, he stated, it would need to hang down to chest level, which
it was not. Id. Had it been that low, he allowed that it would have changed his S&S designation
to non-S&S. Id.

6

The straps are made of steel. They are about 11 feet in length and are installed with roof
jacks when the roof bolting is being done. The roof bolts go through the straps, holding them up,
so the two work in tandem. Tr. 42-44.
7

A wedge cut is made from the last row of bolts and it gradually decreases down to the
floor. Tr. 38. Typically, such a cut will be from 12 to 14 feet, from the last strap to the toe of the
wedge. Id.

41 FMSHRC Page 632

The inspector agreed that, speaking for himself, as he was cognizant of the location
where the Tensar material stopped, where the ventilation curtain was, and since he realized that
upon walking through that curtain, he was never personally in any danger of walking under
unsupported top. Tr. 39. The inspector could not recall if the debris he observed extended beyond
the last permanent support, where the Tensar was rolled up, but he could recall that it was to the
last strap. Tr. 45.
On redirect, it was brought out that the roof control plan does not allow the mine to use
mesh in place of the reflectorized signs, nor that the curtain may serve as an alternative to signal
where the last row of supported roof is located. Tr. 46. It was also noted that in the inspector’s
significant experience with roof bolting and with roof support, that there is no way to predict
when a roof may fall. Tr. 48. In this particular instance, based on the timing of his discovery of
the debris, the hazard was then limited to additional rock falling, though the particular hazard
would be that such material would roll down and strike a miner. Tr. 49. As the inspector noted,
though he saw the issue, a miner, less experienced, working in the cited area might not pick up
on the hazard, because of the lack of the signs. Tr. 49-50.
In its defense to this citation, the Respondent called Albert Stein. Mr. Stein is a safety
inspector for the Respondent. He has been employed with the mine for seven years, with six of
those in the safety department. Tr. 391-92. Directed to the subject Citation, No. 9076610, Ex. P1, involving the absence of a reflective sign, he affirmed that he was with the inspector when this
citation was issued, along with Mr. Roman, Stein’s boss. Tr. 393-95. Admitting that when they
approached they saw there was no reflective sign at the face of the No. 2 entry, he added that
there was a pile of rock and coal from the last strap and there was mesh hanging down.
Tr. 394; Ex. R-1. Thus, two points were being asserted by the witness: the mesh was hanging
some two to three down from the roof and there was a pile of material on the mine floor at that
location. As for the mesh, Stein stated that its presence was obvious. Tr. 398. The shear on the
continuous miner can only go ten feet past the last strap. Id. The ATRS system at the last strap
holds the strap up against the roof, allowing the bolter to drill his hole and bolt. From that point
the mesh will drop. Tr. 399. Stein’s point was that there was no trouble seeing the location of the
last row of supported top. Tr. 400. According to him, the roof height was about eight feet with
the mesh hanging down from the roof some two to three feet. Id. As noted, combined with that
was a pile of rock or coal on the floor, which Stein also described as two to three feet in height,
characterizing it as “a little hump.” Tr. 401. There was also the ventilation curtain, which went
up to the last strap. Tr. 402. Stein did not believe that the gravity should be designated as
“reasonably likely” given the strap and the pile on the floor, and as such they would not have
walked past the last row. Tr. 401.
Stein did not agree that only a reflective sign meets the standard, as a barrier also
suffices. Tr. 403. However he conceded that mesh is not used to protect miners from roof falls or
debris, nor is it used to protect miners from going into unsupported areas. Tr. 403. The same is
true for ventilation curtains – they are not used to prevent miners from entering unsupported
areas. Further, he agreed that the pile on the floor came from material that had fallen from the
roof. Tr. 403. As for the witness’ assertion that the mesh came down some two to three feet from
the roof, he agreed this was not measured. Tr. 404. Stein made notes about the condition, but he
admitted that those notes made no mention of the pile of debris from the roof. Also, the diagram

41 FMSHRC Page 633

in Ex. R-2 was not drawn by him, but rather by the engineering department. Yet that person from
engineering was not underground with the inspector at the time of the citation’s issuance. Tr.
405. Additionally, Stein agreed that the pile of debris was under unsupported roof. Id. Further,
Stein conceded that more debris could fall on the pile and that such material could roll off the
pile and strike a miner. Tr. 406.
Parties’ Arguments as to Citation No. 9076610
Respondent, while admitting the violation, contends that this citation, No. 9076610,
should be reduced to non-significant and substantial (non-S&S) and low negligence.
R’s Br. at 1. Its non-S&S argument is direct – asserting that “the physical barrier indicating the
location of the last row of permanent roof support was present thereby making it unlikely an
injury would result from the cited condition.” Id. at 1-2.8
Respondent admits that 30 C.F.R. § 75.220(a)(1) requires a mine operator to develop and
follow a roof control plan approved by the District Manager and that roof control plan provisions
are enforceable as mandatory standards. However, Respondent contends that when affirming an
S&S designation for failure to hang reflective warning signs, judges typically find that the
absence of reflectors would cause a miner to think it’s safe to proceed under unsupported roof
and, being so lulled, the second S&S factor under Mathies would be met. Citing Independence
Coal Co., 26 FMSHRC 520, 531 (Jun. 2004) (ALJ); Remington, LLC., 36 FMSHRC 491, 502
(Feb. 2014) (ALJ); and Prospect Mining & Development. Co., Inc., 39 FMSHRC 49, 56-57 (Jan.
2017) (ALJ), Respondent maintains that in those cases, unlike in this matter, each judge found
that the miners were trained to rely solely on the presence of reflectors to indicate the location of
the unsupported roof. It asserts that those judges reasoned that, without the reflectors, or any
other warning devices being present to identify the location of unsupported roof, it was likely
that a miner would believe that it was safe to travel underneath an unsupported area.
Accordingly, Respondent contends that “the Secretary has failed to meet his burden of
showing that the absence of reflectors would cause a miner to think it was safe to travel inby
unsupported roof under normal mining conditions or that an injury was reasonably likely to
occur,” and that these are necessary elements to show that the violation was S&S. R’s Br. at 29.
In support of this, Respondent notes that it is undisputed that the “mesh was hanging down from
the last row of permanent roof support,” and from that Respondent contends the mesh indicated
the location of unsupported roof inby that mesh. Id. Respondent claims the mesh “also served as
a physical barrier to prevent miners from traveling inby that location,” adding that the inspector
also conceded the mesh would serve as a physical barrier. Id. Further, as the hanging of roof
mesh is part of Consol’s regular mining practice, the miners know its presence signals the start of
unsupported roof inby that point. Id. Coupled with those contentions, Consol adds that the mesh
was “clearly visible” so that it was “extremely unlikely” a miner would proceed inby the mesh.
Id. at 29-30.
8

In its Response Brief, Consol argues that the Secretary has misinterpreted the test for
determining if a violation is significant and substantial. R’s Response at 1-3. The Court addresses
the S&S issue both generally, infra, as well as particularly, later, in its discussion for this
admitted violation.

41 FMSHRC Page 634

Consol separately contends that the negligence level should be “low” due to considerable
mitigating circumstances. First, Inspector Baker admitted that he did not know when the area
was last mined or how long the condition had existed and as such the condition could have
happened since the last examination of the area and the Secretary has failed to prove otherwise.
Second, consistent with its normal mining practices, Consol did hang down roof mesh to serve as
both an indication of the location of unsupported roof and a physical barrier to traveling inby that
location. Tr. 225. Therefore, the evidence of considerable mitigating circumstances should
reduce the negligence designation to “Low.” Id. at 31.
The Secretary notes that the Respondent does not contest the fact of violation. Tr. 52,
402. Regarding the two disputed issues, regarding the S&S designation, the Secretary observes
that:
[t]his violation is reasonably likely to result in a reasonably serious injury
associated with additional pieces of the rock and coal from the roof falling and
striking a miner who was not alerted to the serious hazard of unsupported mine
roof due to the lack of reflectorized signs in the entry. This violation would affect
one person. Reflectorized signs are used as a visual signal to alert miners of
unsupported mine roof and prevent them from traveling underneath it. (R. at 2425). A miner’s helmet lamp reflects brightly off the reflectorized signs. (R. at 29).
Given the pile of roof pieces laying across the entry, additional pieces of mine
roof could fall and hit the pile, striking a nearby miner. (R. at 26-27, 37, 49-50).
An examiner would be near this hazard twice per shift during the pre-shift and onshift examinations. (R. at 28).
Sec. Br. at 5.
Addressing the degree of negligence, the Secretary comments:
Inspector Baker observed section foreman Craig Williamson’s dates-times-initials
(“DTIs”) indicating that he had performed his on-shift examination of the area 47
minutes earlier. … Due to the section foreman on-shifting the area 47 minutes
prior, the operator either knew or should have known that there were no
reflectorized signs indicating unsupported mine roof. Although Respondent will
likely argue that the roof mesh would be a physical barrier preventing a miner
from wandering inby the last roof support and the ventilation curtains would act
as substitute, neither are designed or used for the same purpose as the
reflectorized signs, and neither meet the requirements of the roof control plan. …
Further, the roll measured only one foot from the mine roof, which is at least
eight-feet high. Respondent has been cited at Harvey Mine for violating the roof
control plan six times in the two years preceding the issuance of this citation.
(Exhibit P-1). Therefore, Respondent was moderately negligent.
Sec. Br.. at 6. On the basis of its foregoing contentions, the Secretary asserts that the proposed
penalty of $638.00 should be imposed.

41 FMSHRC Page 635

Analysis of Citation No. 9076610
The essential problem with the Respondent’s assertion that the admitted violation was not
significant and substantial and that the negligence should be deemed less than moderate is that
the facts do not support those claims.
Regarding the S&S issue, as noted, the violation was conceded, thereby meeting the first
Mathies element. The measure of danger to safety, contributed to by the violation, that is,
whether, based upon the particular facts surrounding the violation, there exists a reasonable
likelihood of the occurrence of the hazard against which the mandatory safety standard is
directed was also established. This determination is supported by a number of findings.
First, the mesh is not the equivalent of the reflectorized sign, and therefore did not serve
the same purpose as such a sign. Additionally, the Court finds that the mesh did not extend as far
down as Respondent’s witness asserted and while one cannot be precise about how far it did
extend down from the roof, as it was not measured, it still did not serve as a warning.9 That is not
the purpose of the mesh in any event – it is instead part of the roof control plan, with the amount
hanging down to be extended and employed later together with the roof bolting.
Nor does the roof control plan provide that hanging mesh is an alternative to the reflective signs.
Further, there certainly was no testimony that the mine had instructed its employees that mesh
extending down from the roof was to alert them that unsupported roof was beyond that point.
The other ALJ decisions cited by Respondent for this proposition are not precedential but may be
relied upon in circumstances where the underlying logic is persuasive to another court. However,
this Court does not subscribe to the idea that a violation is S&S only where miners are trained to
rely solely upon the presence of warning devices.
The Court has a different take on the pile of rock and coal that had fallen from the roof,
just beyond the hanging mesh. Rather than construing that rubble and the mesh as warning
barriers, the Court views the former as demonstrating the importance of the reflective sign and
the material which had fallen as a real life demonstration that roof did fall, thus underscoring the
importance of the sign. The condition of fallen material graphically illustrates the danger
involved. In this case, the roof in fact fell and so it is with some pluck that the Respondent
should point to that as diminishing the S&S determination. Mesh is not an alternative to
reflectors. The particular hazard would be that such material would roll down and strike a mine.
The Court does not agree with Respondent Stein’s view that a barrier meets the standard.
Viewing the violation in the context of continued normal mining operations, there was no
testimony that reflectors were routinely installed, nor were other areas identified in the mine that
had such reflectors and thereby there could be no suggestion that the admitted violation was an
9

Though it would not alter the outcome, the Court does not accept the Respondent’s
contention that the mesh extended some two to three feet down from the mine roof. The Court
finds credible the inspector’s testimony that the mesh would have to hang down much further to
pose any putative warning to entry in areas with unsupported roofs. Tr. 36. An exact
determination of the extent to which the mesh extended down cannot be made on this record, but
that is not a critical fact in any event. That is, short of the mesh creating a virtual mesh wall, the
mesh would not be a factor in any S&S analysis. Restated, absent a mesh of such a wall-like
extent, mesh does not operate as a factor in the S&S determination.

41 FMSHRC Page 636

aberration. Finally, even if the Court were inclined to conclude that the mesh was some sort of
alternative warning sign to miners that unsupported roof was present, such a system constitutes a
redundant safety measure, as it is not proscribed in the roof control plan for purposes of warning
miners of supported roof locations. The D.C. Circuit has rejected the notion that other conditions,
such as the presence of the mesh and the roof material which had fallen, should be weighed in
making the S&S evaluation. As the D.C. Circuit explained:
[T]his court again interpreted the statutory text [of 30 U.S.C. § 814(d)(1)] to focus
on the ‘nature’ of ‘the violation’ rather than any surrounding circumstances. More
to the point, the court held that ‘consideration of redundant safety measures,’ —
that is, ‘preventative measures that would have rendered both injuries from an
emergency and the occurrence of an emergency in the first place less likely’—‘is
inconsistent with language of [section] 814(d)(1).’
Sec’y of Labor, Mine Safety & Health Admin. v. Consolidation Coal Co, 895 F.3d 113, 118-19
(D.C. Cir. 2018), citing Cumberland Coal Resources, LP v. Federal Mine Safety & Health
Review Com’n. 717 F.3d 1020 (D.C. Cir. 2013):
As we have explained, the focus of the significant and substantial inquiry is the
nature of the violation. By focusing the decisionmaker’s attention on ‘such
violation’ and its ‘nature,’ Congress has plainly excluded consideration of
surrounding conditions that do not violate health and safety standards. Because
redundant safety measures have nothing to do with the violation, they are
irrelevant to the significant and substantial inquiry.
Id. at 1028-29.
Thus, the Court concludes that the absence of the reflectors presented a discrete safety
hazard—that is, a measure of danger to safety—contributed to by the violation, by the absence of
a genuine warning that unsupported roof was ahead.
As for the third element, whether the hazard identified under element two is reasonably
likely to cause injury, there are two observations to be made. One, across the board, it can be said
that roof falls are a continuing threat in underground mining. The other is that in this instance the
roof did indeed fall. A roof fall, it can be said without qualification, is reasonably likely to cause
injury.
Similarly, speaking to the fourth element, it is a given that any roof fall presents a
reasonable likelihood that the injury in question will be of a reasonably serious nature.
Accordingly, the Court finds that the violation was S&S.

41 FMSHRC Page 637

Turning to the issue of negligence and the Respondent’s claim that there were
considerable mitigating circumstances, the Court does not find such circumstances.
Essentially Consol relies upon the same considerations it marshalled for its non-S&S contention
by applying them to its “low negligence” argument. The Court does not consider either the mesh
or the material which fell to be mitigating factors. Neither was employed to mitigate the hazard.
The mesh stopped where it was located because the mine roof support process stopped there.
The material which fell from the roof, fell, which is to say that event, a roof fall, can hardly be
considered mitigating. Further, the DTI for the on-shift, occurring less than an hour earlier, and
not noting the condition does not advance the Respondent’s diminished negligence contention.
Certainly, the mesh hanging down, which was in that condition only because it was awaiting its
implementation once the process of supporting the roof began, cannot constitute mitigation. That
rock had fallen, creating an impediment, but not a barrier, to proceeding under the unsupported
roof cannot be deemed to be mitigation. The mine did not cause the roof to fall in order to act as
a barrier. It simply fell, the very hazard that brought about the requirement for reflectorized signs
to be installed by effectively announcing – “Caution unsupported roof ahead.”
While it is true that the inspector could not state how long the condition had existed, it is
uncontested that the area was onshifted less than an hour before the violation was discovered.
Accordingly, the Court finds no mitigation and upholds the determination of moderate
negligence, with the Court finding that the Operator either knew or should have known of the
dangerous condition.10
As noted, this citation was marked as S&S, with the gravity as “reasonably likely,”
resulting lost workdays and the negligence denominated as moderate, each of which
determinations by the inspector, the Court upholds. The other penalty factors have been factored
into the penalty determination for this violation, and upon considering all of them and not finding
any mitigating circumstances as to the gravity and negligence of the violation, the Court
concludes that the proposed penalty of $638.00 should be and is imposed.
Citation No. 9077085
Citation No. 9077085 alleged a violation of 30 C.F.R. § 75.1725(a); the citation states
that the winch cable on the Caterpillar duckbill battery scoop was severely damaged.
The Respondent seeks to have the citation listed as non-S&S, unlikely and low negligence.
MSHA underground coal mine inspector Bryan Yates performed an E01 (i.e. regular)
underground inspection at Consol Penn’s Harvey Mine on January 6, 2018. Tr. 60-61.
He issued Citation No. 9077085 that day, which alleges a violation of 30 C.F.R. § 75.1725(a).
Tr. 62, Ex. P-2. That standard requires that 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.

10

30 C.F.R. § 100.3(d).

41 FMSHRC Page 638

Involved was a Caterpillar 630 duck bill battery operated scoop with a defective winch
cable. Tr. 63. The cable is also referred to as a “rope.”11 Tr. 66. The steel cable was “in the front
middle beside the operator and behind the scoop bucket” and it is on a spool. Tr. 64.
The winch for the cable, or “rope,” faces outward towards the front of the scoop.” Tr. 65.
“The cable is used to pull — to move longwall equipment components. It's used to move shields,
which shields weigh around … — common shields weigh around 22 tons, … [a]t the time, they
were installing longwall equipment across from where the scoop was located.” Tr. 65.
The inspector found the cable to “be broken and frayed …[and he saw] that it was in
pretty bad condition.” Id. The cable itself had “a whole broken strand on it,[with] several kinks
and frays in [it]. … [t]he broken strands were frayed out on the ends … making it stick out.” Id.
The cited cable was wrapped around the reel, or “spool,” when Yates observed it. The
cable attachment point, that is, where the cable is supposed to be attached to the spool, was
broken. Tr. 67-68 and photographs of the broken strand on the cable, Exhibits P-3A-G.
The scoop was not out of service when the condition was cited. Tr. 69. In addition to the broken
strand, there was evidence of other breaks and kinks and where the cable was “bird caged.”12
There, the cable gets twisted and spewed out. Tr. 69-70. Per Exhibit P-3D, the inspector noted
the termination end for the cable where it should be welded on the spool and he also called
attention to a grooved out area on the spool. Tr. 72. Ex. P-3E, another photo, shows the cable
before any corrective action was taken. Per photo 3G, the termination point was not attached to
the scoop. Ex. P-3G. Tr. 73.
The cable was used in this defective condition, as the inspector noted that the lines on the
housing are “indications that that cable has come on and off several times with those broken
frays, that it's rubbed the bucket, so you can tell it has been used in this condition.” Tr. 74. As
the frayed area comes off or is reeled up, those frayed areas rub on the inside of the bucket,
creating the lines. Id. Again, the hazard is that the cable can break and injure people if that
occurs. Tr. 75. A broken cable, being used to pull heavy components puts tension on the cable
and if the cable breaks a whiplash effect can occur. Tr. 76.
11

Inspector Yates has had experience in his career working with cables. In making a
visual inspection of such a cable, one looks at a lay of it. A lay of the cable is one complete
revolution of the strand. Tr. 66. Yates also knew of an accident involving a cable which broke
and struck a miner, rendering him unconscious and causing fractures in his face. Tr. 67.
12

Just as it sounds, by “bird caging” the inspector meant the strands appeared like a bird
cage. Tr. 70. Bird caging, the inspector later explained, is
so bad because it takes the layout of cable, the strength, and it exposes the inner to
squeezing or pinching. So if the inside of that cable is bird caged and is sticking
up and you start putting tension on it, it's going damage the wires and stuff that's
inside the core of the cable.
Tr. 93. The inspector stated that in the photograph, Ex. P-3C, one can see the cable “starting to
bird cage some and come open. You can see the inner inside of the cable, some of the inner
layers.” Tr. 95.

41 FMSHRC Page 639

The inspector believed that if the cable were to break, injuries could range from broken
bones to a fatality in the worst case scenario. Id. In explaining why he marked it as S&S, he
stated that “in an event that an accident occurs, it is reasonably likely that the injury will result in
permanently disabling conditions.” Tr. 77. On the other aspect of S&S, the issue of likelihood of
the event occurring, he expressed that it would be likely as
[w]ith one broken strand already, frayed, other bird cages, … other things in the
photographs [ ] indicate that the cable was mistreated. There's kinks. There's
evidence of abrasion on the cable. Putting the pressure on this cable that is
required to move some of this equipment around corners, around other equipment
is highly – it is likely -- reasonably likely that someone would get damaged -would get hit, if not by the cable, then by the moving loads that you're trying to
pull.
Id. In terms of exposure to the hazard, the inspector stated that he knew there were “three miners
working around this area at the time.” Tr. 78. He evaluated negligence as moderate, “[b]ecause
[the operator] didn't have really mitigating circumstances why that cable was left on in that
condition.” Tr. 79. Nor, had they taken other action such as taking the cable off, and tagged it
out. Had they done such things, he would have listed the negligence as lower than moderate.
In terms of evaluating how long the condition had existed, the inspector stated it had been
“at least one shift.” Tr. 80. That conclusion was based upon “[t]he amount of damage that was
done.” This was not speculation since he was up in that area and observed that they were
working as they were setting up a new longwall face there. Tr. 80. In further support of his
conclusion, the inspector stated that it could not have occurred in one shift because it would take
several times for a cable to be pulled on and off before it would be in the condition he observed.
Tr. 81-82. The inspector added his view that this did not develop over one shift, as the frays
rubbing against the inside of the scoop bucket indicated that the cable had been reeled on and off
multiple times. Tr. 82.
The Court then asked some questions to clarify the circumstances involved with the
cable. The inspector agreed with the Court’s analogy of the cable to a garden hose with a hose
reel, and also that the cable here had a hook or some device at its end in order for it to pull some
piece of equipment. Tr. 85. The inspector informed that indeed the cable had a hook at its end.
Id. Thus, the inspector confirmed that the cable was available for use and, by his testimony, had
been used. Id.
On cross-examination, the inspector described the scoop as a “duck bill scoop,” and that
it is primarily used to pull or move shields around. In Exhibit P-3C, he identified the edge of the
bucket in that photo, while adding that his focus was on the cable, not the bucket. He estimated
the bucket’s depth to be six to eight feet. Tr. 87-88. The winch itself is set back about another
foot from the bucket. Tr. 88. Though he did not measure it, the inspector thought the cable was
a maximum length of 20 feet. Id. He confirmed that the anchor piece, which is normally on the
spool, was completely off. Tr. 89. When attaching the cable to a piece of equipment, chains are
used to make the attachment. In other words, it is not simply a matter of having the cable directly
attach to the equipment. Instead, chains are used in concert with the cable hook.

41 FMSHRC Page 640

When Respondent’s Counsel suggested that if the cable were completely unwound, it
would simply turn on the spool, as it was not attached, the inspector countered that the indication
was that the cable, stretched out too far, broke and luckily no one was hit when that occurred. Tr.
91. Respondent’s argument was that if the cable were simply let out 20 feet, the spool would
simply spin freely. To that hypothetical, the inspector agreed, but only if there was no binding
effect on the cable. Id. For such a binding effect to occur, the inspector stated there would need
to be two to three wraps around the spool. Id. The Court sought clarification on this.
The inspector agreed that the cable wrapping two to three times around the spool can act as an
anchor point and that it is designed that way, as the anchor point itself is not designed for tension
to be placed on it. Tr. 92. Thus the inspector agreed with the Court’s understanding that “the
cable serves part of the anchoring itself if it's wrapped around enough times.” Id.
The inspector was also asked about the “red zone,” as that term is applied where winches
are used. He informed that it refers to the “stay clear zone,” and he agreed that Consol provides
training on that subject. Tr. 97-98. However, the inspector did not agree that the scratches he
observed could have developed simply in the normal rolling up of the cable, because there were
too many of them and such marks don’t occur in the normal process of rolling up the cable.13
Tr. 98-99.
Chase Shaffer testified for the Respondent. He is employed by Consol as a safety
inspector. Directing him to Citation No. 9077085, he acknowledged that he was with Inspector
Yates on January 6, 2018. Addressing Ex. R-4, he identified the exhibit as his notes and that he
made them soon after the inspection. Tr. 479. He then spoke to the duck bill battery scoop,
which was on the 4A working section at the number 2 track entry. He asserted that it was not
being used when they viewed it. Tr. 480. He described it as a “tractor of the coal mine. …
basically a tractor/forklift-type of piece of equipment used, [a] utility piece of equipment for
supplies and other equipment.” Tr. 480. Yates, Shaffer stated, wanted to check various pieces of
equipment as part of his E01 inspection for their overall safety features, and this included
examining the steel cable. Tr. 481.
Essentially, Shaffer’s description of the use of the cable on the scoop comported with the
other testimony of record. However, he added that the person operating the reel is “inside an
enclosed steel cage, operator's compartment fully surrounded 360 degrees by a protective cage.”
Tr. 483. Shaffer described the length of the scoop bucket as eight by four and a half feet.
Tr. 484. The spool of wire rope’s location is recessed about three feet from the front of the
scoop. Id. Shaffer asserted that the spool was not useable, that is, “[i]t would not be functionally
useable for its intended purpose, what you would need to use it for. It was not in a condition
where it would be useable.” Id. He added that “the grommet, the connection point where it
attaches onto the reel itself was off. It wasn't attached. So when you would go to use it, for lack
of a better term, it would free spin, so you would never be able to properly secure your item that
you want to load. It would just sit there and free spin.” Tr. 485. Shaffer spoke to the most recent
time the duck bill was examined, informing it occurred on January 15, 2018, per Ex. P-2, at the
13

The Court felt compelled to comment to Respondent’s Counsel that the evidence
seemed “fairly compelling,” up to that point. The Court emphasized that it was not prejudging
the matter, but it had an issue whether the number of scratches on the reel was a winning
argument. Tr. 99.

41 FMSHRC Page 641

next to the last page of that exhibit, and referencing the No. 14 Cat 636 battery scoop. “4A” also
appears on that line identifying that it was on the 4A working section. Tr. 486. According to that
exhibit, the examiner found no defects. Shaffer explained that the discrepancy, with the model
numbers, with the citation identifying it as a CAT 630 but the report listing it as a CAT 636, as a
mistake, and neither he nor Yates are certified mechanics and one of them was simply in error.
Tr. 487-88.
Shaffer informed that he is experienced in operating wire ropes and winches. Tr. 488.
Reviewing Ex. P-3, he agreed that it shows damaged and fraying wire braids and strands.
This included in one photo that “it's to a point where the rope was completely severed into two
parts because of the broken strands. …[ and he saw] a broken grommet,14 anchor point so to
speak, a snub that would secure the rope into the reel. Tr. 489-90. In sum, Shaffer stated that
from operational standpoint in this condition, you would not be able to accomplish your task.
Plainly speaking, it was not useable. Tr. 490. Shaffer also offered that the “person operating rope
can’t see the spool [and that] person is in the machine inside that fully enclosed cage.
Tr. 492. Further, Shaffer did not believe that, given the Consol requirement for a pre-op before
using the equipment, any would try to use the equipment in that condition. Tr. 493. Directed to
some scratching on the empty spool, per the third photo in that exhibit, Shaffer believed the
grommet created that. Id.
On cross-examination, Shaffer was directed to his notes, per Ex. R-4. He agreed that the
reel was not connected to the anchor point. Tr. 495. Asked if it was possible that if there's a load
on that cable, even without an anchor point connection, whether there could be enough force on
that cable to bite onto the reel, Shaffer responded, no, because it was a shortened rope, that is to
say, “the amount of rope you would have pulled off to load something would not leave you
enough cable on that reel to accomplish [a task].” However, in general terms he conceded that it
was possible. Tr. 496. The Court interpreted Shaffer’s answer as a qualified no, in that if one did
not need the full length of the wire rope unwound, it would be possible for the cable to bite on
the reel. Further, Shaffer conceded that he did not know how many times the cable would need to
wrap for a bite to be created. Id. He also agreed that the equipment was not locked or tagged out
and therefore it was available for service. Tr. 497. As he was not present when the most recent
weekly exam was performed, Shaffer could not speak to whether that exam was thorough, but he
responded that Consol’s employees are qualified and certified to perform such work. Id.
While bantering over questions posed by the Secretary’s counsel over whether the cable
was in a safe condition, he preferred to answer instead that it was not usable.15 Tr. 498. He then
allowed that one could injure oneself if attempting to handle it. So too, he preferred to state that
the cable was damaged, avoiding a response as to whether the condition was a violation of the
standard. Id.
14

Shaffer stated that the grommet anchors the rope to the reel. Tr. 492.

15

To make it usable, Shaffer stated it would need to be attached to the reel and all the
strands repaired, as for example where it was “completely severed” and it would need to be
restored to its full length. Tr. 498. As a practical matter, Shaffer informed on redirect that the
‘fix’ would actually be replacement of the cable. Tr. 499.

41 FMSHRC Page 642

For this matter, Citation No. 9077085, the Respondent asserts in its post-hearing brief
that as the “cable was no longer attached to the winch reel [ ] any tension put on the cable would
simply cause the winch reel to free spin. Thus, the cable could not to be used for pulling
equipment.” R’s Br. at 2. The Court finds that the Respondent’s contentions regarding the S&S
designation are conclusory in nature, merely asserting that “[i]t was not reasonably likely that
this condition created a hazard or that any miner would be injured by this condition … .” Id.
As for negligence, its argument is that “no agent of the operator was aware the condition existed
and the condition could have developed since the last exam.” None of these contentions have
merit.
Here, the Respondent contends that the Secretary has failed to meet his burden by
showing that the winch cable contributed to a discrete safety hazard warranting an S&S
designation and has also failed to show that the winch cable was reasonably likely to cause an
injury. The cited winch cable is used primarily for loading heavy equipment or supplies onto the
duckbill scoop. The cable is extended toward the equipment that is being loaded and secured
with a large stabilizing hook to stabilize the equipment as it is being loaded. The person
operating the winch is inside a fully enclosed steel cage. The winch cable was severely damaged
in several areas and was functionally unusable, making it extremely unlikely that it would be
used for pulling or loading equipment. The anchor point connecting and securing the cable to the
reel was no longer attached. The result of the anchor point being disconnected from the reel is
that it would cause the wheel to free spin when attempting to pull anything with the winch cable
and not allow the winch cable to tighten or secure itself to the reel.
Shaffer analogized attempting to use the cable for pulling equipment in this damaged
condition with trying to load a vehicle onto a tow truck under the same conditions. He offered
that if there is no fixed point to secure the tow cable onto the reel attached to the truck, the tow
cable would just keep “spinning and spinning and doesn’t have the ability to secure [the vehicle]
onto the truck.” Further, Respondent asserts that Mr. Shaffer credibly testified that the cable was
not long enough to wrap around the reel enough times to serve as an anchor point and still
maintain enough length to pull equipment.
Consol states that, in an attempt to support the allegation that the winch cable had been
previously used in its damaged condition, the inspector testified that lines and grooves in the
scoop bucket indicated prior use, attributable to the frayed cable rubbing against the scoop
bucket. However, the Respondent asserts that Yates presented no evidence that the winch cable
actually caused the lines and grooves in the scoop bucket or that the grooves could not have been
created by an undamaged cable. Consol adds that a scoop is used for numerous applications in a
coal mine, including scooping up piles of sharp, rigid loose coal and rock and loading heavy
equipment and supplies, thereby creating countless potential sources of lines and grooves inside
the bucket. Thus, it contends that the scratches and grooves in the scoop bucket have little
evidentiary value to show prior use and they could have been caused by any number of different
types of material inside the bucket. Accordingly, it argues the Secretary has failed to prove that
they were caused by use of the damaged winch cable. Therefore, because it was not reasonably
likely that this condition contributed to a discrete safety hazard or that any miner would be
injured by this condition, the citation, No. 9077085, should be reduced to non-S&S and unlikely.
R’s Br. at 32.

41 FMSHRC Page 643

Consol further contends that the negligence level should be “low” due to considerable
mitigating circumstances. First, the scoop was parked with no miner around it at the time of the
inspection. Tr. 497. Second, the condition of the cable was not reported to Consol and could have
happened since the last examination of the scoop and the Secretary has failed to prove otherwise.
Third, the damages condition of the cable negated any ability to use the cable for pulling
equipment. Tr. 492. Therefore, the evidence of considerable mitigating circumstances should
reduce the negligence designation to “low.” R’s Br. at 33.
In its Response brief, Consol repeats its view that the violation should not be deemed
S&S, contending that the Secretary’s reliance on Eagle Nest, 14 FMSHRC 1119, 1123 (1992), is
misplaced because it conflates assuming miners will be cautious with looking at the surrounding
facts to determine if it is likely a miner will be exposed to a hazard. Consol agrees that one may
not presume that a miner will be cautious but that the likelihood that a miner will be exposed to a
hazard is a very different consideration. It offers, as an example, evidence that miners would not
be expected to be injured by an outby rib at the precise time it falls, because they rarely go there.
In a similar fashion it contends that the likelihood is nil because the winch is operated from
inside the operator’s cage. Thus, it contends that the contention that the cable could break and
strike a nearby miner is unsupported. R’s Response at 5-6.
Continuing its somewhat unusual defense – that the cable’s condition was so bad that it
could not hold a load by being wrapped around the spool – and that the inspector’s notion that
the cable could so wrap on itself, was mere speculation, Consol points to Shaffer’s assertion that
the cable would be too short to pull a load if it had to wrap around itself. Id. at 6.
The Secretary asserts that both Yates “detailed testimony and photographs prove that the
Operator failed to maintain the cited winch cable in safe operating condition, and failed to
remove the scoop or the winch from service.” The Court agrees that the Respondent did not
present any evidence to contradict this. As for gravity, the Secretary notes that the winch cable
was not in safe operating condition, was not locked or tagged out, and was available for service.
The Secretary points to the scratch marks, as photographed by the inspector, to show that the
winch had in fact been used without the cable being properly anchored to the reel.
While conceding that the scoop operator sits in a protected compartment, that person
often works together with another miner outside the scoop in the mine entry or crosscut to direct
travel in the low-visibility conditions and around corners. Accordingly, the Respondent cannot
simply rely upon miners’ training about red zones to discount their exposure to the hazard.
As for the negligence involved, again the Secretary looks to the inspector’s testimony and
photographic evidence to support a moderate negligence finding. The number of damaged areas
to the cable, including the broken anchor point, frayed threads, severed threads, and “bird-caged
wires” all indicate that these conditions developed over time and after repeated use of the cable
in an unsafe condition. For that reason, a conclusion that the operator either knew or should have
known of the dangerous condition is appropriate. Last, there was no evidence from the
Respondent that the cable had only been damaged during the same shift. Given this state of
affairs the Secretary urges that, applying the six statutory criteria, the proposed civil penalty of
$953.00 remains appropriate.

41 FMSHRC Page 644

Analysis of Citation No. 9077085
Upon consideration of the credible evidence, the Court finds that the violation was S&S
and that the negligence was moderate. An unusual defense, the Respondent contends that the
cable was so bad it was not useable. However, the cable had not been removed and the
equipment was not tagged out. Consequently, the equipment was available for service.
The inspector’s testimony as to the cable being the source of the scratches and marks in the
bucket was also credible, establishing use, especially given the undisputed condition of the cable.
The Respondent’s challenge does not dispute the fact of violation, but rather that it was
deemed S&S with moderate negligence. Regarding S&S, the Court finds that there was a
reasonable likelihood of the occurrence of the hazard against which the standard is directed.
The duck bill scoop was not maintained in safe operating condition, nor was it removed from
service, and it was being used in that defective condition. The cable’s condition of disrepair
presented a discrete safety hazard—that is, a measure of danger to safety—contributed to by the
violation, which was at least somewhat likely to result in harm.
The obvious hazard is that a cable in this undisputed condition can break and an injury
could result in such an event. Use of such a damaged cable, being used to pull heavy
components puts tension on the cable and, if the cable breaks, a whiplash effect can occur.
Though the equipment’s operator was protected from a whiplash event, the Court finds that, per
the inspector’s testimony, others could be at risk should a cable failure occur. Even if such other
person(s) were not struck by a cable failure, there could be associated injury with the load
attempting to be moved. Under these circumstances and findings, in the Court’s estimation of the
credible evidence, this situation was an accident waiting to happen. Accordingly, with a cable in
such disrepair, on these facts, the occurrence of the hazard would be reasonably likely to result in
an injury. And, rather obviously, such an injury would be of a reasonably serious nature.
As for the inspector’s view that moderate negligence was involved, the Court concurs
that the operator did not present any mitigation to explain why, given the cable condition, the
machine was not tagged out or taken out of use. Moderate negligence was a more than fair
designation under these circumstances.
Given this state of affairs the Secretary urges that, applying the six statutory criteria, the
proposed civil penalty of $953.00 remains appropriate. From its independent application of the
110(i) penalty criteria, particularly with regard to the gravity and negligence of the violation as
described above, the Court assesses a $953.00 penalty.
Citation No. 9077083
Citation No. 9077083 alleges a violation of 30 C.F.R. § 75.517, involving holes in the
480 volt power cable for a scoop charger. The Respondent seeks to have the citation modified to
list the expected injury as no lost workdays and low negligence.
Inspector Yates testified regarding Citation No. 9077083, Ex. P-4, which he issued on
January 6, 2018, pertaining to a 480 volt power cable to the No. 12 groundhog scoop charger,

41 FMSHRC Page 645

citing 30 C.F.R. § 75.517. Tr. 100. That standard, a statutory provision, titled, “Power wires and
cables; insulation and protection,” provides “Power wires and cables, except trolley wires, trolley
feeder wires, and bare signal wires, shall be insulated adequately and fully protected.” While the
inspector was checking the battery charger to make sure there was adequate ventilation, he
observed that “the cable looked like it was possibly damaged,” in that it appeared to be
deformed. Tr. 101-02. After making sure that the high voltage cable was disengaged from the
power source, and then locking it out, he began checking the power cable by hand. In that
process, he found at the area of his initial concern, that the inner conductors of the cable were
damaged. There, he found a hole of about one inch in the outer jacket and he could see the
copper wire inside the cable. The inner conductors were exposed for almost the entire one inch
opening. The problematic cable was hanging on the rib loops. Tr. 102-04. Also, where that cable
connects to the charger he found another cut. Tr. 104-05. Clarifying the locations of conditions
he observed, the inspector stated that the first cable, which had three conductors, came from the
power center supplying the 480 volts to the groundhog scoop charger. That cable was coming
outby the load center and going to the charger. Separate from that charger cable, there was a
cable that turns the AC into DC, which cable was also damaged. Tr. 105.
The bottom line was that the inspector found a problem area in two cables and his citation
recorded this. Tr. 105-106. He took photographs of both conditions. Tr. 106-07; Ex. P-5A-B. As
noted, the inspector stated that he could see the copper wire. Tr. 107. Ex. P-5C, another photo,
shows the other cut, involving the second cable, which was in the outer jacket of the cable that
leads from the charger to the scoop batteries. Id. Yates stated that exposure to that condition
would occur anytime a miner was putting the scoop on a charge and that miners were exposed to
the damage from both cables. This would involve examiners as well as helpers walking in those
areas. Helpers for the scoops assist the operators who are charging batteries. Tr. 107-08. At those
times, the cable would be energized. Tr. 108. The 480 volt cable would also be energized when
the scoop batteries were charging. As for the second cable, from the charger to the scoop battery,
a miner would be exposed any time he's taking the scoop off the charge. Tr. 108.
As for the type of injury, the inspector marked that as “fatal.” Though it was unlikely to
happen in this instance, he felt that if it did occur, the result would definitely be fatal. Tr. 109. He
marked the negligence as moderate because he found no mitigating circumstances to warrant
lowering that designation, and he noted that he easily detected the problem just passing by it. He
added that a good examiner, that is, one who’s trained to do proper examinations, should also
check those cables as they're walking, to ensure that their miners are safe, so that they won't
come in contact with any damaged cables. Tr. 110-11. Further, he believed the condition had
been present for more than one shift because of “[t]he amount of dust present and the condition
of the cable. The amount of dust inside the hole indicates that that condition has been there more
than one shift.” Tr. 111.
On cross-examination, the inspector agreed that the second cable he cited is similar to a
jumper cable from the charger to the batteries. Given that, the inspector agreed that hooking up
such a cable is never done under power. Tr. 114. In both cited instances, the condition was
abated by re-insulating the outer jacket, not by splicing the cables. Tr. 115. Splicing involves
connecting two cables together. Id. While the inspector’s notes for this do not expressly state that
he saw copper wires, he stated that he did see copper and that is what he meant by writing

41 FMSHRC Page 646

“damaged.” Tr. 116. The inspector agreed that both cables are moved as mining continues. For
the charger cable, he agreed that it should be locked and tagged out before it is moved.
Tr. 116. As for the other cable, which was hung and had slack in it, he agreed it was on the rib,
not located on the floor. Tr. 117. He admitted that in taking his photos, he bent the charger cable
a little so that he could have a good photo to reflect the condition he cited. Tr. 119.
He added that he could not damage the inner cable by bending it and, if that were possible, the
cable would need to be removed from service. As for the other cable, the one on the rib, he stated
that he did not manipulate it all. Tr. 119. To the suggestion that the inner cable was rugged, he
responded that current and abrasiveness are separate considerations. Tr. 120. Id. The inspector
agreed that the 480 volt cable had ground protection. Tr. 121.
On re-direct, the inspector affirmed that the inner conductors are covered only by a thin
membrane, to wit, the black insulation he described in earlier testimony. Beneath that membrane
is copper. Tr. 122. Referring to the photos in Exhibits P-5A and P-5B, the inspector stated that he
did not manipulate or bend the cable prior to taking those photos. He only had to wipe the dust
off. Tr. 122-23. While the cables are, during normal mining, designed to be bent and moved
around, that does not include getting run over or squeezed against a rib. Tr. 123.
On further cross-examination, the inspector maintained that, though it was difficult to see and
though the photo was not great, the copper wire is visible in Photo 5A. Tr. 123-24.
This equipment was on the same working section as discussed in Citation No. 9077085; it
is the area that charges all the batteries. Inspector Yates was in the process of performing a full
inspection of the No. 12 groundhog scoop charger when he found the damaged cable on the
scoop charger. Tr. 501. Respondent’s witness Shaffer noted that the citation itself recounts that
the damage to the cable was to the outer jacket exposing the damaged black inner conductor. The
damaged section of the cable was alongside the rib on what he described as “Christmas tree
hangers,” that is to say, insulated cable hangers, and that the damaged area was located at the
fifth loop back, meaning the furthest loop back against the rib in that section of cable. Tr. 502.
Given that location, Shaffer expressed that the damage could not be easily seen. The scoop
charger is typically moved every eight to ten days. When that occurs the power is off. Id.
According to Shaffer, the inspector had to bend or twist the cable to show him the damaged
section. Tr. 503. Upon doing that, Shaffer did see the inner cable but saw no damage to those
inner leads. Id. Shaffer then directed that a certified electrician examine the cable to ensure that
there was no more damage beyond what they could visualize. Tr. 504. A splice was then made to
fix the cable. Tr. 504. A second issue was identified with the charger, which Shaffer described as
“a small hole on the outer jacket of …the charger jumper cable.” Id. The jumper cables go from
the charger to the scoop. Id. Shaffer stated that in the mining environment it is not difficult for
holes such as this to occur. Tr. 505. The Secretary elected not to conduct cross-examination for
this citation.
For this matter, Citation No. 9077083, Consol accepts the inspector’s likelihood of the
injury or illness designation, which was marked as “unlikely,” but it does challenge the claim
that the injury from this condition would reasonably be expected to be fatal. It contends that it
was unlikely that a miner would contact the hung section of the cable while the scoop charger
was energized and that the Secretary did not prove that a fatal injury would result from the
condition. R’s Br. at 2. It adds that the Secretary failed to prove that the cited condition was

41 FMSHRC Page 647

present at the time of the last electrical exam and that, since the condition was not obvious, the
negligence should be reduced to “low.” Id. In support of its position that the gravity should be
reduced from “Fatal” to “Lost Workdays or Restricted Duty” and that the negligence should be
low, the Respondent looks to MSHA’s Citation and Order Writing Handbook. R’s Br. at 35–37.
While the Respondent concedes that there were two cables at the scoop charger which
were damaged, the damage to the power supply cable was located at the area closest to the rib,
and therefore less obvious. For the other cable, the charger jumper cable, Respondent contends
that neither cable is handled by miners or moved while it energized. Respondent notes that the
inspector admitted that it would be unlikely that a miner would contact the cable.
Notwithstanding the inspector’s relating of an incident wherein a miner was allegedly
electrocuted from a pinhole in a cable, Respondent, noting that the inspector is not an electrician,
asserts that the cable’s voltage, in and of itself, is not sufficient to show that a fatal injury would
be reasonably expected to occur. It adds that the Secretary introduced no evidence of the cable’s
amperage. Further, the inspector admitted that cables had ground fault protection.
The Respondent also asserts that the Secretary’s case was deficient in its failure to consider how
the environmental conditions may affect the type of injury to be expected. For instance, there is
no evidence in the record setting forth how an injury would be affected if a miner’s clothing
came into contact with the cable as opposed to his bare skin and there was no evidence
considering whether conditions were wet or dry and how such conditions can affect the type of
injury to be expected. Without such information, the Respondent concludes, the fatal designation
cannot be sustained.
Speaking to negligence, Respondent contends that there was no evidence that the cables
were in the cited condition during the previous electrical examination, nor evidence that the
operator was aware of the condition, and it discounts the inspector’s claim that the dust he
observed supports his view that the condition had existed for more than a shift.16 R’s Br. at 37.
Apart from the above, the Respondent also objects to the Secretary’s eleventh hour
attempt to amend the citation’s likelihood/S&S designations, as the Respondent did not
challenge the inspector’s determination of the likelihood of the event’s occurrence.
R’s Response at 7-9. It notes that this apparent change was not litigated at the hearing and the
Secretary never moved the Court to amend the citation. In this regard, the Respondent opposes
any attempt by the Secretary to amend his pleadings post-hearing without any motion, citing Jim
Walter Resources, Inc., 35 FMSHRC 1709, 1714-15 (2013) (ALJ).

16

The Respondent adds that there was no evidence as to the cable condition at the last
exam, no evidence as to the conditions the cables were subjected to since the last exam, and no
evidence as to whether the load center, charger and cables had been moved since the last exam.
But, if the Respondent is suggesting that somehow the Secretary should have provided this
information, and without offering just how the Secretary would have made those determinations,
it is the Court’s view that such information was the Respondent’s burden to provide, not the
Secretary’s.

41 FMSHRC Page 648

From the Secretary’s perspective, the evidence supports a finding that the violation was
reasonably likely and that it was S&S. In that regard, the Secretary notes that the scoop charger
was not locked or tagged out of service, and was available for use. In support of that view, the
Secretary notes that the cable leading from the power center to the charger was hanging on the
rib in loops near the charger, and contends that a miner connecting scoop batteries to the charger
would be exposed to this damaged area of cable. Mine examiners would also be exposed while
performing their duties, such as when checking to make sure that the charging station properly
ventilates into the return. Further, the cables would be energized whenever a miner puts the
scoop batteries on charge, including when they are getting out of the scoop operator’s
compartment, and when the batteries were charging. Coming into contact with the damaged
areas of the energized 480-volt cable could cause fatal injuries from electrocution, and this is true
even if the inner copper power leads were not exposed or damaged. Sec. Br. at 11.
Furthermore, the Secretary notes that he is not required to establish that there were exposed
copper leads, as the danger of electric shock is present even where only small holes in the
insulation are present as they pose a risk of serious injury. Id., citing Harlan Cumberland Coal
Co., 20 FMSHRC 1275, 1286 (Dec. 1998). At a minimum, the Secretary concludes that the
evidence supports the inspector’s generous designation of the violation as non-S&S.
As for the degree of negligence, the Secretary submits that the dust and the damage to the
cables, establish that the conditions had existed for more than one shift and therefore moderate
negligence is appropriate as the operator either knew or should have known of the damaged
cables.
Accordingly, the Secretary asserts that the Court should affirm MSHA’s proposed civil
penalty of $429.00 using the six statutory criteria and the Part 100 regulations. Sec. Br. at 12.
Analysis of Citation No. 9077083
The inspector found two cable defects: a 480 volt power cable to the No. 12 groundhog
scoop charger, described as the charger cable; and a separate cable from the charger to the scoop
battery. The inspector agreed that the second cable was analogous to jumper cables and that
when employed that cable is not under power. Though his notes did not record that he saw the
copper wires, the inspector stated that he did observe them and the Court finds that the
inspector’s testimony was credible on that issue. The inspector marked the violation as non-S&S,
but the injury as fatal and the negligence as moderate, as he found no mitigating circumstances.
The inspector also considered that the problem was easily detected, simply by walking by the
cable. Thus he considered the condition to be obvious, as a diligent mine examiner would have
seen the problem. Dust in the hole informed the inspector that the condition had not just occurred
and thus had existed for more than one shift. For the charger cable, he agreed that it should be
locked and tagged out before it is moved.
In this instance, as noted, the Respondent challenged the claim that the injury would be
fatal and it seeks to have the negligence denominated as “low.”
The Court finds that the Respondent, in its analysis, has merged the likelihood of the
injury or illness designation, which was marked as “unlikely,” with the claim that the injury from

41 FMSHRC Page 649

this condition, though unlikely, would reasonably be expected to be fatal, but the two concerns
should be evaluated separately. The Court finds that the credible evidence is that, though not
S&S, and unlikely, should an unfortunate miner come in contact with the charger cable at least, a
fatality could result and more so for the power cable than for the jumper cable, as the latter is
never hooked up under power. With the inspector’s non-S&S determination being upheld, the
Court therefore rejects as unsupported by the evidence, the Secretary’s afterthoughts that an S&S
designation could be entertained.
Regarding negligence, the Court does agree with the Respondent’s contentions that it
should be deemed low. Only one of the cables, the 480 volt cable, presented a plausible risk of
shock, but given the location of the defect for that cable with the 1 inch hole in the outer jacket
and accepting that cable had to be bent or twisted to reveal the defect, low negligence is the
proper characterization of this violation. It is noteworthy to the Court that the Secretary elected
not to conduct cross-examination of the Respondent’s witness for this citation.
Accordingly, based upon all the evidence of record and the Court’s findings as to the
challenged issues of negligence and whether a fatal designation was warranted, the Court finds
the former should be characterized as low but that the fatal designation remains appropriate. That
latter determination is distinct from the inspector’s determination that the event was unlikely to
occur, a finding that the Court agrees is consistent with the evidence adduced.
The Secretary proposed a penalty of $429.00. However, the 110(i) penalty factors
strongly suggest a reduction in the penalty amount in light of the lower negligence finding.
For the above stated findings and reasons, the Court finds that, applying the six statutory criteria,
a civil penalty in the amount of $100.00 is imposed. Further the Citation is to be modified to
reflect “low” negligence.

41 FMSHRC Page 650

Citation No. 9077086
Citation No. 9077086 alleges a violation of 30 C.F.R. § 75.508, which requires all
stationary electric apparatuses to be shown on a mine map. The Respondent seeks to have the
citation vacated.
Citation No. 9077086 was issued on January 7, 2018. Ex. P-6. Inspector Yates described
it as “a citation that an electrical component of the electrical system was not listed on the outside
electrical map. Tr. 126. The cited standard provides:
The location and the electrical rating of all stationary electric apparatus in
connection with the mine electric system, including permanent cables, switchgear,
rectifying substations, transformers, permanent pumps, and trolley wires and
trolley feeder wires, and settings of all direct-current circuit breakers protecting
underground trolley circuits, shall be shown on a mine map. Any changes made
in a location, electric rating, or setting shall be promptly shown on the map when
the change is made. Such map shall be available to an authorized representative of
the Secretary and to the miners in such mine.
30 C.F.R. § 75.508 (emphasis added). The cited standard requires that the mine map be
updated with all the main electrical equipment, such as the main electrical, 12,400 volt cables,
load centers, switch houses, in short, anything that is not going to be moved. Tr. 128. In this
instance, the load center was at the three cross-cut, on the 4A new longwall section face.
Tr. 128-129. There was another load center inby the one cited. Tr. 129.
The essential charge is that the cited load center was not advancing – instead it was
stationary. The Secretary contends that this is a violation because, while moving load centers do
not need to be listed on the map, high voltage cables that take energy to those load centers must
be so listed on the map. Such maps are kept outside and they are to list the location of the high
voltage cables. Tr. 127. In this instance, the citation was for a “load center that had moved with
the section at one time, [in the past] but [the mine was] then jumping off of it to power another
load center that was actually moving on that section.” Id. The inspector had been in that area the
day before, so he knew where the mining was going and he knew that the load center was not on
the map. Id. A moving load center will advance as mining continues. In contrast, at the time of
the citation, the cited load center was not advancing, instead it was stationary. Id.
The purpose behind the standard’s map listing requirement is if an “emergency” occurs,
it is known where power is located and how to direct people underground in the event that there
is a rescue situation, so that rescuers or mine personnel will be able to energize equipment as
needed. Tr. 129. The inspector marked “no likelihood” on his citation and one person affected,
because he considered it to be a paperwork violation. Tr. 130. He viewed it as a failure by the
mine to keep their maps up-to-date. However, he marked the negligence as moderate because he
found no mitigation. Id.

41 FMSHRC Page 651

On cross-examination, the inspector did not agree that if the load center was servicing a
working section, it would not be considered stationary equipment. Tr. 132. While he agreed that
it was on the section, he deemed it stationary because the cited load center did not advance as the
section advanced. Id. Thus, for the inspector, the key determinant was if the load center
advanced as the section advanced. He determined that the load center was not advancing and
therefor it was stationary. He knew this to be the case because:
they have to have powered equipment to run the other equipment that's running up
and down the face, so if they move this load center up there, they don't have
enough power for that shuttle car -- or cable because we limit it to 900 foot at that
mine to reach where the coal is going to dump to the feeder.
Tr. 133. He conceded that although at some point the load center would be moved, it would not
be for the 4A working section.17 Id. The Court notes that those assertions by the inspector were
not contradicted.
The inspector’s position was plain – if equipment is not being moved with the section,
then it is stationary. Tr. 134. The working face, he informed, is the section – thus, the working
face is not somewhere outby that location. Id. In asserting that the load center was serving the 4A
working section, the inspector explained “the load center was being used to run power through
that load center and take it onto the next load center.” Tr. 136.
Reading from his notes in connection with this citation, the inspector stated, “[t]he load
center on 4A working section … MMU-081 is not shown on the map.” Tr. 137. His notes do not
state that this is a pass-through load center. The inspector was not of the view that any load
center on the section had to be on the map when he issued the citation. Tr. 137-38.
The Respondent contends that the 4A Section load center is not ‘stationary electrical
equipment’ required to be identified on the electrical map because its location changes as the
section advances. R’s Br. at 2-3. As before, Shaffer was with the inspector when this matter
arose. The citation involved a problem on the surface in that the inspector was on the surface
examining the mine’s electrical map. That map has to show all permanent underground electrical
installations, and the inspector was determining if the underground equipment was properly
marked on that map for its location. Tr. 507. Under his interpretation of the standard,
Respondent’s Shaffer did not consider the equipment to be stationary. Tr. 509. The Secretary’s
counsel asked no questions for cross-examination.

17

Asked how the load center is connected to the power system, the inspector
demonstrated that he was knowledgeable on that issue, advising that there is a “[h]igh voltage
cable 12,470 running from … outby the front end [i.e. the beginning] of the panel, [and there is]
a switch house … with VCBs run-throughs, and [they take the 12,470] and run it all the way up
through to that load center. Tr. 133-134. The load center is connected to that power. The other
load center on the 4A is connected from that load center by running the 12,470 through that.” Tr.
134.

41 FMSHRC Page 652

Respondent adds that the load center’s “location is provided on the current working maps
at the Patterson Creek Portal [and] [a] mine electrical schematic sheet was posted next to the map
that had the location and load rating of the 4A Load Center posted on it.” R’s Br. at 3. Also, the
Respondent asserts that there were several copies of the mine electrical schematic sheet which
was available for all electricians to take underground and use.
On those grounds, the Respondent asserts that the citation should be vacated and, if not,
the negligence should be low. However, the Respondent does not explicitly explain the basis for
its low negligence contention, but the basis for this position is apparent from its contentions, as
described above and in its post-hearing brief. Id. at 3.
Respondent points to MSHA’s Program Policy Manual, Volume V, at pg. 52, (2003), for
the proposition that only the circuit supplying power to the working section must be identified on
the map. Id at 6-7. Here, Inspector Yates admitted that in his notes he identified the cited load
center which he believed must appear on the electrical map as the load center on the 4A working
section MMU-081. When asked whether that load center was on the section, Mr. Yates conceded
that it was on the section. Mr. Yates also admitted that the load center was used to help power
the 4A working section due to the very big distance between the main power supply and the
working section. Respondent points to the testimony of witness Shaffer in support of its claim
that it was in compliance with standard 75.508 by identifying the circuit supplying power to the
working section on the electrical map. Thus, Respondent contends that since the load center
serviced the working section it was not a stationary electrical installation and therefore it was not
required to appear on the mine electrical map. Id. at 7.
Alternatively, the Respondent asserts that if a violation is upheld, the negligence should
be deemed as low, on the basis that there were considerable mitigating circumstances. In this
regard it notes that there was a mine electrical schematic sheet posted on the wall next to the map
showing the location of the 4A load center that was cited for failing to appear on the map.
Exs. R-8, R-10. Second, there were numerous copies of the electrical schematic available for
miners to take underground to perform their duties. Ex. R-10. Third, the section load center is
marked with its current location on the working maps in the foreman’s assembly room and is
updated regularly as the location of the section load centers changes. Ex. R-8. Finally, Consol
did what it believed it was obligated to do under the standard by identifying the circuit supplying
power to the working section on the electrical map. R’s Br. at 8.18
For its part, the Secretary contends that Citation 9077086 should be sustained, reasoning
that one of the two load centers for the 4A Section should be deemed to be “stationary” and a
part of the mine’s permanent electrical system because “[r]espondent was using it as a “passthrough” load center.” Sec. Br. at 12. A review of the Citation indicates that the Inspector cited
the “the load center located on the 4A working section.” Exhibit P-6 (emphasis added). There is
no mention of two “load centers.” The Inspector’s notes similarly state that the Inspector
intended to cite the “load center on the 4A working section MMU-081” Ex. P-6, at 3 (emphasis
added).
18

In its Response Brief, Respondent again urges that the citation be vacated, but without
offering any new justifications. R’s Response Br. at 9-11.

41 FMSHRC Page 653

At the hearing, the Inspector claimed that this “load center” was a “pass-through” load
center but the Respondent contends that using a load center as a “pass-through” does not make it
“permanent’ or “stationary.” If that were true, every component of a longwall mule train that is
not at the end of a circuit, and which allows current through, would be deemed “stationary.”
Rather, the test MSHA has imposed on itself in the Program Policy Manual (PPM) is that
“equipment being used on the working section is not considered to be stationary equipment”
Ex. R-9 (emphasis added). While the Inspector attempted to avoid the implications of the PPM at
the hearing, his own words in the citation and his notes that he intended to cite the load center on
the working section.
Further, the language of the standard makes it clear that it was intended to refer to truly
stationary equipment such as “permanent cables, switchgear, substations, transformers,
permanent pumps and trolley wires.” All of these items are installed permanently for an obvious
long duration and do not move with a section.
Although every “load center” may not advance often, it does move with the mining.
While the testimony was imprecise on the issue, the Respondent maintains that when two load
centers were used for a section, and one load center reached its capacity as the Section 4A panel
advanced, a second load center may be moved in to take the place of the first one, which was
then moved forward. With the use of two load centers, the mine is then able to complete the
panel. Only later, when the panel was complete, will the mine move the equipment to a new
section and at that time both load centers move with the mining.
Clearly, the load center cited by the inspector was described by him as being “on the
working section” and whether “pass-through” or not, the “load center” is moved from time to
time and is not stationary. It will go from one section to the next as the mining advances.
Based on these facts, the Respondent concludes that the citation should be vacated.
R’s Br. at 10.
Analysis of Citation No. 9077086
Plainly, the question is whether a stationary electrical apparatus was involved here. It is
undisputed that the Operator failed to list the location and electrical rating of the cited power
center on the electrical map. Thus, the essential charge is that the cited load center was not
advancing – instead it was stationary. The term “stationary” is not defined and MSHA points to
no authority for its position as applied to this set of facts.19 Therefore, the term must be applied
in a practical manner in this instance. Although the Court views it as a close call, based on the
inspector’s explanation, the cited load center must be considered as stationary. Did the load
center move? The answer, based on the credible evidence, is not really. While the inspector
conceded that although at some point the load center would be moved, it would not move while
performing its function for the 4A working section.
Still, the inspector described the matter as a paperwork violation and as such he
designated the gravity as no likelihood of injury, non-S&S, no lost workdays, and affecting one
19

Nor was the Court able to find any Commission case law or MSHA policy papers,
defining “stationary equipment.”

41 FMSHRC Page 654

person – an examiner or miner. The Secretary maintains that because the General Maintenance
Supervisor maintains the electrical map outside his office, an agent of the operator either knew or
should have known of the condition, and accordingly moderate negligence is appropriate.
Under such assumptions, the Secretary contends that using the six statutory criteria the proposed
civil penalty of $118.00 is warranted.
Given the legitimate differing views of whether the cited load center should be deemed
stationary, the Court accepts as valid, the Respondent’s considerable mitigating factors, as
described above. That leaves only one statutory criterion in dispute – the appropriate negligence
designation. In this instance, the proper designation, taken together with the mitigating
circumstances identified by the Respondent, is no negligence was involved. The Respondent had
a reasonable, though incorrect, understanding of the stationary equipment requirement as it
applied to this load center.
Considering the factors above and the other statutory criteria, the Court finds that a
$29.00 (twenty-nine dollars) is appropriate and is so imposed. The negligence finding is to be
modified to reflect no negligence.
Citation No. 9077087
Citation No. 9077087 alleged a violation of 30 C.F.R. § 75.209(f), involving a lack of
ATRS certification for multiple roof bolters. The Respondent seeks to have the citation vacated.
Inspector Yates also testified about this Citation, No. 9077087, Exhibit P-7, which he
issued on January 7, 2018, citing 30 C.F.R. §75.209(f).20 Tr. 138. That standard, titled,
“Automated Temporary Roof Support (ATRS) systems,” provides at subsection (f) that “[t]he
support capacity of each ATRS system and the structural capacity of each compartment shall be
certified by a registered engineer as meeting the applicable requirements of paragraphs (e)(1) and
(e)(2) of this section. The certifications shall be made available to an authorized representative of
the Secretary and representative of the miners.” The citation asserted that the operator “failed to
keep or to supply the Secretary with the ATRS21 certifications for several roof bolters in the coal
mine and the roof bolters on the continuous miners that's located inside of Harvey Mine.”
Tr. 139. This information has to be made available to the inspector, as the Secretary’s
representative. Id. Specifically, the ATRS certifications were missing for “[t]he Company No. 3,
1B 35, 34, 32 and 11 Fletcher roof bolters, and the Company No. 1, No. 3 joy; 14 ED 25
continuous miners, nor the Company No. 42 Sandvik 450 continuous miner had certifications for
their ATRSs on the surface.” Tr. 140-41. Absent a re-build, this is a one-time, not an annual,
certification. Tr. 141.
20

The inspector informed that the cited standard “requires that the operator must
maintain copies of the professional engineer who certified that ATRS, that it will meet the
standards that -- whether it's 1,800 or 11,800 or 18,000 pounds of pressure to hold up.” Tr. 139.
21

The ATRS is a bar that hydraulically it lifts the jack up and lifts that bar, and it pushes
against the roof and the bottom, and it holds that roof up as it is being bolted. This is to protect
the miners who are installing roof support. Tr. 139-40.

41 FMSHRC Page 655

The inspector requested copies of the certifications for the named equipment from Mr.
Shaffer, who was the safety escort that day and is also the mine’s safety representative. The mine
did provide the inspector with certifications for some equipment, but not for the equipment he
cited, as the operator’s representative could not find them. Eventually, the paper showing
certification was provided, but it took nearly a week to do that. Tr. 143 (emphasis added).
Plaques on the equipment do not constitute certifications and no one made such a claim at that
time. Tr. 144. The standard requires certification from an engineer and the plaques do not contain
such information. Id.
The inspector marked the negligence as “moderate,” as he did not find any mitigating
circumstances such as, for example, if they had presented the records in the past but now could
not locate them. Tr. 145. In any event, ultimately, the records were located. Id. As it was deemed
strictly a paperwork violation, the inspector marked the citation as non-S&S. On the same basis,
he marked it as no lost workdays. Tr. 147. Upon cross-examination, the inspector stated that,
because he was a roof bolter for ten years and he has examined many pieces of equipment at this
mine, he knows the plaques do not state that they are engineer certified and therefore such
plaques are not a substitute. Tr. 148.
Nevertheless, Respondent’s Brief asserts that,
[a]ll the cited equipment is marked with an ATRS certification tag which can be
inspected by the operator, miners, and inspector at any time. Each tag certifies
that the ATRS system has been tested, approved, and verified by a certified
professional engineer to withstand the required 18,000 lbs. of pressure.
Furthermore, the ATRS certifications for the equipment were eventually provided
to the inspector indicating that the ATRS systems had been properly certified. For
this reason, this Citation should be vacated.
R’s Br. at 3.
In its Response Brief, the Respondent adds “30 CFR § 75.209(f) requires two things.
First, each ATRS system must be certified. Second, the operator must make the certifications
available to an authorized representative.” R’s Br. at 11. The Secretary contends that Consol
“violated this standard because it was unable to produce to the Secretary’s representative the
engineering certifications.…” Sec. Br. at 14. However, the testimony of the Inspector indicates
that Consol did produce the certifications, just not immediately upon request.
There is no question that Consol was eventually able to produce all certifications. The
Respondent observes that 30 C.F.R. § 75.209(f) does not use the term “immediately,” and from
that claims that to the extent that the Secretary seeks to write this word into the standard, this
should be accomplished through “notice and comment” rulemaking, a suggestion the Court
cannot take seriously. As an example, Consol, citing 30 C.F.R. § 75.363(b), looks to the record
of pre-shift/on-shift examinations which must be kept “on the surface at the mine.”
Other regulations, it notes, simply state that the records must be available “upon request,”
offering the example of 30 C.F.R. § 46.9(h). It notes that MSHA has interpreted the “upon

41 FMSHRC Page 656

request” language to allow 24 hours for the mine to produce the records, citing QMAX Company,
2006 WL 2927266 (Sept. 29, 2006) (ALJ). In QMAX, the ALJ vacated a citation where the mine
produced records on the grounds that “[t]here is no specific requirement that the records be kept
at the mine site, or that they be produced within a specific time after a request is made.”
Id. at *21. Here, 75.209(f) contains no requirement for immediate production and on that basis,
the Respondent argues that the Secretary failed to prove a violation of the standard and
accordingly the citation should be vacated. Response Br. at 10-11.
At its heart, Consol’s argument is that, at most, this was a technical violation since the
certifications were produced, albeit it was not able to locate the records immediately.
R’s Br. at 9. Effectively, the inspector agreed that Consol had misplaced them and did not
suggest that there was any chicanery involved. Thus, there was no suggestion of falsified or
forged documents. Respondent notes that the standard “is silent as to when the certifications
must be provided, rather, it simply requires that the ATRS systems be “certified by a registered
engineer” and “made available” to an authorized representative of the Secretary. Therefore,
because Consol complied with both requirements, Citation No. 9077087 should be vacated
because the Secretary has failed to prove a violation of the standard by a preponderance of the
evidence. Id.
In the alternative, should the citation be upheld, Consol believes any negligence should
be found to be “low” for two reasons. First, the certifications were produced and second, “Mr.
Shaffer testified that the metal plaques or tags on each piece of equipment do[ ] certify that the
ATRS system complies with the requirements of the standard and can be inspected at any time.”
Id. at 10.
The Secretary contends:
Respondent violated this standard because it was unable to produce to the
Secretary’s representative the engineering certifications for six roof bolters and
three continuous miners. Although Respondent’s witness testified that these
pieces of equipment have plaques describing the manufacturer, approval number,
and serial number (R. at 558-559), Respondent did not offer any credible evidence
or photographs that these plaques have the certifications required by § 75.209.
Based on his extensive mining experience, Inspector Yates confirmed that the
plaques do not have the required engineering certifications.
Sec. Br. at 14. According to the Secretary, this is fatal to the Respondent’s claim. It has already
been noted that, as a paperwork violation, the inspector designated the gravity of this citation as
no likelihood of injury, non-S&S, no lost workdays, and affecting one person: an examiner or
miner.

41 FMSHRC Page 657

Analysis of Citation No. 9077087
The Secretary seeks a $118.00 civil penalty for this violation. The operator’s stance that
the citation should be vacated is without merit. In response to the Respondent’s argument that the
records were ultimately provided, the Court observes that there has to be an implied reasonable
time to provide these documents. This means that the Respondent’s contention can’t be upheld
other than for delays of short duration in producing the documents, meaning hours and not many
at that. If the mine is unable to produce the documents by the time the day’s inspection has
concluded, there is a problem. Whether more time will be afforded needs to be left to the
inspector’s discretion, which will in turn depend upon the reason advanced by the mine operator
to warrant additional time. But here, no such dilemma was faced. The delay was not short, taking
nearly a week to furnish them. Therefore, the certifications were not “made available” in the
common sense meaning of the term, and the fact of violation was established.
However, the Court finds that the Respondent’s negligence was low, not moderate. There
was some negligence here; the Respondent failed to meet the standard of care by being unable to
produce the records within a reasonable time after the request to supply them.
In examining whether the operator knew or should have known of the violative condition, it can
only be said that the operator was unaware of the misplaced records until asked to produce them
and that it should have maintained better recordkeeping. The operator failed to meet the standard
of care by being unable to produce the records within a reasonable time after requested to supply
them. Accordingly, this situation fits as no more than low negligence, under the circumstances.
As with the Court’s analysis for the stationary electrical equipment citation, discussed
above, given in this instance that the negligence was low and upon consideration of the
remaining statutory penalty factors, a $59.00 (fifty-nine dollar) penalty is appropriate.
Citation No. 9077091
Citation No. 9077091 alleges a violation of 30 C.F.R. § 75.1725(a), alleging a lifting
device on the Operator’s #55 Brookeville jeep was not maintained in a safe working condition.
The Respondent seeks to have the citation listed as non-S&S, unlikely risk of injury, and low
negligence.
Inspector Yates also testified about Citation No. 9077091, Ex. P-8, which he issued on
January 19, 2018, citing 75.1725(a) for a material lifting device mounted on the 55 Brookville
jeep. The standard, titled, “Machinery and equipment; operation and maintenance,” provides at
subsection (a) that “[m]obile 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.” The inspector observed that the hoisting cable on the lifting device on a
longwall maintenance “Jeep” mantrip was attached to a hook in an improper manner. Tr. 150.
The lifting device was a small crane, [the venture lifting device] akin to a winch, located on the
back of the mantrip. The cable is a wrapped stainless steel variety. Id.

41 FMSHRC Page 658

The safety issue was that “about two or three feet of the original cable was broken off and
still attached to the hook, and [he added] someone had run the other cable from the winch back
through and tried to braid it back in and make a connection point for the hook.” Tr. 151.
Photographs of this hoisting cable were admitted in the record. Tr. 151-52, Ex P- 9A-E.
The cable was frayed with broken and loose strands, and these had been wrapped with black
tape. This condition of the cable presented a hazard because it had not been terminated in a
proper fashion, with the risk that someone could get smacked in the face or get cut. Tr. 154.
The Jeep mantrip is used on the longwall for lifting very heavy components, such as motors,
jacks and pumps. Tr. 155-56. The mine tried to fix the improper termination by braiding it back
into itself. Id. Instead of properly terminating the cable, such as by using an eyelet, the mine just
had the cable running through the hook. The end result was that upon pulling and applying
pressure, the improper termination could fail. The inspector observed that the cable had already
creased and started to pinch, evidencing that tension had been applied to it and therefore that it
had been used to lift equipment. Tr. 157.
At its core, the inspector concluded that the cable broke when used improperly or when
lifting something that was too heavy. Instead of performing a proper repair, which would’ve
necessitated taking the cable out of service, this unsafe fix was attempted. A proper fix
wouldhave required a new cable or properly terminating it on the hook. Tr. 159. The Jeep was
not tagged out and consequently it was available for service. Tr. 160. The inspector
characterized the negligence as moderate because the attempted, inadequate, fix took some time
to perform, and therefore evidences that the operator knew about the issue. Following up on that
point, he inspector stated that it was possible for him to have considered the negligence to have
been high because to make an inadequate repair reflects that the operator knew they would need
to be using the cable. Tr. 161. In fact, the inspector believed that the cable had been used with
the inadequate attempt at repair, because of evidence as to the manner in which it was connected
to the hook. Id.
The inspector emphasized the hazards – the hook could fly off and one could drop a load.
Further, the cable could break, especially given the way the hook was attached to it. If that
happened, the cable could come back and contact the person operating the equipment or one who
was helping to load the Jeep. Tr. 162. Thus, the inspector agreed that two hazards were
presented: the cable snapping and hitting someone and a load falling. Id. The potential injuries
could be quite serious, ranging from “[c]uts, broken bones, contusions, and considering what
loads you have, the motors, it could easily crush your legs. You know, it could crush your feet,
maybe even amputation if it hits right.” Tr. 163. Although he marked the injury as lost work days
or restricted duty, he stated that he could have marked it as permanently disabling with one
person affected. Id.
On cross-examination, the inspector agreed that this equipment is to be examined weekly
and there is to be a pre-operation inspection each time before the equipment is to be put in
service. Tr. 169. Pertinent to that point, he noted that he found the condition at the end of the
shift, so it had been used on that shift. Id. The inspector’s emphasis was upon the condition of
the cable, not the condition of the hook; the fact that the cable was shiny around the hook
showed that it had been used on the hook. Tr. 170. The inspector agreed that there could be “red
zone considerations” in the use of the winch, meaning that, if followed, a person would be a safe

41 FMSHRC Page 659

distance from the cable in the event of a mishap. Tr. 171. At bottom, the concern of the inspector
was that if the improperly terminated end were to fail, the whiplash effect could injure a miner.
Tr. 180. Further, lifting straight up is not the only function involved, as the cable may be used to
drag loads before attempting a lift. Id.
The inspector agreed with the Court’s summary of the two hazards associated with this
citation: “One is that the cable itself, this jury-rigged cable, could just come undone and perhaps
whip and hit someone possibly” and the other is that if it collapses, due to this poor way to
secure the hook, it could also result in whatever this hook was intending to lift, that item could
drop. Tr. 184. On re-cross examination, the inspector agreed that miners are supposed to operate
this machinery from a distance. Tr. 187.
Respondent’s Mr. Stein was with Inspector Yates for this citation as well. The jeep was
parked in an area between entries where rides not in use are parked. Stein described this area as
the “track shoot.” Tr. 409. Ex. R-12 reflects Stein’s notes regarding this citation. Stein related
that the inspector came to the jeep and “saw on the crane there was tape on the cable, and he
pulled the tape off the cable to see what was underneath it, and the hook had been broken off.
They looped it back on and stuck it there, so the cable I believe wouldn't roll back up into the
spool.” Tr. 410. Essentially, Stein’s description was in accord with the inspector’s. Ex. R-13, a
photo, shows the jeep and its boom on the back end. Id. Stein, referring to page 3 of the exhibit,
stated that there is metal shield on top of the boom. Tr. 411. As indicated in earlier testimony, the
boom is used to pick up broken equipment, such as a longwall motor and bring it to the track. Tr.
412. Also, consistent with earlier testimony, Stein explained that there is a cable on the spool and
a hook which was used to pick up the piece of defective equipment. Once picked up, the boom
would deposit the item on the duck bill. Tr. 413. He also agreed about the red zone, adding that
the miners were trained “to be two times the length of the cable that they're working with out of
the way, and they would also have the piece of equipment itself, the Jeep, between them and
what they were picking up.” Tr. 413. This training included demonstrating to the miners “how
far the cables would fly. After it was over, they would go look and see how far down the entry it
went and to show them, you know, you got to be out of the line of fire, out of the red zone, and
everybody in our mine went through that [training].” Tr. 414.22

22

Respondent attempted to introduce a record of the weekly exam for this equipment, but
which record had not been disclosed to the Secretary. The exam record purported to show that
the equipment had been examined on the day prior to the citation. Tr. 416. Yet, Respondent’s
Counsel stated that he “would represent to the Court that the examination records are not
consistent with that date.” Tr. 417. The Court denied the request for the record to be introduced.
Tr. 418-419.

41 FMSHRC Page 660

Referring to Ex. R-8, the citation in issue, Stein believed that an injury was unlikely,
offering as his reasoning that
it was metal on metal. … if it was used, it would slip right out. And there's a
safety latch on the hook, so if the cable [were to] come off, it's going straight up
in the air because they use it to pick things up. They don't use it to pull, and it
would be lucky if it held five pounds. It was held on by tape.
Tr. 419-20.
Upon cross-examination by the Secretary, Stein admitted he had never operated this
crane and that it was not locked or tagged out and accordingly it was available for service.
Tr. 420. He also did not take issue with the inspector’s description of the cable, agreeing that the
damaged area was held on by tape and looped back through itself. Tr. 421. He also agreed that
only the area where the spool is located was completely covered by metal. Tr. 422. Referencing
R-13, the manual, and the diagram of the crane within that, Stein agreed that towards the end of
the boom is an exposed area and also that “any area underneath where the cable runs through the
pulley down to … the hook” is also exposed. Tr. 423. Additionally, Stein agreed that “[i]f the the
cable snapped … where the area was damaged, it was above where the hook was [located] [and]
if someone was attempting to use this crane to lift a piece of equipment in that condition, it
would have snapped at that point.” Id. Respondent’s counsel tried to diminish Stein’s adverse
testimony, asking what would occur if the cable were to snap while lifting a piece of equipment,
to which Stein responded that the cable would have gone up in the air or backtracked into the
spool. Tr. 423.
Respondent’s Brief remarks that:
[t]here is no indication that the winch was used or could have been used in this
condition and the Inspector did not observe it being used in this condition. There
was no evidence that an agent of the operator was aware of this condition. On
those bases, it argues that the Citation should have been marked non-S&S and low
negligence.
R’s Br. at 3-4. The Respondent also asserts that the Secretary failed to meet his burden of
establishing that the cited condition contributed to a discrete safety hazard warranting an S&S
designation and also failed to show that the winch cable was reasonably likely to cause an injury.
The Respondent asserts that the lifting device is used primarily for lifting equipment and
components onto and off the track mounted Jeep. However, at the time the citation was issued,
the machine was found at the bottom, was not in use, and the winch controller was disconnected
from the power source. Supporting these observations, the inspector conceded that the controller
must be connected to the power source to operate the boom and lift an object with the machine.
Respondent contends that Yates further conceded that he was only guessing that the cable had
been in that condition for at least a shift and had no proof to support that allegation.
Thus, Respondent asserts that there is no indication that the winch could have been used in the
condition that it was found and that Yates conceded that he did not see it used in this condition.

41 FMSHRC Page 661

Speaking to the twin hazards identified by the inspector, whiplash and an item being
dropped upon attempting to perform a lift, the inspector conceded that use of the controller
would allow the machine operator to stand 20 feet away from the device and the object being
lifted while in use and that the purpose of the controller is to allow the machine operator to stand
away from both the machine and the object that is being lifted. Consol trains its employees to
stay out of red-zones and to use the controller when operating the lifting device. Thus, Consol
asserts that use of the controller would negate both potential sources of injury identified by the
inspector. R’s Br. at 33-34.
Respondent maintains that, in order to be injured by the cable, the machine operator must
either be standing directly underneath or beside the object being lifted or have greater than 20
feet of cable off the spool to be in reach of the cable in the event of a whiplash. However, it
asserts that both scenarios are extremely unlikely to occur because the machine is designed to
vertically lift very heavy objects for short distances. Thus, it is unlikely that greater than 20 feet
of cable would ever be utilized for any lifting application that would place a miner in danger of
being struck by a whiplash. Respondent also contends that Mr. Stein explained that a whiplash is
very unlikely to occur because if the cable snapped, it would most likely backlash into the spool
and away from any miner. Further, given the large size and nature of the components that are
typically lifted with the device, it is very unlikely the cable could be used for lifting such objects
in the damaged condition it was found. After all, Stein testified that because the hook was merely
taped on, he believed that it would be difficult to lift as little as five pounds with the machine.
Therefore, because it was not reasonably likely that this condition contributed to a discrete safety
hazard or that any miner would be injured by this condition, Citation No. 9077091 should be
reduced to non-S&S and unlikely. R’s Br. at 34.
Consol further contends that the negligence level should be “low” because there were
considerable mitigating circumstances. It notes that the controller to energize and use the winch
was not plugged in on the #55 Brookeville jeep at the time the citation was issued and that the
machine was located at the bottom and was not in use at the time the citation was issued.
Moreover, there were no reports of the cited condition and the operator was unaware that the
condition existed. Contrary to the inspector’s assertion that the cable was looped back into itself
and covered with tape for continued use, Respondent asserts that the cable appeared to be taped
to prevent the loss of the hook and to prevent the broken cable from being pulled up into the
boom. Consol also submits that the condition could have developed since the time of last
examination and that the Secretary failed to prove otherwise. For those reasons, it believes that
the negligence designation is more reasonably identified as low. R’s Br. at 35.
In its Response Brief, Consol disputes the Secretary’s claim that the exhibit photos show
that the cable on the Venturo lifting device had been used in its damaged condition.
Consol counters that this is simply speculation and that the photos only show that the cable on
the lifting device was broken and the piece with the hook had been tied on, with electrical tape
added. Consol contends that S&S requires a more detailed analysis of the surrounding facts and
that a judge must determine if the specific circumstances present at the time of the violation
make a hazard and injury of a reasonably serious nature reasonably likely. R’s Response Br. at
12.

41 FMSHRC Page 662

Consol suggests that “[i]n this case, it is more likely that the cable was tied and taped up
simply to avoid losing the hook and to keep the cable from being pulled back into the boom,”
adding that “[e]lectrical tape and the modest tie job were not going to allow the cable to be used
to lift a load [and that] [c]ommon sense dictates that if the lifting device was used in this
condition, the taped/tied area would come apart.” Id.
Consol submits that inspector Yates was speculating when he suggested the cable had
been used in this condition, maintaining that the hazard identified by Yates, that the cable would
snap with the load dropping on a miner, “strains logic.” Given the way the lifting device is used
with a remote controller and the location of the broken cable, Inspector Yates’ account strains
logic and should be rejected. The citation should be Non-S&S. On the issue of negligence,
Inspector Yates failed to present any evidence that an agent of the operator was aware of this
condition. This equipment is examined weekly. There is no evidence that the condition existed at
the time of the last exam, so the Secretary presented no evidence that the operator knew of this
condition.” Id. at 12-13.
The Secretary’s brief simply asserts that because the lifting device cable was not
maintained in safe operating condition and had not been taken out of service, the standard was
violated, noting that the Respondent’s witnesses did not present any evidence or testimony
contradicting the fact of violation of this standard. As for gravity, the Secretary observes that the
Jeep was neither locked nor tagged as out of service, and was available for use. He contends that,
relying on the inspector’s testimony, a miner attempting to use the lifting device in that condition
would be exposed to two discrete safety hazards: the cable snapping under the weight of a load
and striking a nearby miner due to a “whiplash” effect of the tension on the cable; and the load
itself dropping and striking a miner. Either hazard could reasonably be expected to cause cuts,
broken bones, contusions, and even amputations, in the event of a falling load.
One person would be exposed to this hazard: the miner operating the crane with the remote.
Again, under Eagle Nest, a respondent cannot abdicate its duty to minimize and eliminate safety
hazards by shifting that responsibility onto its employees, nor can a respondent attempt to claim
mitigation regarding S&S when it rests upon the assumption that miners would stay out of red
zones or otherwise exercise caution. Sec. Br. at 16. As for negligence, the Secretary notes that
the inspector designated the violation as moderate negligence because it appeared to have existed
for at least one shift. The evidence is compelling – “[r]ather than locking and tagging the lifting
device out of service, someone had attempted to loop the broken cable back into itself and cover
it with tape.” Sec. Br. at 17. Given these circumstances, the Secretary submits that, using the six
statutory criteria, MSHA’s proposed civil penalty of $638.00 is appropriate.

41 FMSHRC Page 663

Analysis of Citation No. 9077091
To the Court, though intended to show the hazard associated with a cable whiplash which
hazard the mine wanted to impress upon the miners, Stein’s testimony demonstrated how real the
hazard was. It is hardly sufficient to depend upon miners’ adhering to their safety training,
especially when a cable, as in this case, was insufficiently jury-rigged. Thus, it is no answer to
deal with a hazard by hoping that miners will adhere to their training about risks from a cable
failure.23
On the day in issue, Stein asserted that the controller was unplugged. Tr. 414. He agreed
that Consol has a policy requiring that equipment be pre-operationally checked before it is used.
Tr. 414-15. Here too, that is no answer to the hazard presented by the condition, since the
method used to secure the cable was insufficient and an intentional act, contrary to that policy.
The tape served to hide the inadequate fix.
There is no dispute about the condition found by the inspector; the cable was broken and
attached to the hook improperly. The Court accepts the inspector’s credible testimony that the
cable had been used in its improper condition, as he discovered the defect at the end of a shift. It
is important to note that the Jeep was not locked or tagged out and was available for use.
Moderate negligence was a generous finding by the inspector, as the improper fix took some
time to accomplish. There were two hazards presented by this condition: the cable could snap
back and a load could be dropped. The Court rejects the Respondent’s claims that there were
mitigating circumstances and finds that moderate negligence was involved. This violation was
clearly S&S. The twin discrete safety hazards were identified by the inspector, presenting a clear
measure of danger to safety. Thus, there was a discrete safety hazard, a measure of danger to
safety, contributed to by the violation, and such hazard was at least somewhat likely to result in
harm. The seriousness of the expected harm was also established by the inspector’s testimony
that such harm was reasonably likely to result in lost workdays/restricted duty-type injuries
affecting one person.
The Court finds that, applying the six statutory criteria under section 110(i) for this S&S
violation, which also involved moderate negligence, an assessment of $638.00 is appropriate.
Citation No. 9077089
This matter alleged a violation of 30 C.F.R. § 75.517, for a power cable with two holes in
its outer jacket. Ex. P 10 The citation was issued on January 19, 2018 and involved a 480-volt
cable supplying power to the 6B shuttle car on the 7 north mains, which car was in an active
working section. Tr. 189-190. The Respondent seeks to have the citation vacated.

23

Though the Court does not factor into its analysis for the determination of violation for
this citation, nor for the penalty imposed for this citation, No. 9077091, it is still noted that less
than two weeks earlier, there was another dangerous cable situation found at this mine as
reflected in Citation No. 9077085, which was issued by the same inspector, as discussed earlier
in this decision.

41 FMSHRC Page 664

The standard requires that all cables will be protected from damage and properly
insulated. Specifically, the text of the standard, which is a statutory provision, is titled “Power
wires and cables; insulation and protection,” and provides “[p]ower wires and cables, except
trolley wires, trolley feeder wires, and bare signal wires, shall be insulated adequately and fully
protected.”
While inspecting the cable, the inspector found two holes in the outer jacket but there
were no damaged leads inside. However, the cable’s inner power leads were exposed. Tr. 193.
Consequently the inspector determined that the issue could be fixed with a boot wrap. Tr. 191.
At the time he checked the cable, it was connected to the shuttle car and the power was on. Id.
He checked the entire length of the cable, which was about 1,000 feet. Exposure to this condition
would occur when moving the cable, where, for example, it was in the way or there was slack
around the power center. The damaged area of the cable was not on the working section. The
cable does run on the mine floor. If the damaged area is not corrected, over time it could increase
the chance of a shock and this could occur even if the copper leads were not exposed. The cable
can run up against equipment, such as load centers. Tr. 194-95.
Also, cable gets run over in the mining environment. With its 480 volts, that presents a fatal
current. Tr. 195. By comparison, on the surface, people can be killed by 110 volts. Tr. 198.
Exposure to the risk would occur when an examiner is checking the cable or when one is moving
it. Tr. 198. Again, the cable was energized and the shuttle car was not locked out at the time the
inspector found the condition. Tr. 198. However, the inspector marked the injury as unlikely to
occur as coming into contact with the affected section was not likely and the inner conductors
were undamaged too. Tr. 199.
The inspector marked the negligence as moderate since the mine told him they had just
checked the cable and it was good, yet he then found the two holes. Tr. 196. The mine is required
to visually check the cable completely once each production shift. Tr. 197. The holes he found
were a good distance from the snub.24
Upon cross-examination, the inspector informed that the holes were less than an inch.
Tr. 200. When asked why he did not take a picture of the condition, the inspector responded that
he tries to avoid taking pictures inby because of methane. Tr. 200. Even if he wanted to take
pictures inby the last open crosscut, he would have to receive permission from his District
Manager. Tr. 202. The inspector does not factor in any “preop,” when assessing a broken jacket.
Instead, the inspector evaluates based on the condition he finds. Tr. 203. The inspector did
acknowledge that there was a mechanic who was fixing a splice. Tr. 204. The operator’s duty
regarding a cable’s condition is to visually inspect it; the operator is not required to examine a
cable hand over hand, as the inspector did. Id. When challenged about his claim that the power to
the cable was on, the inspector reasserted that it was on, adding that he included that in his notes.
Tr. 206. Because the inner leads were not damaged, he did not mark the violation as S&S. Tr.
24

A “snub” pulley is an idler pulley mounted as to increase the arc of contact between a
belt and a drive pulley. When used in a wrap drive, it has the added function of changing the
direction of the return belt travel. It is related to a requirement that the mine not have more cable
than what is needed to reach the face. This means that slack has to be kept outby that area. It is
on a reel so that it unfurls and also reels back hydraulically in order to keep tension on the cable.
It gets reeled back onto the shuttle car. Tr. 195-96.

41 FMSHRC Page 665

208. Further, even if the inner cables were exposed, that would not trip the ground cable. That
would occur only if one of the inner cables were to cross with the other or with the ground. Tr.
209.
Referring to Ex. R-15, the inspector agreed that exhibit is an onshift report and that it
reflected that maintenance was performed on that cable. Tr. 210. Ex. R-16 reflected a weekly
exam on the equipment in issue, which was performed the day before the citation, on January 18.
Id. The inspector agreed that such cables are subjected to fairly extreme conditions and that a
defect or cut in a cable’s outer jacket can occur rapidly. Tr. 211. However, the inspector rejected
the assertion that the condition he found developed since the last exam, responding, “Not the day
prior, absolutely not. I believe he missed them -- on his exam.” Tr. 215.
He reiterated his view that the problem developed since the last exam because it was outby and
they didn’t move the power. Tr. 217. He did not believe that the cable had been moved because
“[y]ou're only supposed to run with enough cable from that loading point to your miner. [ ] As
you advance, you move more cable into your reel and through your snub.” Tr. 218.
On redirect, the inspector affirmed that a pinhole sized hole in a 480 volt cable can cause
a shock. The inner leads do not provide protection against mining conditions, nor do they protect
against wear and tear in normal mining conditions. Tr. 219. The inspector informed that even
with a pinhole defect one can get shocked, as the electricity could go to ground through the
miner contacting it. Tr. 220. The Secretary then made a motion to amend the citation to S&S,
reasonably likely. It was then immediately pointed out that on the day the inspector issued the
citation he did not mark it as S&S. Id.
The Respondent’s witness Stein was directed to Ex. R-14 and the issue of the 6B shuttle
car. He stated that the shuttle car operator was having a splice done on the car’s cable. As the
cable was unreeled, the operator offered for the inspector to check it. The inspector began doing
just that. The shuttle car was not under power at that time. Tr. 426. Stein admitted that the
inspector found a defect with the outer jacket on the cable between the snub and the machine. Tr.
427. He described that there were two holes, the size of a BB gun shot. The holes were corrected
by being wrapped with tape. Tr. 428. Stein believed that the inspector’s use of a screwdriver
could cause damage to the inner leads, though he saw no damage to those leads. Id. Regarding
the likelihood of injury, Stein expressed that it wasn’t likely since no internal leads were
exposed. Id. The Court then noted that the inspector marked it as unlikely as well. Id. Similarly,
Stein believed that a fatality would not occur because no leads were exposed. Tr. 429. Because
the holes were so small, Stein believed that the negligence should be considered low. Further,
based on his mining experience, he expressed that such a condition could occur rapidly. Id.
On cross-examination, Stein reiterated that the shuttle car was not powered up, and
further, if the inspector said otherwise that would not be true. Tr. 430. Stein felt his recollection
was better based on his notes, Ex. R-14. Tr. 430-31. It was also his view that inner power leads
on a trailing cable would need to be exposed for it to be S&S. Tr. 432. He allowed that, if left
uncorrected, the holes could get larger and eventually there could be damage to the inner leads.
Tr. 432. He did not agree that if one could still get shocked upon touching a power lead that was
not damaged. The Court sought clarification, asking, Stein “[i]f the inner lead is not broken,

41 FMSHRC Page 666

[and] there's no copper exposed,” if he was asserting one cannot get a shock. He affirmed that
was his view, informing “[u]nless you touch the copper, you're not getting shocked.” Id.
Stein agreed that the cables would be handled weekly during permissibility. Tr. 434.
On re-direct, Stein informed that when the weekly permissibility exam is being
performed, the power is off. Tr. 435. He also opined that miners would locate conditions, like
the holes cited in this instance, during permissibility exams or pre-operational checks. Id.
In response to the Court’s question, Stein stated that a pre-operational check had not just been
done; instead they had just completed a splice. Id. However, he then stepped back from that
claim, stating that he did not know if the shuttle car operator had done his pre-op at that time.
Tr. 437. In performing the pre-op, the shuttle operator is not required to do a hand over hand
exam. Tr. 438. Stein agreed that his description of the holes as BB size was his description, not
that used by the inspector. Tr. 437.
Respondent contends that this citation should be vacated. Its brief notes that “[a]t the time
the citation was issued, the shuttle car was not in use and had been de-energized to repair the
cable by making a cable splice. Prior to the issuance of the citation, the operator had not yet had
the opportunity to walk the cable to check its condition prior to placing the shuttle car back into
service. Because work on the cited cable was in progress, including checking the cable for any
additional areas that needed repair, Citation No. 0977089 [sic] should be vacated.”
R’s Br. at 4.
In the alternative, Consol argues that “if the violation is upheld, the reasonably expected
injury would not be fatal and the negligence designation should be “low,” as the “inner leads in
the two cited areas of the cable were not exposed and the condition would have been discovered
in the pre-operational check before the shuttle car was placed back into service. It asserts that the
shuttle car was de-energized, negating any potential for a miner to receive a fatal electrical shock
from handling the cable. Consol also asserts that the “condition was not apparent to any agent of
the operator” and the Secretary “failed to prove that the condition was present at the time of the
last exam.” Id.
Again, Consol advances a twin argument – that the citation should be vacated or
alternatively, the negligence should be found to be “low.” R’s Br. at 10, citing Ziegler Coal
Company, 7 FMSHRC 452 (Mar. 1985). Additionally, Respondent argues that “[p]rior to the
issuance of a citation, an operator should have the opportunity to check equipment for violations
while repairs to the equipment are ongoing.” R’s Br. at 10. Consol contends that its situation is
analogous. It also looks to Beaver Creek Coal Company, 12 FMSHRC 868, 871-73 (Apr. 1990)
for support, asserting that the circumstances involved “ambiguous communications between the
operator and the inspector while repairs to equipment were ongoing.” R’s Br. at 10. However,
Consol acknowledges that in Beaver Creek, the continuous miner involved in that citation was
locked and tagged out for repairs. Id. The judge in that case vacated the citation prematurely
because Beaver Creek had not yet completed all the repairs and made its in-house permissibility
check. Id. at 11, citing Beaver Creek, 12 FMSHRC at 873.

41 FMSHRC Page 667

Consol challenges MSHA’s claim that the shuttle car was energized prior to the
inspector’s inspection of the cable and that he instructed an escort to disconnect the energized
cable from the power center so that he could place his lock and tag on the cable. R’s Br. at 11-12.
Since the inspector agreed that a splice was being performed on the shuttle car cable, it is
difficult to ascribe credibility to the inspector’s claim that the work was being done on an
energized cable, especially since Consol was not cited for that.
In any event, Consol emphasizes that “clearly [it] had not yet completed all the intended
repairs while the shuttle car was de-energized, including performing a required pre-operational
permissibility check of the entire shuttle car.” Id. at 12. In that regard it notes that Consol’s
employees are required “to perform a pre-operational permissibility check on all equipment prior
to the equipment being energized and placed into service.” Id. Consol urges that in fairness
“while repairs to equipment are ongoing, the operator should have the opportunity to check the
entire machine for violations in accordance with its in-house pre-operational policy prior to the
issuance of a citation.” Id. It adds that “[t]he cited area of the cable would likely have been
discovered during the pre-operational check of the cable had Consol had the opportunity to do so
prior to the issuance of the citation.” On that basis, it contends that the Secretary did not establish
the violation by a preponderance of the evidence. Id. at 13.
Again, presenting its alternative position, Consol argues that if the citation is upheld, low
negligence is the appropriate characterization. It notes that it is undisputed that repairs to the
shuttle car were going on, that the cable defects were quite small and the inner leads themselves,
which were not bare, were not damaged. Id.
The Secretary notes that the cable is on a hydraulic reel, nicknamed a “snub” that keeps
tension on the cable as it is reeled back up from the shuttle car and that miners move the snub
whenever the section moves during mining. The cables are energized when the snubs are moved.
The damaged areas of the cable were located in between the snub and the shuttle car, and the
Secretary observes that it is undisputed that the cited cable was damaged. Therefore it was not
insulated adequately or fully protected. Sec. Br. at 17.
The Secretary also urges that the Court should grant the Secretary’s motion to amend the
citation to reasonably likely, and significant and substantial. The motion was made following the
testimony of Inspector Yates. The Secretary notes that, in line with the Federal Rules of Civil
Procedure, the Commission procedural rules have been interpreted to allow liberal amendment of
pleadings and citations in advance of a hearing, during a hearing, and even after a hearing, so
that the pleadings conform to the evidence adduced at trial, citing Faith Coal Co., 19 FMSHRC
1357, 1361-62 (Aug. 1997) (allowing post-hearing amendment of citation); Wyoming Fuel Co.,
14 FMSHRC 1282, 1289-90 (Aug. 1992); Portable Inc., 36 FMSHRC 279 (Jan. 2014) (ALJ
Moran) (granting motion to plead in the alternative). It adds that the Respondent did not object to
Petitioner’s oral motion to amend during the hearing, nor has Respondent asserted any bad faith,
dilatory conduct, undue delay, or prejudice caused by the Secretary’s motion to amend the
gravity of Citation No. 9077089 and that the underlying facts and evidence are unchanged.
Therefore, the Court should grant the Secretary’s motion, consistent with Commission case law

41 FMSHRC Page 668

and the spirit of liberal amendment of pleadings “when justice so requires.” Fed. R. Civ. P.
15(a).25 Sec. Br. at 18.
In support of its contention that the violation was reasonably likely to result in a
reasonably serious injury, the Secretary notes that at the time of issuance, the damaged cable was
energized from the load center and connected to the shuttle car and that the shuttle car was
available for service. It adds that the Inspector locked it out of service with his own lock after the
operator knocked power and unplugged the shuttle car. The Secretary contends that one miner
would be exposed to fatal electrocution hazards when handling the cable to move it out of the
way. Additional exposure to the cable occurs when an examiner is checking the cable during
weekly examinations or pre-operation. Although the Secretary concedes that the inner
conductors were undamaged at the time of issuance, over time, the two holes would continue to
deteriorate and become impacted with coal or moisture, or become wet, which would increase
the shocking hazard. On those grounds it submits that this Citation should be affirmed as S&S.
As for negligence, the Secretary maintains that the operator knew or should have known of the
damaged cable and accordingly moderate negligence is appropriate. Given these considerations,
the Secretary believes that MSHA’s proposed civil penalty of $638.00 using the six statutory
criteria is fully warranted but beyond that because the evidence supports modifying this citation
to S&S, reasonably likely, the Court should assess a higher civil penalty reflecting those more
serious considerations. Sec. Br. at 19.
Analysis of Citation No. 9077089
Respondent seeks to have this citation vacated. The inner power leads were exposed but
not damaged. The two holes found by the inspector were small, being less than an inch.
Exposure to the risk would occur when an examiner is checking the cable or when one is moving
it. The inspector marked the injury as unlikely to occur, as coming into contact with the affected
section was not likely and the inner conductors were undamaged too. It was not S&S, nor did the
inspector mark it as such. Thus, the Court does not subscribe to the Secretary’s motion to amend
the citation, asserting that it was S&S. The Court also finds that the power to the cable was not
on and that the inspector’s recollection was inaccurate on that issue.
The negligence issue is more difficult to evaluate. The inspector marked the negligence
as moderate, since the mine told him they had just checked the cable and that it was good, yet the
inspector then found the two holes. Tr. 196. Given the circumstances of the discovery of this
condition, that repairs were being made on a different section of the cable, it is unreasonable to
find that the negligence was moderate. Low negligence is the more appropriate designation.
Given these findings a penalty of $319.00 is more appropriate.

25

The Court observes here that, under Commission Procedural Rule 1(b), 29 C.F.R. §
2700.1(b), the Federal Rules of Civil Procedure govern Commission proceedings where the
Commission’s own procedural rules are silent.

41 FMSHRC Page 669

Citation No. 9077092
Citation No. 9077092 alleges a violation of 30 C.F.R. § 75.1504(d), for a “missing
signature” violation. The standard cited is titled, “Mine emergency evacuation training and drills.
The Respondent seeks to have the citation vacated. The citation was issued on January 22, 2018.
Ex. P-11. It came about when the inspector was checking records and discovered that the
operator failed to certify by signatures that the training and drill had been conducted. .” There is
no claim that such training or drills were not conducted. Rather, at issue is subsection (d) from
that standard, which provides under “[c]ertification of training and drills,” that “[a]t the
completion of each training or drill required in this section, the operator shall certify by signature
and date that the training or drill was held in accordance with the requirements of this section.”
(emphasis added).
Thus, a recordkeeping violation was involved, which is not to suggest that it is
unimportant. The inspector marked it as non-S&S and no likelihood. Tr. 221-22. The inspector
noted that the mine had already done the required quarterly training and drills, but that they were
not certified by the person who conducted the drills nor did the certification list the dates that the
drills were conducted. Tr. 222. Without knowing who conducted the training, the inspector
cannot know for sure if the miners were actually properly trained. Tr. 223. The period cited was
for the fourth quarter of 2017. At the time the inspector issued this citation it was the beginning
of the second quarter. The citation was related to the previous year’s fourth quarter, which ended
in August 2017. Tr. 224.
In support of this citation, the inspector gathered training records which reflected the
absence of a signature for the person who conducted the training. Tr. 225. In total, seven
signatures were missing. Tr. 226. Though no signature was present, the inspector agreed with
Respondent’s counsel that the person who conducted the training did list his name and his
identification number but the inspector noted that a signature is required. Tr. 229-30.
The inspector stated that he had cited the Respondent for this standard on a prior occasion.
Tr. 231.
For this citation, Consol contends that since the “training verification documents included
the names and employee numbers of all employees who participated in the training, including the
foreman who conducted the training,” Citation No. 9077092 should be vacated. While Consol
contests the violation, if the violation is upheld, the negligence should be “low” because the
identity of the person who conducted the training was included on the form. R’s Br. at 4.
Consol argues that the standard is silent as to the type of form that an operator may utilize
to certify that the training has been conducted and that the standard does not provide a definition
of the term “signature.” Id. at 13-14. Consol does admit that the standard requires that the
operator shall certify by signature and date that the training or drill was held in accordance with
the requirements of this section. Id.

41 FMSHRC Page 670

Consol notes that it is undisputed that the date the training was conducted and the printed
name and unique employee number of the persons who conducted and received the training
appeared on all forms to certify that the training was held in accordance with the standard.
Id. at 14.
Trying too hard, Consol maintains that while no cursive signature was on the form, all the
required information was present. Id. Consol argues that a printed name is equal to a printed
name as both serve to identify the person who conducted the training. Id. Besides, Consol urges,
“employees are often also identified by their own unique employee number.” Id.
Failing to persuade that the citation should be vacated, Consol believes that the
negligence should be listed as “low” because the forms did have the date of the training and the
names and employee numbers of the persons who conducted and received the training, and
beyond that, the only missing information on the form was the name of the person who
conducted the training.
As with other citations, Mr. Shaffer was accompanying Inspector Yates for this matter.
Directed to Ex. R-17, Shaffer identified it as his notes. He affirmed that he challenged the
inspector about this citation. Tr. 511. His objection was that “the documents that he was
referencing that he was citing in the citation did have the employee's name on it and an
identification number specific for that employee, the individualized personalized number that is
identified to that employee.” Tr. 511. Shaffer affirmed that upon his review of the training
records, the person who conducted the training was listed on the form. Id.
Upon cross-examination, Shaffer agreed that on Ex. P-11, there are no signatures of the
person conducting the drill on those pages. Stein acknowledged there were names, but no
signatures. Tr. 512. On redirect, Shaffer informed that it is easier to identify a name by a number
than by a signature. Tr. 513. Upon re-cross examination Shaffer was asked if the standard
requires a signature and, upon being shown the standard, he conceded the point and agreed that
anyone can write down a number. Tr. 514-15.
The Secretary’s arguments were succinct. He noted that the standard does not permit
miner identification numbers as a substitute. The Secretary acknowledged that, given this was
identified as a paperwork violation, the inspector designated the gravity of this citation as no
likelihood of injury, non-S&S, no lost workdays, and affecting one person: an examiner or
miner. As for negligence, the Secretary notes that the inspector issued the citation in January
2018 – the second quarter of 2018 and that the training drills in question took place two quarters
prior. Therefore, the Secretary maintains that due to the length of time this violative condition
existed, the operator either knew or should have known that the records were not properly
certified. On that reasoning, it contends that moderate negligence remains appropriate.
Accordingly, the Secretary asserts that the MSHA proposed a civil penalty of $118.00 using the
six statutory criteria should be imposed. Sec. Br. at 20.

41 FMSHRC Page 671

Analysis of Citation No. 9077092
As noted above, Citation No. 9077092, cites a violation of 75.1504(d) and it was issued
due to “missing signatures” in connection with conducting training and drills. The Respondent
seeks to have the citation vacated. This citation was marked non-S&S and the gravity as no
likelihood and no lost workdays. Apart from the Respondent’s view that the citation should be
vacated, the only remaining dispute is the degree of negligence involved. Importantly, there is no
claim by the Secretary that the training or drills were not conducted. Also, at the end of the day,
the Respondent acknowledged that the required signatures were not present. Although the person
who did the training did have his name and identification number listed on the records, no
signatures were present. That means that the standard was established as having been violated. A
signature is required and the Respondent must take care to comply with that provision of the
standard.
Addressing the other issue, the proper negligence designation,26 given the other attendant
facts, and taking the signature absence in context, the Court concludes that the negligence should
be deemed to be low. On that basis and upon consideration of the other penalty criteria, the Court
imposes a penalty of $39.00.
Citation No. 9077095
Citation No. 9077095, issued on January 23, 2018, alleges a violation of 30 C.F.R. §
75.514, for a defective splice of a welder power cable. Ex. P-12. The Respondent seeks to have
the citation vacated.
The cited standard requires a splice made on a cable be insulated to the same or greater
protection than on the cable prior to the splice.27 Tr. 232. The inspector discovered the condition
while checking the welder cable that was wrapped up on the load center. He found that one of
the splices was torn open, exposing the inner conductors leads. A splice is used where an outer
jacket has been damaged, and the operator has tried to re-insulate that outer jacket back to its
original protection or better. The inspector took pictures of the cable, however none of the photos
were of the alleged defective splice. Tr. 233; Ex. P-13A-E. The hole was an inch or possibly
more. The welder was available for use and plugged in, although the inspector believed that the
welder power had tripped and thus it was not powered.
The inspector did not believe the condition was a recent development because there was
dirt and dust in the opening and because of that it was his view that the condition had existed for
more than one shift. Tr. 238. The inspector informed that the cable was in a confined area with a
26

Although the inspector stated he had cited the mine for a violation of this standard on
an earlier occasion, he did not identify any particulars about the nature of that deficiency.
27

30 C.F.R. § 75.514, a statutory provision, is titled, “Electrical connections or splices;
suitability,” and provides “[a]ll electrical connections or splices in conductors shall be
mechanically and electrically efficient, and suitable connectors shall be used. All electrical
connections or splices in insulated wire shall be reinsulated at least to the same degree of
protection as the remainder of the wire.”

41 FMSHRC Page 672

lot of personnel traffic. If one were to come into contact with the inner lead, the result could be a
fatality. Tr. 244. He marked the negligence as “moderate” because he saw no evidence that it
was a recent development. Tr. 246.
On cross-examination, the inspector agreed that the cited cable is essentially an extension
cord. Tr. 248. He also admitted that he has not issued many splice citations and none at the
Harvey mine. Tr. 249. Further, as noted, he agreed that the power was off the welder and thus it
was not hooked up and the breaker was tripped as well. Tr. 250. Stating that he did not cite the
mine for a splice issue and that the issue was the condition of the cables, he offered that he
should have cited the mine for a “517,” referencing 30 C.F.R. § 75.517, which provides “[p]ower
wires and cables, except trolley wires, trolley feeder wires, and bare signal wires, shall be
insulated adequately and fully protected.” Tr. 249. The inspector also agreed that, more than
volts, amperage presents the real electrical hazard. However, the inspector was adamant that the
cord was on the power center, not on a rib some distance from the power center. Tr. 251. Though
Respondent’s counsel asserted and the inspector agreed that the place where the miners are
plugging things in and activating switches and breakers was not the location where the cord was
stored, he added that miners travel by it, if they go inby from the back of the load center.
Tr. 252. The inspector advised that miners run the cord to the welder and then energize it and
that it could be on hanging on the load center energized. Further, he did not accept the idea that
“one bad drag around the corner with enough force could cause the tape to come off,” adding
that if that were true they would not use such ineffectual splice material. Tr. 252-53.
Respondent’s counsel suggested that, in the mining environment, dust and dirt would inevitably
get into the cut, but the inspector maintained that the dirty condition “took a while” to develop.
Tr. 253.
Mr. Stein was accompanying the inspector for this matter too. Stein conceded that they
found an area where the outer jacket was damaged. He described the cable as akin to an
extension cord for the welder. Tr. 439. The welder was loaded just inby the load center.
Although the cord was not plugged into the extension cord, the cord itself was plugged in, but
Stein believed it was in the neutral position, meaning it had tripped and the power had to be reset
on it. Id. Stein agreed that technically, until reset, it was not under power and he maintained that
the inspector did not pull the plug out nor lock it out. Tr. 440.
Stein described the procedure for using the welder the point of which was unclear.
To use the extension cord with the welder, one drags it to the device. When a task is completed,
the cord is wound back on the reel. Tr. 441. Though unsure of the cord’s length, Stein stated it
was long: some 100 to 150 feet. Id. Stein maintained that the person using the cord would check
it prior to its use. Tr. 442. Stein also suggested that the cord could be damaged when dragging it
around, by hitting debris. As for the damaged area, Stein conceded that there was damage, noting
that it was “previously nicked” and it had been repaired with MSHA tape and resealed. Id. Stein
therefore agreed with the Court’s inquiry that this was the second fix of the damaged area. Id. On
cross-examination, he conceded that the cable was visibly damaged, at least on the outer jacket.
Tr. 445. He also agreed that, unlike the other cable citation, the damage was not “BB” size and
therefore not tiny, and he admitted that the inspector did not need to employ a screwdriver to
visualize the problem. Id. Further he allowed that one could see the inner leads, while adding that
the insulation was on those leads. Tr. 446. He also conceded that there was dust and dirt inside

41 FMSHRC Page 673

the affected area and that on the day the citation was issued, the MSHA tape, used to make the
first repair, was damaged. Tr. 446-47.
On re-direct, Stein affirmed that new damage could occur in the process of reeling the
cord back to the load center. Id. Asked about the notation remarking “no conditions. No actions
taken” reflected on Ex. R-20, Stein agreed that could have happened subsequent to the last exam.
Tr. 448.
The Court inquired of Stein whether, looking at Ex. P-13D, he would agree that the cable
presented a “pretty severe condition which need[ed] immediate attention to correct that.” Stein
did not agree with that characterization. Tr. 448-49. Stein reasoned that as no copper was
exposed there was little concern and also that the pre-operation exam would have found the
problem. He added that the cable looked so bad because there were so many layers of tape
wrapped around it. Tr. 449. As to whether it needed immediate attention, Stein answered “[t]hey
should fix it. If they know it’s there, sure, 100 percent fix it. Yes.” Id.
Beyond the contentions described above, Consol argues that the inspector cited the wrong
standard because the condition found was not a splice. Instead, there was a small puncture in the
outer jacket of the cable and therefore there was no violation of 30 C.F.R. § 75.514. R’s Br. at 5.
In the alternative, if the citation is upheld, Consol contends that since
the welder was not energized or in use at the time the citation was issued and as
there were no bare leads exposed on the cable and the broken outer jacket on the
cable was not reported to the operator [t]he condition would have been discovered
during the pre-operational check and corrected prior to energizing and using the
welder.
Id. Under these conditions, the Respondent concludes the expected injury would not be fatal and
the negligence should be low.
Consol points to MSHA’s program policy manual definition and its definition that a
splice is “the mechanical joining of one or more conductors that have been severed.” Id. at 14,
citing 30 C.F.R. § 75.603; MSHA Program Policy Manual, Volume V (2003). Splices are “made
with an MSHA accepted and approved splice kit which includes large insulating pads, insulating
strips, MSHA printed electrical tape, abrasive sand paper, and solvent wipe.” R’s Br. at 14.
Elaborating, Consol argues that the condition on the welder cable was not a splice
because the conductors inside the cable had never been severed and all the components of an
approved splice kit had not been used. Consol’s safety inspector testified that the area had been
previously taped over and it was terminated by being taped again. Yates’ testimony was offered
in support of Consol’s position, because he stated that “a splice is where the outer jacket has
been damaged, and the operator has tried to re-insulate that outer jacket back to the original
protection or better.” Id. at 15. Recognizing the error, the inspector acknowledged that he cited
the wrong standard. Consol asserts that it is now too late for the Secretary to amend the citation
to name a different safety standard violation. Id. at 16.

41 FMSHRC Page 674

The Secretary contends that the Respondent violated the standard because the cited cable
splice was damaged, exposing the inner conductors. Speaking to gravity, the Secretary states that
“[d]epending on how far a miner would have to extend this ‘extension cord’ cable from the
power center to the area being welded, the miner would handle and unravel the wound-up cable
off the supply rack, exposing himself to the damaged and unsafely spliced area. He also notes
that safety Inspector Stein explained that a miner would “just drag it up there.” Sec. Br. at 22.
Additionally, the Secretary states that “miners frequently travel through the confined, cluttered
space around power center, which increases the likelihood that miners may brush up against the
exposed inner power conductors.” Id. Given these considerations, the Secretary views the
inspector’s evaluation of the gravity as non-S&S and unlikely as generous and that the evidence
actually supports a finding of significant and substantial, and reasonably likely. Therefore, at a
minimum, the Court should affirm the gravity of this violation as issued, namely, non-S&S and
unlikely to result in fatal electrocution injuries to one person.
As for negligence, the Secretary contends that the physical evidence observed and
photographed by the inspector supports a finding of moderate negligence. This is the case, given
the visible wear and tear on the spliced area and the presence of dirt and dust on the insulated
inner leads, and for those reasons the condition likely existed for more than one shift and
accordingly, the mine operator knew or should have known of this condition. The Secretary
concludes that, applying the six statutory criteria, the proposed civil penalty of $429.00 is the
minimum amount to assess. Sec. Br. at 22-23.
Analysis of Citation No. 9077095
The standard cited, 30 C.F.R. § 75.514, addresses electrical connections or splices by
requiring that they are to be mechanically and electrically efficient, and that suitable connectors
are to be used. It also requires that, for both connections and splices in insulated wire, they are to
be reinsulated at least to the same degree of protection as the remainder of the wire. By contrast,
30 C.F.R. § 75.517, the standard the inspector stated that he believed that he should have cited,
requires that power wires are to be insulated adequately and fully protected. The citation itself,
borrowing from the language of 75.514, asserts that a splice in the cable was not being
reinsulated to the same degree of protection. The Secretary did not move to amend the citation
by citing 75.517.
The Court takes the view that the correct standard was cited but that either standard
would apply. This is because, applying 75.514, in requiring that splices be reinsulated at least to
the same degree of protection, there is an implied requirement that such splices be maintained to
that level of protection. Here that maintenance level was not kept up, as the splice was torn open.
The parties agreed that the cited cable was akin to an extension cord. Based on the
credible testimony, the Court does not buy into the claim that the condition was a recent
development. Nor does the Court accept Stein’s view that this was not a pretty severe condition.
Even Stein admitted that it looked bad, though he offered that was due to so many layers being
wrapped around it. The Court would also note that many of the Respondent’s contentions were
directed at the gravity associated, such as whether the power was on at the time the condition
was found, but notes that the citation already listed it as unlikely. Though unlikely, a fatality was
the correct injury or illness that could result.

41 FMSHRC Page 675

Therefore, the only remaining determination is the degree of negligence. For this, the
Secretary contends that it should be found to be moderate, seeking a civil penalty of $429.00.
Given the obviousness of the condition and the Court’s finding that the inspector’s testimony that
this was not a recently developed condition, it is found that the negligence was moderate.
As such, upon independently applying the statutory penalty criteria, the Court imposes a penalty
of $429.00.
Citation No. 9077096
Citation No. 9077096 alleges a violation of 30 C.F.R. § 62.130(a) for a noise violation on
a longwall. The Respondent seeks to have the citation vacated. As the parties spent considerable
time on this matter, both at hearing and in their post-hearing submissions, the Court takes a
commensurate approach in its decision.
Citation No. 9077096, issued on January 24, 2018 by Inspector Yates, invoked 30 C.F.R.
§ 62.130(a). Tr. 264, 283; Ex. P-14.28 That standard, titled, “Permissible exposure level,”
provides:
The mine operator must assure that no miner is exposed during any work shift to
noise that exceeds the permissible exposure level. If during any work shift a
miner's noise exposure exceeds the permissible exposure level, the mine operator
must use all feasible engineering and administrative controls to reduce the miner's
noise exposure to the permissible exposure level, and enroll the miner in a hearing
conservation program that complies with § 62.150 of this part. When a mine
operator uses administrative controls to reduce a miner's exposure, the mine
operator must post the procedures for such controls on the mine bulletin board
and provide a copy to the affected miner.
The standard requires that miners not be exposed to noise levels over the 90 percent,
permissible exposure level (“PEL”). If a miner’s exposure level is over 100 percent —a number
which allows for an error level of 32 percent— then the operator is required to begin
administrative or engineering controls.29 Id. Where noise levels are over 85, that represents an
action level; the miner needs to be identified and a hearing conservation plan put in place. Id.
Prior to this citation, the mine had not been on a “P code,” meaning it had not previously been
required to any controls installed to reduce noise. Tr. 278. If the PEL shows that it is greater than
132 percent, a citation will be issued. In this case the inspector, finding such a level, issued a
citation that day, as the miner was exposed to 0.3 percent over that amount. Tr. 272.
28

The transcript mistakenly referred to the standard cited as 30 C.F.R. § 62.138. Tr. 264.
The cited standard was 30 C.F.R. § 62.130(a).
29

If, for example, a noise level is more than 132, the operator may introduce
administrative controls by altering the miner’s work schedule so that the exposure to those levels
is not for an extended period. Engineering controls, on the other hand, involves “anything
feasible from the operator to help silence or muff[le] the sounds of the equipment.” Tr. 265. By
feasible, it is meant methods that are cost-wise feasible. Id.

41 FMSHRC Page 676

The context for this citation was that the inspector was conducting a noise survey on the
3A longwall. That day, when still at his MSHA office, he calibrated the dosimeters to be used,
and then brought them to the mine. There, he then informed the mine that he would be
conducting a noise survey and thereafter he affixed the dosimeters on the miners he was testing
that day. Tr. 266. The idea is to have the dosimeters as close to a miner’s ear as possible, in order
to as closely approximate the noise he was experiencing. Tr. 267. Two calibrations were made
before testing; once in the office and then again when the survey is being conducted. Id. None of
the devices were out of calibration. Tr. 268. The devices were calibrated at 114 dBAs and then
attached on six miners, each of whom were on the 3A longwall. Id.
Notably, after the testing, the dosimeters calibrations were checked yet again, making a
total of three calibration checks. Tr. 275. The inspector was carrying a handheld dosimeter that
day as well. Id. He rode with the miners and, once at the face, took readings at the locations he
anticipated finding the loudest amount of noise, checking levels with his dosimeter. He then
continued with his E01 inspection, so as not to interfere with a normal recording of the
conditions as the miners worked. Tr. 269. His measurement was as close as possible to a full
shift, which was in the neighborhood of nine to ten hours’ time.30
Speaking to the citation, Ex. P-14, the inspector noted that it reflected that the mine had
not previously been over the noise limit. Tr. 274. In this instance, per Ex. P-14, in Column No. 6,
survey sample No. 6, it was regarding that sample that caused the inspector to issue his citation.
It pertained to the miner identified as “Jodon A,” who, the inspector believed was the shear
operator on the longwall, which was running during that shift. Tr. 275. The exposure level is
derived as an average, referred to as “a dose average” for the entire shift. Tr. 276.
The citation was issued after the inspector was again on the surface and after he performed the
check to make sure the device was still in calibration. Id.
When the inspector advised the mine’s Mr. Shaffer and Mr. Hellen of the noise results
they challenged his finding, asserting, among other grounds, that he had not performed a correct
survey or had failed to follow the program policy. Tr. 278. The mine was not conducting their
own survey that day. Tr. 279. Neither of those gentlemen were with the inspector that day;
instead Stein accompanied him. Notably, Stein did not raise any issues with the inspector about
the way he conducted his noise testing. Tr. 280. The inspector designated the violation as
“permanently disabling” on the basis that high noise levels will result in hearing loss. Tr. 281.
One person was marked as affected by the violation, as the lone miner was the only individual
the inspector found to have been exposed to noise levels above the limit. Tr. 281-82. Negligence
was marked as moderate because the operator had no administrative controls in place and didn’t
offer any noteworthy mitigating circumstances to support a low negligence designation. He
believed there was some mitigation on the basis that the operator didn’t know there was an
exceedance. Tr. 282.

30

This did not include travel to and from the portal but rather from the elevator to the
section and back. Tr. 270. Thus, the inspector maintained that his noise measurement recorded a
full shift of exposure. Id.

41 FMSHRC Page 677

Terminating the citation was complicated by the fact that the mine had started to move
their longwall and therefore replicating a normal shift could not be done. Instead, the mine
advised that they were going to try some administrative or engineering controls. Tr. 283.
The inspector ultimately gave them several weeks to try those remedies. Tr. 283-84.
However, for a citation to be terminated, MSHA had to do a follow-up survey to assure that the
noise was no longer above the violative level. Tr. 284. Such a follow-up survey was conducted
and the result was that the noise was then “quite a bit less” than the 132 percent. Id. In fact, the
same miner was tested for the follow-up.31 Id.
On cross-examination, the inspector agreed that, on the day in issue, the miners were
being tested both for dust and noise. Tr. 287. The noise dosimeter was clipped on their shirt
collar and lapel while the dust pump was on their belt. Tr. 288. The inspector did not agree that
the dosimeter was located on the miner’s chest. Tr. 290. Nor did the inspector agree that, even it
were placed on the chest, the sample would be invalid. Tr. 290-91. While testing, the inspector
does not hover near the miners being tested because the concept is to mimic a normal work
routine. Tr. 291.
Challenging his experience in conducting noise tests, the inspector informed that he had
performed at least ten prior tests. Tr. 294. Although, when checking the calibrations of the
dosimeters he did not write down the results, this was because each one he tested was within the
acceptable calibration limits, namely between 113 and 115 dBA. Tr. 294, 296. In the case of the
cited miner’s dosimeter, it tested at 114 dBA. Tr. 298. The inspector then stated that, in fact, all
seven dosimeters did test at 114 dBA, although his hand-held dosimeter device did not. Tr. 297,
299.
While seemingly equivocal at first, the inspector stated that he was sure that he did tell
his escort that the TWA32 was 132.3 percent. Tr. 300. The inspector was also sure that the
dosimeter for which he found the exceedance was tested at 114 decibels, so there was no issue
with that one at all. Tr. 304. The inspector informed that this was the first time he had issued a
citation for a mine being out of noise,33 that is, over the maximum exposure level. Tr. 307.
The inspector confirmed that he checked some potential sources for the excess noise level.
Asked if he checked the “conveyor,” he responded that “[o]ne of those was the
headgate/crusher,” adding that “the headgate dumps over onto the tail piece, so that, … is a
31

There was a small kerfuffle over the terms of the follow-up testing. The mine insisted
that only the miner who was over the noise limit had to be tested, while the inspector believed
that all six miners required re-testing. Ultimately only the one miner was retested. Tr. 285.
32

“TWA” refers to “Time-weighted average-8 hour (TWA8)” and is defined as “[t]he
sound level which, if constant over 8 hours, would result in the same noise dose as is measured.”
30 C.F.R. § 62.101, Definitions.
33

The Court took issue with Respondent’s suggestion that, because the result was
unusual, in the sense that it was the first time the inspector had such a result, the result was
inherently suspect. As the Court pointed out, under such reasoning one could never have a
violation under this standard, because it would always be the first time such a result occurred. Tr.
308-310.

41 FMSHRC Page 678

conveyer.” Tr. 312. These sources were tested with his “Edge” dosimeter. Id. He also tested the
longwall chain at the shear as it was running, finding that it was at 101 decibels. Tr. 313.
The inspector acknowledged that on the day he issued his citation there were two miners in the
same occupation. Both had the occupation code of 064, which represents that both miners were
shear operators. Tr. 313.
During the course of the noise testing that day, the inspector informed that there were
spikes in the noise, though he could not tell when, during the shift, such spikes occurred. One
such spike lasted nine minutes when there was a 90 PEL, a level, the inspector informed, to
which no one should be exposed.34 Tr. 315.
The inspector also stated that the 132 time weighted PEL is a level which exceeds the
standard because it accounts for an error factor. When the level exceeds 132, a citation is
issued.35 Tr. 320. For a very practical reason, the inspector explained why he did not try to
determine the source of the elevated noise – he didn’t know there was an excess level until he
was outside. Tr. 323. The inspector also denied that the mine’s Mr. Stein approached him,
protesting that the miner was already above 120 percent and had not even been operating the
shear yet.36 Id.
In another point of clarification, the inspector informed that no one from the mine
requested that he allow them to install the mine’s own dosimeters on the miners. Tr. 328. Though
34

Subsequently, the inspector learned that the mine had software that could inform the
time when that noise exceedance occurred, although it was his understanding that this was not
acquired until after the citation was issued and MSHA does not retain its noise records.
This practice is so that there is no confusion or conflict with other noise sample records in
the dosimeter. Tr. 318-19. Nor, the inspector clarified, did any mine employee ask for the
dosimeter records so that they could apply the software to determine the time when the
exceedances occurred. Tr. 319-20.
35

The only exception to issuing a citation is when the mine has a “P-Code.” A “P-Code”
involves a circumstance where a mine is out of compliance by having a 132. In such an event,
the mine performs a reevaluation, implementing administrative or engineering controls and
MSHA then performs another sample. If the mine is still above the allowable limit, ultimately
administrative controls have to be applied. Tr. 321. Explaining further, the inspector stated that a
P-Code means the mine is unable to meet the noise maximum of 132 or less. Tr. 322. He did not
know what the “P” stands for. Tr. 322. Delving further, use of the P-Code is an exception of
sorts, as it prevents MSHA, for a time, from issuing a “b” order. Tr. 322.
36

It must be said that many of Respondent’s questions were inconsequential or beside the
point. One such instance involved survey sample No. 1 where, on the line expressing “calibration
check” there appears a “slash” symbol before and after that. On that same line, the Court
remarked, and the inspector agreed, that it looks like all of the other marks for sample Nos. 2
through 6 all represent X’s and that the only slashes that appear on the Form 2084 relates to
survey sample No. 1. Tr. 325-326. The “X” employed by the inspector was his way of marking
that he calibrated the device both before and after testing. Tr. 326.

41 FMSHRC Page 679

the mine had no authorized administrative controls, the inspector did allow that the mine’s use of
two shear operators would be akin to an administrative control. Tr. 329. He also agreed that the
affected miner was wearing ear plugs. Id. The miner’s plugs had a noise reduction rating of 30,37
however the inspector advised that such plugs, per MSHA’s standards, mean nothing, informing
that MSHA does factor hearing protection. That is only considered if a mine is over the
permissibility level. Tr. 330. The inspector did feel it was important to determine why one shear
operator would have an 80 reading and the other a 132. To that end he did question the company.
Tr. 333.
The inspector identified Ex. R-25 as Chapter Three of the MSHA health and safety
handbook, acknowledging that he uses it as a guide for his inspection procedures. Tr. 335.
Though he read from page 3-21 of the handbook,38 the inspector did not agree that prior to
issuing a citation a two-step process is required. In that regard he pointed out that a flowchart on
the preceding page of that handbook sets forth when a citation should be issued. Tr. 337.
Rejecting the R’s claim that he skipped step two, the inspector stated that he tried to follow it,
because he inquired if there were any administrative controls before performing any noise
evaluation at the mine that day. Tr. 338. Further, he checked the mine’s bulletin board where, if
present, such controls are to be posted, but he observed there were none. Id.
On the subject of engineering controls, asked if he made a determination of any
engineering controls that weren't being maintained, the inspector informed that he had not.
However, the inspector provided a clear response to this challenge, stating that he inquired if the
operator had any engineering controls being employed and he found that there were none on the
bulletin board. Therefore, he had no engineering controls to consider. Tr. 339. Clarifying the
issue, the Court re-inquired whether it was correct that the inspector determined that there were
neither administrative nor engineering controls that were at work during that time. Tr. 340.
The inspector reaffirmed that he determined that neither was present. Id.

37

That number, 30, was derived by the inspector inquiring of the mine the type of ear
plugs it uses. He was told it was a 3M brand. From that information he got the number. Tr. 330.
Consol has a policy requiring miners to wear hearing protection; in this instance, Consol
required earplugs. Tr. 331.
38

Per that reading, he stated: “Finding that a miner's full shift noise exposure is 132
percent or more, or 156 percent for dual hearing protection or greater, a dosimeter must be used
for this finding, and finding that any one of the provisions of 62.130 or 62.140 have not been
complied with, feasible engineering and administrative controls have not been installed or
maintained, miners are not enrolled in a HCP, the hearing conversation program, operator
provided hearing protections are not being worn, administrative controls are not posted on the
mine bulletin boards, copies have not been provided to affected miners or are not being followed
or any other element of the hearing conversation program is not followed.”. … Determining
whether a citation is warranted under 62.130 for exceeding the PEL or whether a citation is
warranted under 62.140 for exceeding the dual hearing protection level is a two-step process.”
Tr. 336-37.

41 FMSHRC Page 680

Because of all the questions posed by Respondent’s counsel about the particulars of the
inspector’s actions during the testing, the Court inquired whether it correctly understood the
inspector’s protocol, expressing its understanding was that the results “are what they are.”
That is, after the inspector comes up with the testing results if someone were to claim that a
particular miner went to another location for a period of time and then returned to his normal
work location, that would not cause the inspector to discard the sampling and not issue a citation
The inspector answered, “[t]he numbers control, Your Honor.” Tr. 346-347. Continuing, the
Court then asked, “So if someone went into some other spot and was exposed to some higher
noise levels, that wouldn't cause you to say this is no good. We've got to start again; is that
correct?” Id. Again, the inspector responded, “[t]hat is correct, Your Honor.” Id.
On re-direct, returning to Ex. R-25, the inspector noted that pages were missing from that
exhibit, including an important flowchart. Tr. 352. He described the flowchart as setting forth the
steps one follows upon reaching a noise level of 132. If one determines that there are no
administrative or engineering controls, the chart directs that a citation is to be issued.
The inspector affirmed that he followed that flowchart process in this instance. Id.
The Court considers it noteworthy that on the subject of the source of the excessive noise,
the inspector informed that Consol later told him that they believed the source was the conveyor
chain. Tr. 353. This occurred after the citation was issued, and not on that day, and it was
revealed in the context of discussions about how to abate the violation. That chain was on the
longwall face and therefore the shear operator would be in close proximity to that.
Of significance to several of the Respondent’s contentions, the inspector affirmed that he is not
required to determine the noise source in order to issue a citation. Tr. 354. Simply put, that is,
appropriately, the mine operator’s responsibility.
Regarding the point that there were two different shear operators and that the noise
exposure levels were not the same for them on that day, the inspector informed that there are
always two longwall shear operators and that the different results can be attributable to “where
they are located on the shear itself. Because as the mining process of the longwall goes, you have
a headgate shear and you have a tailgate shear operator. One operates it coming up, and he has to
stay within a certain distance of that shear, and the other one operates it back down.” Tr. 355.
The inspector also reaffirmed that if the calibration checks show readings between 113
and 115, that means the dosimeter is properly calibrated and any measurements then taken are
valid samples. Tr. 355. Seeking clarity, the Court asked as a practical matter if a reading of
132.3 is of concern, given that the inspector marked the citation as “non-S&S.” The inspector
informed that it was. Tr. 360.
When back on the surface, after the sampling, Yates showed Stein the dosimeter readings
and informed that a citation would be issued, as longwall face operator miner Jodon was over the
132 noise level. Tr. 516-17. Stein asked of Yates what noise source caused the employee to go
over the limit, especially because the longwall was not operating between 11 and 11:30, when
the reading was over 120 percent. Yates could not identify the source. Tr. 517-18. Stein was
shocked about the result, especially because the longwall did not operate for the full shift.
Tr. 524. It began operating about midway through the shift. Tr. 528.

41 FMSHRC Page 681

Under cross-examination, Stein acknowledged that his notes reflected “face chain
maintenance and repairs,” which he half-heartedly agreed meant he had a hunch about the
possible noise source, answering, “I knew mechanically what was going on up there, so I just
wrote down, you know what I mean, things that -- things that were -- that I knew were going on
during the time.” Tr. 529. Further, Stein’s notes reflect, “Chain tension. Chain broke two shifts
after failed sample.” Ex. R-32. Emphasizing this point, he agreed that there were issues with the
chain on the longwall shear. Id.
In its post-hearing submissions, Consol expended significant effort addressing this
alleged violation and its stance that the citation should be vacated. R’s Br. at 16-26. The reasons
advanced in support of that contention were that “the Inspector did not complete the multi-step
MSHA prerequisites for issuing a Citation;39 the Inspector did not follow the MSHA approved
procedures for the noise sampling; the elevated sample was an aberration; the Inspector failed to
consider the impact of the noise reduction rating of the miner’s hearing protection; MSHA can
provide no basis for its 32% margin of error and cannot differentiate this from a 33% margin of
error; the MSHA Form 2000-84 does consider decimals; the 132.3% reading, even if accurate, is
within the calibration margin of error of plus or minus 1dB at 114dB; and MSHA’s recording
over/destruction of the sample and calibration results and calibrating dosimeters outside of the
presence of the operator violates Consol’s section 103 “walk-around” rights.” R’s Br. at 5.
Alternatively, Consol contends that if the citation is upheld, the negligence should be found to be
“low,” for two reasons: this was the first allegation of this type against Consol and all the other
samples were well within the permissible range, indicating that excess noise was not generally
present in the area.” Id.
Consol also advances a series of contentions alleging “several inconsistent, arbitrary and
erroneous applications of this Standard,” in an attempt to show that the standard was not
violated. Eight arguments are advanced in its brief, none of which impress the Court: that MSHA
failed to take multiple steps to determine if the standard is exceeded and did not determine the
source of the noise and whether engineering and administrative procedures were being properly
utilized; that the inspector failed to follow proper noise sampling procedures; that the exceedance
was 50% higher than all six miners on the crew, and therefore, effectively claiming that it had to
be wrong; that it improperly rejected “the NRR, which effectively reduces exposure,”
determining that it does not actually reduce the miner’s exposure; that, in a curious argument, it
objects to the leniency of MSHA’s standard for determining when a violation has occurred, when
a 100% TWA40 should result in a citation, not a sample that exceeds 32%; that MSHA’s form
doesn’t allow for decimals to be recorded and therefore the 132.3% finding cannot constitute a
violation – the amount must reach 133% for a violation to be established; that a .3% alleged
violation, referring to 132.3% figure, is material; and finally that “MSHA’s procedures of
recording over sample and calibration results and calibrating dosimeters outside of the presence
39

Consol challenged the inspector’s credibility but the Court wants to make it clear that it
found the inspector credible in his testimony regarding this citation. The Court’s remarks to the
inspector during the hearing were simply to guide the inspector as to the proper method to follow
when responding to questions upon cross-examination. Accordingly, the Court rejects the
various claims made by the Respondent, calling into question the inspector’s credibility. See,
e.g., R’s Br. at 17-18.

41 FMSHRC Page 682

of the operator violates Consol’s section 103 “walkaround” rights.” R’s Br. at 18-19. Each of
these arguments are rejected as non-meritorious.
In support of its various challenges, Consol first points to what it describes as “[t]he
leading case on noise exposure,” Highland Mining, 35 FMSHRC 221 (Jan. 2013) (ALJ).41
However, it notes that the court reasoned that if the maximum amount is exceeded, there is a
violation. Id. at 19. The Court notes that this is still the case, subject to any valid defenses.
Consol attempts to distinguish this matter from that presented in Highland but, as explained, its
arguments are insufficient. Consol asserts that once an exceedance has occurred, “MSHA must
determine the source of the noise to determine if all feasible engineering controls were being
used.” Id. This is not the case; determining the source of the noise is upon the operator.
Consol also refers to the Compliance Guide to MSHA’s Occupational Noise Exposure
Standard, R-27, but that reference is in the context of determining if all feasible controls have
been employed, not to determine if a violation occurred. Thus, the context in that situation is
how to then deal with the problem, not whether one has occurred. Figuratively, Consol’s
argument has the cart before the horse, as it has made a fundamental misreading of the
requirements and the Compliance Guide.
Some of Consol’s other contentions barely deserve mention. For example, at hearing and
in its brief, it notes this noise exceedance citation was a first at this mine. But, as noted earlier, if
that were the test, no first violation would ever be a violation because it had not happened
before.42 There is also some irony in Consol’s pointing to Highland because a loose chain was
involved in that case. In this matter it is likely that the culprit was also a loose chain, though
Consol tries to distance itself from its “offered [ ] possible source.” R’s Br. at 22. To be clear,
Consol’s “offered possible source” was a loose chain.
Consol’s assertions that the inspector improperly attached the microphones and that he
tested over a period of 9-10 hours, instead of eight hours are rejected. The Court finds as fact that
the microphones were properly attached and notes that a longer sampling time would assist, not
hinder, the results, as it is a time weighted average. The remainder of Consol’s contentions are
unpersuasive. These include the argument that by allowing a 32% margin of error, MSHA
effectively concedes its sampling is not reliable, that decimals don’t count if one is above 132%,
and being only .3% above calls into question the inspector’s dosimeter calibrations.

41

As the Respondent describes the Highland Mining decision as the “leading case on
noise exposure,” and as this Court issued that decision, it is hard to find fault with the
Respondent’s keen characterization.
42

A variation on this theme, is Consol’s “aberration” contention. It is similarly rejected.
Consol’s “But wait, the miner was wearing earplugs,” argument also misses the mark, as noted in
the Court’s Highland decision and acknowledged by Consol. R’s Br. at 23. See also, Highland
Mining, 35 FMSHRC at 237-38.

41 FMSHRC Page 683

Consol finishes with its contention that “MSHA’s practice of recording over the noise samples
violates Consol’s right to have access to the evidence and violates Consol’s section 103 walk
around rights,” is a misapplication of walk around rights.43
Stein was with the issuing inspector on that day, January 24, 2018, the day Inspector
Yates was doing noise sampling on the 3A longwall. Tr. 451. Stein stated that the dosimeters
were attached “right at their collar … below your chin at your chest.” Tr. 453. The microphone
was “pointing towards [the miner’s] ear. Id. The placement was consistent with past practice in
affixing the dosimeters. Tr. 454. Stein is not the mine’s noise coordinator. Id. Stein recalled that
the inspector told the miners not to yell into the microphone but could not recall about other
practices, such as whistling. Stein agreed that the miners also had on dust monitors that day and
that they were placed on their belts. Tr. 456. The dust pump hose ended near the near the
dosimeter location, about within three inches of it. Id. Stein could not recall if both devices were
located on the same side of the miners’ vests. Tr. 457.
On that day, Stein informed that the longwall didn’t start running until 11:30 or 12:00,
whereas their shift started at 8:00 a.m. Tr. 458. Before the longwall started, the miners were
likely doing various tasks, such as changing hoses, and helping mechanics. Tr. 459. Stein could
not recall if the inspector checked the miners’ dosimeters, but he did recall that Yates was
checking his own readings on his device. Tr. 460. However, Stein recalled that miner Austin
Jodon, aka “Skinny,” spoke to him informing that his dosimeter was already at 124. This was
significant because they both knew one can only get to 132.2. Tr. 460. Stein did not mention the
issue at that time, but after all the readings were done, that is, after the testing was done, and they
had walked back out, he then spoke to Yates about it. Tr. 461. To be clear Stein was referring to
the time just before the longwall started up, not the end of the shift. Tr. 462. In Stein’s
estimation, though purely speculation on his part, the inspector did not grasp what he was being
told and only Skinny, none of the other miners, had readings anywhere near that reading.
Tr. 462, 463. Stein informed that the inspector did not invite him to come to his car when he
calibrated the dosimeters, but he rejected the suggestion that he would feel uncomfortable about
joining him during the calibration check, stating, “[y]eah. We get along with all of them pretty
good.” Tr. 467.
On cross-examination, directing Stein to Ex. R-21, at paragraph 5, ostensibly his notes,
Stein informed those were not his notes and he denied saying at the time of the inspection that
they were his notes. Tr. 470. Stein allowed they could be notes from Shaffer or Helen, but he did
not know the author. Tr. 471. Regardless, he agreed that the notes do not relate that Austin Jodon
came to him or anyone else to raise the issue of the noise level. Tr. 471. Yet the notes for R-21
claim: “Employee that went out of compliance was 124 percent of dose of the 132 percent
dosimeter at approximately 11:30 a.m. when checked by safety personnel.” Tr. 471. Nor, Stein
agreed, do the notes reflect that Jodon came up to the inspector about this issue. Tr. 472. As for
Stein, as he didn’t receive a citation that day, he had no recorded notes. Tr. 472.
43

The Court is of the view that Consol’s citations to Big Ridge, Inc., 36 FMSHRC 1677,
1730 (Jun. 2014) (ALJ), and DJB Welding Corp., 32 FMSHRC 728, 733, 735 (June 2010) (ALJ)
are neither persuasive nor useful authority, as they do not involve noise violations and, more
fundamentally, the facts involved here do not translate to those cases.

41 FMSHRC Page 684

Yet, he acknowledged that at some point on the day of the noise testing he knew that one of his
miners was at 124%. Id. Further, he agreed that he didn’t remove the miner from the mine, nor
did he notify the longwall boss. Id. All of this occurred, Stein conceded, before the longwall had
started up. Id. He did not notify the longwall boss that a miner was close to the PEL. And on the
day of the testing Stein did not raise any issue with the readings taken. Tr. 473.
The Secretary’s Brief asserts that all the dosimeters were properly calibrated. He notes
that on the date of the testing, shearer operator Austin Jodon’s dosimeter recorded a timeweighted average exposure for his shift of 132.3%, exceeding the PEL by 32.3%, and exceeding
the standard by 0.3%. Sec’s Br. at 23-26, citing Exhibit P-14. Inspector Yates issued the citation
based on this time-weighted average for Mr. Jodon. Inspector Yates only issued Citation No.
9077096 after he had checked the calibration of the dosimeters at the end of the sampling period.
The Secretary also notes that at the time of the impermissible exposure, Respondent did
not have any administrative controls in place for noise exposure, nor any engineering controls.
He further observes that on February 5, 2018, after performing his own investigation,
Respondent’s witness, respirable dust coordinator and noise coordinator Troy Hellen, wrote a
letter to Mr. Jodon explaining that he had been exposed to excessive noise and that he believed it
“may have come from the face chain” due to excessive wear. Id.
The Secretary’s Brief also contends that Inspector Yates’ issuance of the citation was
consistent with the Coal Mine Health Inspection Procedures Handbook because it is undisputed
that Respondent had no engineering or administrative controls in place at the time of issuance.
Respondent did not present any evidence to the contrary. Although Respondent conveniently
omitted the proceeding pages’ flowchart, this flowchart is publicly available and illustrates that
Inspector Yates properly issued Citation No. 9077096.44
Respondent omitted this flowchart from Exhibit R-25. Further, Respondent’s tortured
quizzing of Inspector Yates on various MSHA manuals, and Respondent’s unsuccessful attempts
to shift the blame for their violation onto Inspector Yates are red herrings: Respondent violated
30 C.F.R. § 62.130(a). Indeed, this very Court has affirmed a violation of § 62.130(a) based on a
miner’s exposure to time-weighted average noise above 132% of the PEL. Highland Mining Co.
LLC, 35 FMSHRC 221, 241 (Jan. 2013) (ALJ Moran). At least one other Commission ALJ has
done the same. Tripple H Coal, LLC, 35 FMSHRC 165, 169 (Jan. 2013) (ALJ).
Regarding the penalty to be imposed, speaking to gravity, the Secretary notes that the
expected injury from excessive noise exposure is permanently disabling hearing loss, with one
person being affected by the violation – the over-exposed miner, Mr. Jodon. As for negligence,
the Secretary notes that the Respondent’s witness Hellen testified that the likely source of the
excessive noise was excessive wear on the headgate conveyor chain and that the issue is not
44

The Court takes official notice of the flowchart, which originates from the same exhibit
offered by the Respondent but was not included in that exhibit. It is attached in the appendix to
this decision. The flowchart is, as the Secretary notes, publicly available. See, U.S. DEP’T OF
LABOR, PH89-V-1 (15), COAL MINE HEALTH INSPECTION PROCEDURES HANDBOOK, CHAPTER 3 –
NOISE 3-20 (2008). Inspector Yates correctly followed this flowchart when deciding whether to
issue the citation.

41 FMSHRC Page 685

unusual, as the mine changes damaged chain flights every shift. From this, the Secretary
contends that not all feasible engineering controls were applied. Sec Br. at 28.
The Secretary then asserts that “several members of the Harvey Mine safety department
were aware that Mr. Jodon was at risk of possible excessive noise exposure during the full-shift
sampling that day, but took no action to address the miner’s noise exposure.” Id. Supporting its
charge that the mine knew there was an issue but did nothing, the Secretary points to Hellen’s
testimony that Jodon’s dosimeter was already at 128% of the PEL by 11:00 a.m., a fact he had
learned from another member of the safety department.
The Secretary also observes that the mines’ safety inspector, Stein, testified that Mr.
Jodon brought it to his attention that he was at 124 percent already at approximately 11:30 a.m.
And the Secretary adds that this is not simply the Secretary’s construction of the testimony, as
the operator’s knowledge is also reflected in Mr. Hellen’s handwritten notes from January 24,
2018, per Ex. R-33. Mr. Hellen’s typewritten notes about the subsequent citation, Ex. R-21, and
safety inspector Chase Shaffer’s handwritten notes from the same evening, Ex. R-32, each state
that Mr. Jodon was at either 124% or 128% of the PEL between 11:00 and 11:30 a.m. during the
shift in question. Id.
Respondent also did not have, much less follow, any administrative controls. Inspector
Yates gave as examples of administrative controls changing a miner’s schedule or assignment to
reduce or prevent their exposure to excessive noise. Despite the safety department’s knowledge
that Mr. Jodon was fast approaching 132% of the PEL before he even replaced the shearer
operator around 1:00 p.m., the operator remarkably did not remove him from the section or alert
the foreman, but instead continued to expose him to excessive noise as he operated the longwall
shearer with damaged conveyor chains. Therefore the Secretary contends that the Respondent’s
negligence was at least moderate. Sec. Br. at 29.
Analysis of Citation No. 9077096
Much of the discussion was incorporated in the foregoing, which included many aspects
of the Respondent’s contentions regarding this citation. Pursuant to that prior discussion, this
citation is affirmed, leaving the determination of the appropriate penalty. To recap, the citation
was marked as non S&S, the injury or illness, as unlikely, but if it occurred, as permanently
disabling, and the negligence listed as moderate. Although the Respondent alternatively sought
to have the negligence listed as “low,” this cannot be justified, as the Respondent was not at a
loss about the potential source for the excess noise. Based on the credible evidence, each of these
evaluations by the inspector is affirmed. The Secretary seeks to have the proposed penalty of
$191.00 affirmed and the Court agrees that amount is appropriate and it is so imposed.

41 FMSHRC Page 686

Citation No. 9077098
Citation No. 9077098, Exhibit P-15, alleges a violation of 30 C.F.R. § 75.333(h),
concerning a ventilation return & intake issue. The Respondent seeks to have the citation listed
as not affecting 10 miners.45
The cited standard46 requires that ventilation controls, including seals, shall be
maintained. Noting that the provision requires that the operator maintain such controls for the
purpose that they were built, the inspector explained that such controls include “[v]entilation
controls… [and these involve] stoppings, bradishes, walls.” Tr. 363. Their purpose is to “separate
[ ] airways and keep [ ] them in a sealed location, so no two airways are intermixing or mingling.
If it's either return air coming out or intake air coming in, neither one [is to] have an opportunity
to mix.” Id.
The inspector described the condition he found as follows: “the stopping located on 7
north main's primary escapeway at 28 wall and 26 wall were not being maintained to serve the
purpose for which they were built. The stopping at 28 wall had a hole measuring three inches by
seven inches. The stopping at 26 wall had a ten-inch pipe left open, which allowed air from the
intake to bypass into the return in this area.” Tr. 364. The violation was the result of the
stoppings not being maintained in that the airways between them were not sealed. The design is
to prevent air from the primary escapeway going over to the return. Id. These stoppings were in
cross-cuts between two separate, parallel, entries. Tr. 363-64. The inspector noted that an
escapeway’s use may represent miners last hope to get outside and it is for that reason that
MSHA enforces the requirements rigorously. Tr. 365. In this case the escapeway was for the 7
north mains, a working section and the escapeway must be located at least at the loading point to
the return shaft, or to the intake shaft. Id. As it relates to a working section, all of the miners in
that area would be located there, and typically that means ten miners. Id.
The inspector took photographs of the conditions he observed. Ex. P-16. By the
inspector’s description, Ex. P-16A, a photograph, shows that the stopping has eroded allowing
the intake air into the course of the return. Tr. 366. He confirmed that the damaged area of the
stopping is in the middle of that photo, where one can see rock or coal beyond. In the photo, the
top area on the rib is the darker black; above that, it is white and this is due to rock dust. Tr. 367.
The inspector took the photo while standing in the primary escapeway with the hole going
towards the return. Tr. 368. Properly maintained, there would be no hole present. Tr. 369.
The hole created noise from the air coming through it and the inspector described the noise as
similar to an airplane motor, such as a jet. Id. Accordingly, the inspector confirmed that the noise
was quite loud. Id. The air was traveling from the primary, through the hole, and then to the
45

The Respondent in its posthearing brief did not specify an alternative number of miners
that would suffer an injury due to the violation, mainly that the Secretary failed to prove that ten
miners would be affected. R’s Brief at 39.
46

30 C.F.R. § 75.333(h), addressing ventilation controls, provides at subsection (h) that
“[a]ll ventilation controls, including seals, shall be maintained to serve the purpose for which
they were built.”

41 FMSHRC Page 687

return. Id. Directed to Ex. P-16B, another photograph, the inspector informed that the black area,
in the top third of the photo and extending out in a V shape is the hole he cited. Tr. 370-71.
Ex. P-16D, another photo, pertains to a different area on the same escapeway, two cross
cuts away from the first photograph. It shows a ten-inch metal pipe that allowed air to bypass
into the return entry. Tr. 373. The air at that location was leaving the intake and entering into the
return. Although it was noticeable and one could hear the air moving, according to the inspector,
it was not as loud as the other location. Tr. 374. The inspector marked the violation as moderate
negligence. His reasoning was his belief that any examiner should have been able to notice that
this pipe was open, as one could see that during a visual exam. The area is walked weekly. He
learned from Mr. Shaffer that the load center that this pipe was ventilating was removed over the
Christmas shutdown, and the citation was issued in January. There was confirmation of this
later, when he was on the outside of the mine and noticed while reviewing the weekly exams that
the exam had been conducted at least two more times since the load center has been removed.
Once the mine removed the load center, the operator sealed the entrance from the adjacent entry
into the intake, but the cited area had been left open. Tr. 375-76.
For the earlier ventilation issue he testified about and for which he also designated the
negligence as moderate, he believed that was appropriate because one could definitely hear the
sound from the air. Tr. 376. The inspector believed that the hole in the stopping at the 28 wall
had been there for an extended time “due to the fact of how long it would take to deteriorate that
rock and that rib. It is rock. It is not coal. It just doesn't want to peel out as easily as coal or
deteriorate as fast. I believe the air helped cut that rock away.” While he could not be precise
about the time it had existed, its size informed him that the time was an extended period.
Tr. 377-78; Exs. P-16A–C.
Nevertheless, and though a different topic, he marked the citation as non-S&S and
unlikely. He explained that it was “[b]ecause it is intake air going into the return, so the
likelihood of your two returns, your return coming back over, would only happen in the
event that the fan went down or a major mining disaster, which we have to consider when we
look at lifelines and escapeways …” Tr. 378. Though unlikely to occur, if it were to happen, he
considered it as “permanently disabling,” because of traveling in smoke and the attendant smoke
inhalation. In such a circumstance, whatever was in the smoke or fire would be traveling down
the return, whether that was carbon monoxide, coal or hydraulic fluid. Tr. 379. Ten miners were
listed as affected for a simple reason – that is the number that go out the intake to escape.
Tr. 380. Both the intake and the secondary escapeway are to have clean or neutral air. Id.

41 FMSHRC Page 688

On cross-examination, the inspector informed that the photographs he took were not
zoomed in. Tr. 381. He acknowledged that it was possible that the condition could have occurred
fairly recently. Tr. 382. He also agreed that the mine examiner, in performing his weekly exam,
has a lot of ground to cover during that time, and that the two conditions he found were in a
cross-cut. Id. The pipe issue was abated by having it covered and capped.47 Tr. 383. The
inspector believed that the nearest working section from the cited conditions would be about 100
breaks. Tr. 386.
For this matter, the Respondent remarks that only two small voids were involved in the
stoppings at the 26 and 28 wall located along the 7 north mains primary escapeway.
Further, Respondent notes,
[t]he air was moving from the intake air course to the return air course [and] [t]he
miners working in the primary escapeway were never exposed to contaminated
air, nor did air the air travel from the return to the intake. Under these
circumstances, there is no adverse condition that would develop and could be
expected to affect ten (10) miners.
R’s Br. at 6. Under these circumstances, Respondent contends that any injury should be
described as lost workdays or restricted duty. Id. at 6. A primary contention by the Respondent is
that the intake air was traveling along that course and then to the return, as it should be.
Thus, there was no claim that return air was making its way into the intake course. Yet, it was the
inspector’s concern that such return air could enter the intake air course. R’s Br. at 38. Consol
asserts that the inspector admitted that contamination of the primary escapeway was unlikely and
that only one person, not ten, works in the cited area, which area itself was some 100 breaks
outby the working section. Id.
The Secretary contends that “in the unlikely event of a mine emergency and the air
changing direction, smoke and toxic fumes leaking from the return into the primary escapeway
could cause permanently disabling injuries to up to ten miners.” Sec. Br. at 31. At the time of the
citation, the mine was idle, Tr. 548, and the Inspector failed to identify the 10 miners who were
affected. Tr. 380. Rather, the Secretary seems to assert that certain miners affected might be
working downwind at some point in the future. Tr. 548. However, since the mine was idle at the
time of the citation, the number of miners who were affected should not include these persons.
The Secretary did not present evidence that this citation would affect any such miners. Of course,
because the number of miners is easy to manipulate, it is important that such an assertion be
47

Asked about the air quantity in the 7 north mains and the quantity of air that was
coursing through the primary escapeway when the weekly exam was being conducted, the
inspector answered, 179,200. Tr. 385, citing Ex. R-31, at 1.12-13. The Court sought clarification
about this inquiry, asking if that reflected the quantity of air in the return. The inspector
responded that it reflected the quantity in the last open cross-cut to the 7 north mains. Tr. 384385. With that, the Court asked what that meant. The inspector informed that it reflected that the
mine took an air reading in the last open cross-cut, which showed how much air is traveling
through the face on each side. It reflected air quantities of 120,300 and 36,564. Tr. 385. Though
the quantity was much higher in the intake, that figure takes into account the track air. Id.

41 FMSHRC Page 689

supported by facts. See, e.g. Marfork Coal Co., 35 FMSHRC 738, 740 (2013) (ALJ) (“Given that
the number of persons affected is a way to easily manipulate the penalty, it is important that
relevant facts accompany such reduction.”). Normally, the number of persons affected is the
number affected at the time of the citation. See, e.g. River View Coal, LLC, 38 FMSHRC 1771,
1779 (2016) (ALJ) (“At the time of the citation, there were four miners working downwind from
the machine.”). In this case, the number affected should be an examiner (one) who might be
downwind during this idle shift checking air and methane.
For its part the Secretary contends that the cited seals at 26 and 28 wall were built for the
purpose of keeping the clean, intake air in the primary escapeway separate from the parallel entry
return air course with air that has ventilated the face. Therefore, the seals were not serving their
purpose. Sec. Br. at 30. The Secretary also notes that the citation was appropriately designated
as non-S&S and unlikely because the clean intake air from the primary escapeway was leaking
through the damaged seals into the return air course, and not vice versa. However, in the unlikely
event of a mine emergency and the air changing direction, smoke and toxic fumes leaking from
the return into the primary escapeway could cause permanently disabling injuries to up to ten
miners inby. Id at 31.
Speaking to negligence, the Secretary notes that examiners travel these areas weekly and
that Inspector Yates, after observing the conditions, returned to the surface and reviewed the
weekly exams, which reflected that examiners had walked the area at least twice since the load
center was moved. The hole at 28-wall also appeared to have developed over an extended period
of time and was loud enough to be heard from at least 50 feet away and thus there is an issue of
its obviousness. The Secretary further notes that the Respondent’s witness, safety inspector
Shaffer, admitted that the exposure of the coal rib to the mine air likely caused the coal around
the stopping to deteriorate over an extended period time, and not overnight.
Therefore, the Secretary contends that moderate negligence is appropriate because the Operator
either knew or should have known of the deteriorated ventilation controls. Id.
Based on those considerations, the Secretary maintains that, using the six statutory
criteria, MSHA’s proposed civil penalty of $880.00 remains appropriate. Sec. Br. at 31.
Analysis of Citation No. 9077098
In this section 104(a) citation, the fact of violation is not contested. The gravity was listed
as unlikely, and non-S&S, but permanently disabling, with ten persons affected, while the
negligence was marked as moderate. Based on the foregoing recounting of the credible evidence,
the Court concludes that each of those designations are appropriate, with some qualifications.
The Court has considered the Respondent’s contention that one person, not ten would be
affected, but in the context of continued normal mining operations, the testimony was unrefuted
that ten miners would go out the intake to escape.
However, these conclusions do not translate into a finding that it is appropriate to impose
the same penalty as was proposed under Part 100. The Commission and its judges make such
determinations based on the statutory criteria and the attendant facts found for a given violation.
The chief reason for this is that the air was traveling from the intake into the return, not the

41 FMSHRC Page 690

opposite of that. While the Secretary speaks of the unlikely event of a mine emergency and the
air changing direction with smoke and toxic fumes leaking from the return into the primary
escapeway, there was no testimony explaining how that could occur nor how likely such an event
could occur. Further, the two voids were quite small, not gaping breaches, and there was no
testimony establishing that they could have such a profound impact. Given these considerations
the Court concludes that under these particular circumstances, the appropriate civil penalty is
$293.00.
Summary of penalties imposed
Because of the large number of citations at issue in this matter, the Court summarizes the
following modifications and penalties described in detail above:
Citation No. 9076610, involves the absence of reflectors outside unsupported roof, for which
Respondent admits the violation but seeks to have the citation listed as non-S&S, unlikely and
low negligence. For the reasons discussed, supra, the inspector’s findings are affirmed and the
proposed penalty imposed by Secretary of $638.00 is independently determined by the Court to
be appropriate.
Citation No. 9077085 is the winch cable issue on the Caterpillar duckbill battery scoop, for
which Respondent seeks to have the citation listed as non-S&S, unlikely and low negligence. For
the reasons discussed, supra, the inspector’s findings are affirmed and the proposed penalty
imposed by Secretary of $953.00 is independently determined by the Court to be appropriate.
Citation No. 9077083, involving holes in a 480 volt power cable for a scoop charger, the Court
finds that, applying the six statutory criteria, a penalty in the amount of $100.00 is imposed.
The Citation is to be modified to reflect “low” negligence.
Citation No. 9077086 involves the requirement for all stationary electric apparatus to be shown
on a mine map. The Court finds that, applying the six statutory criteria, a penalty in the amount
of $29.00 is imposed. The Citation is also to be modified to reflect “none” for negligence.
Citation No. 9077087 involves a lack of ATRS certification. The Court finds that, applying the
six statutory criteria, a penalty in the amount of $59.00 is imposed. The Citation is also to be
modified to reflect “low” negligence.
Citation No. 9077091, involving the Jeep “cable” issue, cites 75.1725(a). The Court finds that,
applying the six statutory criteria for this S&S violation involving moderate negligence, it is
properly assessed at $638.00.
Citation No. 9077089, involving a cable with two holes in its outer jacket, cites 75.517.
The Court finds that, the six statutory criteria for this non-S&S violation involving low
negligence, it is properly assessed the amount proposed by MSHA of $319.00.
Citation No. 9077092 is the missing signature violation regarding certifying training and drills.
The Court finds that, applying the six statutory criteria for this non-S&S violation involving low
negligence, it is properly assessed at $39.00.

41 FMSHRC Page 691

Citation No. 9077095, citing 30 C.F.R. § 75.514, involves a defective splice. The Secretary
sought a civil penalty of $429.00 and the Court imposes the same amount.
Citation No. 9077096 cited a noise exposure violation. The Secretary sought a civil penalty of
$191.00 and the Court imposes the same amount.
Citation No. 9077098 pertains to ventilation return and intake breaches. Taking into account the
particular facts, the Court has imposed a civil penalty of $293.00 for this violation.
ORDER
It is hereby ORDERED that Respondent is ORDERED to pay a civil penalty in the total
amount $3,688.00 within 30 days of this decision.48
It is FURTHER ORDERED that the citations be MODIFIED in accordance with the
terms contained herein.

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

Distribution
Brian P. Krier, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 170 S.
Independence Mall West, Suite 630E, The Curtis Center, Philadelphia, PA 19106
James P. McHugh, Esq., Hardy Pence PLLC, P.O. Box 2548, Charleston, WV 25329

48

Payment is to be sent to: Mine Safety and Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.

41 FMSHRC Page 692

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9900 / FAX: 202-434-9949

November 4, 2019
STAR QUARRIES LLC,
Contestant

CONTEST PROCEEDINGS
Docket No. SE 2019-0063-RM
Order No. 9425093; 12/19/2018
Docket No. SE 2019-0064-RM
Order No. 9425094; 12/19/2018

v.

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

Docket No. SE 2019-0065-RM
Order No. 9425096; 12/20/2018
Mine: Star Quarries
Mine ID: 08-01103
CIVIL PENALTY PROCEEDING
Docket No. SE 2019-0091
A.C. No. 08-01103-483379

v.
STAR QUARRIES LLC,
Respondent

Mine: Star Quarries

DECISION APPROVING SETTLEMENT
ORDER TO MODIFY
ORDER TO PAY
Before:

Judge McCarthy

This case is before the undersigned upon Notices of Contest and a Petition for the
Assessment of Civil Penalty under section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(d). The Solicitor has filed a motion to approve settlement proposing a
reduction in the penalties from $1,791.00 to $789.00. The Solicitor states that Citation No.
9425093 has been vacated. The Secretary’s discretion to vacate a citation or order is not subject
to review. E.g., RBK Constr. Inc., 15 FMSHRC 2099 (Oct. 1993). The Solicitor also requests
that:
Citation No. 9425094 be modified to reduce the likelihood of injury or illness from
reasonably likely to unlikely and to remove the designation of significant and substantial; and

41 FMSHRC Page 693

Citation No. 9425096 be modified to reduce the level of negligence from moderate to low and
the likelihood of injury or illness from reasonably likely to unlikely and to remove the
designation of significant and substantial.
In the settlement motion, the Solicitor contends that the Secretary has the “unreviewable
discretion to withdraw” a designation of significant and substantial. Settlement Mot. at 3 (citing
Mechanicsville Concrete, Inc., 18 FMSHRC 877, 879 (June 1996)). However, the Solicitor
presents an overbroad reading of Mechanicsville. In Mechanicsville, The Commission addressed
whether a Commission administrative law judge could sua sponte designate a violation as
significant and substantial when the Secretary had not designated a violation as significant and
substantial. The Commission ruled that there is “no material difference between the Secretary’s
discretion . . . on the one hand to vacate a citation and his discretion on the other hand not to
issue a citation in the first instance or not to designate a citation as [significant and substantial].”
Mechanicsville Concrete, Inc., 18 FMSHRC at 879. The Commission iterated that the
designation of a violation as significant and substantial “in the first instance” is a prosecutorial
decision akin to the decision to vacate a citation. Id. at 880.
However, Mechanicsville does not address situations—such as here—where the Secretary
has already exercised his discretion to designate a violation as significant and substantial and
now the parties come before a Commission judge to approve a settlement. This situation fits
squarely within the plain language of section 110(k) of the Mine Act. Section 110(k) states that
“[n]o proposed penalty which has been contested before the Commission under section 105(a)
shall be compromised, mitigated, or settled except with the approval of the Commission.” The
matter before the undersigned involves the parties’ request for “the approval of the Commission”
to “compromise[], mitigate[], or settle[]” a violation already designated as significant and
substantial. That’s a far cry from supplanting the Secretary’s discretion through an authorized
representative to designate a violation as significant and substantial in the first instance.
Accordingly, the undersigned rejects the Solicitor’s contention that the Secretary has the
unreviewable discretion to remove a designation of significant and substantial.
The Secretary also argues that “[t]he Secretary’s use of [the 30 C.F.R. § 100.3] regular
assessment tables in settlement is a prima facie indication that the penalty reduction is fair,
reasonable, and adequate under the facts, and protects the public interest.” Settlement Mot. at 45. However, not only is the Commission not bound by 30 C.F.R. § 100.3, but it is the purview of
the Commission—not the Secretary or regulations issued by the Secretary—to determine
whether a settlement is appropriate under the criteria set forth in section 110(i) of the Act.
Sellersburg Stone Co., v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984) (“[N]either the ALJ
nor the Commission is bound by the Secretary’s proposed penalties. . . . [W]e find no basis upon
which to conclude that these MSHA [penalty] regulations also govern the Commission.”);
Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3101 (Dec. 2014) (“The Secretary’s regulations
at 30 C.F.R. Part 100 apply only to the Secretary’s penalty proposals, while the Commission
exercises independent ‘authority to assess all civil penalties provided [under the Act]’ by
applying the six criteria set forth in section 110(i).” (quoting 30 U.S.C. § 820(i))).
In order to overcome its burden the Secretary must present evidence to a judge—
exercising his or her independent authority—to satisfy the six criteria set forth in section 110(i).

41 FMSHRC Page 694

Simply pointing to its own regulations does not overcome this burden. Therefore, the
undersigned rejects the Solicitor’s contention that the application of § 100.3 establishes a prima
facie case for a reasonable settlement.
Consequently, the undersigned evaluated the settlement agreement absent the arguments
rejected above.
The undersigned considered the representations and documentation submitted in this
case. Despite the fallacy of the Secretary’s legal arguments noted and rejected above, the
undersigned concludes that the proffered settlement is fair, reasonable, appropriate under the
facts, and protects the public interest under The American Coal Co., 38 FMSHRC 1972, 1976
(Aug. 2016), and is appropriate under the criteria set forth in section 110(i) of the Act. The
settlement amounts are as follows:
Citation No. Assessment Settlement
9425093
$181.00
$0.00
9425094
$902.00
$631.00
9425096
$708.00
$158.00
$1,791.00
$789.00

WHEREFORE, the motion for approval of settlement is GRANTED.
It is ORDERED that Citation No. 9425094 be MODIFIED to reduce the likelihood of
injury or illness from reasonably likely to unlikely and to remove the designation of significant
and substantial.
It is ORDERED that Citation No. 9425096 be MODIFIED to reduce the level of
negligence from moderate to low and the likelihood of injury or illness from reasonably likely to
unlikely and to remove the designation of significant and substantial.
It is further ORDERED that the operator pay a total penalty of $789.00 within thirty
days of this order.1

/s/ Thomas P. McCarthy
Thomas P. McCarthy
Administrative Law Judge

1

Payment should be sent to: Mine Safety & Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.

41 FMSHRC Page 695

Distribution:
Rachel L. Graeber
U.S. Department of Labor
Office of the Solicitor
61 Forsyth Street, S.W.
Room 7T10
Atlanta, GA 30303
David A. Stewart
Ryan Incorporated Southern
1700 S. Powerline Road
Suite H
Deerfield Beach, FL 33442
/ztb

41 FMSHRC Page 696

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

November 5, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of ANTHONY VEGA
Complainant,

DISCRIMINATION PROCEEDING
Docket No. WEST 2018-0223 - DM
MSHA Case No. WE MD 18-02
Mine: Napa Quarry
Mine ID: 04-00023

v.
SYAR INDUSTRIES, INC.,
Respondent.

DECISION AND ORDER
Appearances:

Abigail G. Daquiz, Esq., Verónica Meléndez, Esq., U.S. Department of
Labor, Office of the Solicitor, San Francisco, CA, for Complainant
Bradley B. Johnson, Esq., Harrison, Temblador, Hungerford, and Johnson,
LLP, Sacramento, CA, for Respondent
Michael D. Corrigan, Esq., Syar Industries, Inc., Napa, CA, for
Respondent

Before:

Judge L. Zane Gill
I. STATEMENT OF THE CASE

This proceeding arises from section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977 (“Mine Act” or “Act”), 30 U.S.C. § 815(c)(3). The Secretary of Labor (MSHA) on
behalf of Anthony Vega, and Anthony Vega himself, allege here that Syar Industries terminated
his employment as a heavy equipment mechanic at Syar Industries’ Napa, California quarry and
shop because he engaged in protected activity. Respondent argues that Vega has failed to meet
his burden to establish a prima facie case because no adverse employment action was taken
against him and, even if Vega’s termination were deemed adverse employment action, there is no
causal nexus between the adverse action and the protected activity.
For the reasons that follow, I find that Vega engaged in section 105(c) protected activities
and that his termination was an adverse action. However, I find that there is insufficient evidence
to infer a causal nexus between Vega’s protected activities and his termination. For this reason, I
find that Vega has failed to state a prima facie case for a section 105(c)(3) discrimination claim.
Even if Vega were to have met his prima facie burden, ultimately, I also find that Respondent
has provided evidence sufficient to rebut the prima facie case and affirmatively defend its claim
that Vega’s termination was motivated by unprotected activity.

41 FMSHRC Page 697

II. STIPULATIONS
The parties’ joint prehearing statement dated October 18, 2018, included the following
stipulations:1
1. Respondent is subject to the jurisdiction of the Federal Mind Safety and Health Act of
1977, found at 30 U.S.C. § 801, et seq.
2. Jurisdiction exists because Respondent is, and was at all times relevant to this
proceeding, an operator of a mine, as defined in Section 3(b) of the Mine Act, found at
30 C.F.R. Section 803(b), and the products of the subject mine entered into the stream of
commerce or the operations thereof affected commerce within the meaning and scope of
Section 4 of the Act, found at 30 U.S.C. § 803.
3. The Federal Mine Safety and Health Review Commission and this administrative law
judge have jurisdiction over this proceeding, pursuant to Section 105 of the Mine Act.
4. Respondent is and was, at all times relevant to this proceeding, engaged in mining
activities at the Napa quarry, including the Napa shop, located in or near Napa,
California, Mine ID Number 04-00023.
5. This proceeding was initiated by a timely complaint submitted by Anthony J. Vega
under Section 105(c) of the Mine Act, known as ‘the Vega complaint,” which complaint
may be admitted into evidence for the purpose of establishing its issuance.
6. The penalties proposed by the Secretary in this proceeding will not affect Respondent's
ability to continue in business.
7. Mr. Vega began working for Respondent Syar in 1995.
8. Mr. Vega served as the miners’ representative for Respondent Syar at the Napa shop
from at least January 1, 2017, through the day his employment was terminated.
9. Mr. Vega served as the union steward for Operating Engineers Local from at least
January 1, 2017, through the day his employment was terminated.
10. In July, August, and September of 2017, Mr. Vega wrote on the outside of some
envelopes containing pay stubs and paychecks located on the reception counter of the
Napa quarry offices where employees from both the Napa quarry and Napa shop sign in
and out on a daily basis. Mr. Vega wrote the following messages on envelopes of his
coworkers: “Thanks for all your good work - RT”; “I know I don’t say this often
enough, I am glad you are on board with us. Keep up the good work. - RT”; “There is
nothing more pleasing than hearing the sound of your voice over the radio in the
1

A fourteenth stipulation noting Vega’s hourly rate, fringe benefits, and missed
workdays has been excluded for relevance.

41 FMSHRC Page 698

morning - RT”; “I see greatness in your future here at Syar - RT”; “Doing a great job
Jose - RT”; “if it wasn’t for you and Tyler, I don’t know how I would run this show! RT.”
11. Respondent Syar terminated Mr. Vega’s employment with the company on September
11, 2017. Respondent Syar cites the following reasons for terminating Mr. Vega’s
employment: Mr. Vega’s employment was terminated because it was Respondent's
determination that Mr. Vega falsely impersonated a company manager by writing
messages on employee pay envelopes and signing those messages using the manager’s
initials. In addition to falsely impersonating a manager, Vega’s employment was
terminated because he repeatedly forged a manager’s initials, repeatedly tampered with
other employees’ property, harassed at least one employee through inappropriate
messages on the employee’s paycheck envelope, and made employment promises by
signing a manager’s name to comments that provided feedback on employment
performance, all in violation of the law and/or written company policy.
12. Respondent disputes the Vega complaint.
13. Pursuant to a decision by this administrative law judge, after a temporary reinstatement
hearing on January 4, 2018, Anthony J. Vega was reinstated to his position as a heavyduty mechanic at Respondent's Napa shop on January 15th, 2018, and remains in that
position as of the date of this stipulation.
III. FACTUAL AND PROCEDURAL BACKGROUND
Respondent, Syar Industries, operates quarries, sand and gravel operations, asphalt
paving plants, redi-mix concrete plants, and recycling facilities in the North San Francisco Bay
area of California. The quarry where these events transpired is located in Napa, California. (Ex.
C–1, p.v)2 At the time of his termination, Anthony Vega had worked for Syar Industries as a
heavy equipment mechanic for twenty-two years. (Tr.12:10–13; 208:22–209:1; St. 7) In addition
to his mechanic duties (Tr.145:16–19), Vega served as a union steward and miners’
representative. (Tr.44:3–5; 74:8–16; 210:17–211:1; St. 8; St. 9) As part of his union duties, Vega
was expected to bring safety issues to management’s attention. (Tr.21:14–20; 211:2–9) Vega
reported to Ken Calvin, who in turn reported to James Irvine, the purchasing manager, Napa
shop supervisor and equipment rolling stock manager. (Tr.170:7–10; 209:5–9)
Vega alleges that he was fired for raising two safety-related issues, the first involving a
haul road in a quarry area, the second involving a hose cutting blade that generated smoke in the
hose shop. Respondent maintains that the people involved in firing Vega knew nothing about his
2

For the sake of clarity, the following abbreviations will be used in referencing evidence
in the record: “Ex. C” will refer to Complainant Vega’s exhibits; “Ex. R” will refer to
Respondent Syar Industry’s exhibits; “Tr.” will refer to the hearing transcript; “St.” will refer to
the stipulations included in the parties’ joint prehearing statement dated October 18, 2018; “AR”
will refer to any document in the Administrative Record that is not part of Complainant’s
exhibits, Respondent’s exhibits, or part of the hearing transcript.

41 FMSHRC Page 699

involvement in either safety issue and that their sole reason for terminating Vega was his
repeated and admitted writing on other workers’ pay envelopes, which the Respondent regarded
as forgery, intentional impersonation of a manager, harassment of a fellow worker, and likely to
create unjustified employee expectations.
Vega was terminated on September 11, 2017. A grievance hearing held on November 1,
2017, deadlocked on the issue of reinstatement, triggering a subsequent arbitration hearing on
January 15, 2018, at which Vega was reinstated to his prior position.3 (Tr.110:14–17; 193:8–9;
240:19–241:1) Vega and the Secretary filed this discrimination action on November 6, five days
after the November 1 grievance hearing. (Tr.193:17–194:2) Vega and the Secretary initiated a
temporary reinstatement action (WEST 2018-0135) with this agency after the union grievance
process was completed. I conducted a temporary reinstatement hearing on January 4, 2018, and
issued a decision on January 11, 2018, preserving Mr. Vega’s employment and related status quo
issues.4 (St. 13) Vega returned to work on January 15, 2018. (Tr.229:23–24)
This merits action was filed on February 12, 2018.5 In it, Mr. Vega seeks restoration of
lost wages, and the Secretary asks for statutory remedies, items either not awarded or unavailable
through the union grievance process. I have determined that neither the restoration of lost wages
nor the requested statutory remedies will be awarded. The penalties requested by the Secretary
will not be ordered.
IV. SUMMARY OF THE FACTS6
The court made a record of the parties’ testamentary and documentary evidence at a
hearing held in Vacaville, California on October 25–26, 2018. The parties filed post-hearing
briefs.

3

Vega was reinstated to his position prior to the issuance of this decision. Vega’s
reinstatement was the result of a union grievance process conducted independently of the
hearings for this case and my decision has no effect on Vega’s reinstatement as an employee of
Syar Industries.
4

The Board of Adjustment hearing was postponed four times. (Tr.244:4-7)

5

The Secretary filed an Amended Complaint on July 16, 2018.

6

The findings of fact are based on the record as a whole and my careful observation of
the witnesses as they testified. In resolving any conflicts in testimony, I have taken into
consideration the interests of the witnesses, all consistencies or inconsistencies in their
testimony, and their demeanor. Any failure to analyze each witness’s testimony is not a failure to
have fully considered it. The fact that some evidence is not discussed does not mean that it was
not considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000) (administrative law judge is
not required to discuss all evidence, and failure to cite specific evidence does not mean it was not
considered).

41 FMSHRC Page 700

A.

Protected Activity

Vega claims the Respondent fired him because of two safety-related issues he raised in
his capacity as a miners’ representative and union steward. (Ex. R–2) The safety issues involved
smoke from a chop saw in the hose room and concerns about the quarry haul road. Vega raised
these issues about the same time he began writing on the envelopes. (Tr.236:16–24) He claims
that the actions he took to bring attention to these safety issues constituted protected activity, and
that Respondent retaliated against him by firing him under the pretext of his writing notes on the
pay envelopes.7 (Ex. R–2)
1.

Smoke In The Hose Room

The first safety issue Vega claims to have raised with management involved smoke from
a chop saw located in a special hose room at the Napa shop where Vega and his co-workers
fabricated and repaired hydraulic hoses. (Tr.49:20–22; 50:7–19) The chop saw used to cut these
hoses would frequently generate smoke that concerned Vega and Robert Hayes, a fellow heavy
equipment mechanic. (Tr.50:21–51:13; 53:4–54:12; 132:14–18; 216:6–217:2; 220:19–25) Vega
and Hayes believed that the company should replace the chop saw blade to eliminate this excess
smoke, which they worried was dangerous to breathe.8 Vega spoke to safety and environmental
technician James Kerr about the smoke in the hose shop in January, 2017.9 (Tr.126:3–5; 233:6–
9) Vega told Kerr he was worried that the hose smoke might be toxic. (Tr.216:6–17; 221:1–7)
Kerr researched the issue on the internet to see if he could determine whether the smoke was
toxic and found no answer.10 (Tr.216:18–22) Vega did not speak to management about the
smoke issue for several months. (Tr.233:16–19) In the interim, however, he personally
conducted research and found a new blade that he thought the company should buy.
Out of concern that management would intentionally ignore his recommendation, Vega
requested that Hayes ask for the new blade. 11 (Tr.217:11–22) Although Hayes testified that he
7

“I believe [Respondent] [. . .] used this excuse to terminate me rather than fix the safety
concerns that I thought I had protections under section 105(c) of the Federal Mine and Safety
Act.” (Ex. R–2)
8

Although there had been a hose saw smoke issue for ten years (Tr.220:19-2), January
2017 was the first time Vega saw hose particles released when cutting. (Tr.221:1-7)
9

Kerr was formerly a parts runner until 2012. (Tr.126:6-11) Kerr did safety inspections
and miner training. He also conducted weekly safety meetings. (Tr.126:13-20)
10
Vega testified that he believed his conversation with Kerr would remain anonymous.
(Tr.237:3-17) However, Vega did not specifically ask Kerr to keep the conversation private.
(Tr.237:18-20)
11

Kerr stated that Vega had requested saw blades in his own name before, and Irvine had
never objected to nor expressed any disfavor of Vega’s requests. (Tr.239:5-20) Kerr never
sensed that management would be displeased to learn that the request for a new blade came from
Vega. (Tr.137:14-138:4)

41 FMSHRC Page 701

considered the purchase of better blades an efficiency issue rather than a safety issue (Tr.61:18–
63:2; 66:14–68:10), he agreed that management might ignore or delay responding to a parts
request for the blade if it came from Vega. (Tr.51:22–53:3; 64:10–65:9) According to his
testimony, Irvine was unaware of Vega’s involvement with this safety complaint. (Tr.198:19199:4) Hayes submitted the blade request in July 2017. Vega followed up with parts runner
Randy Novak about a week later to ask if and when a new blade would be installed. (Tr.217:23–
218:7) According to Vega’s testimony, Novak told him that Irvine directed him to research what
blades other companies were using to cut their hoses. While Irvine and Novak began to research
the issue (Tr. 132:24–133:8; 197:12–198:18), Irvine promptly dealt with the smoke issue by
posting a warning sign directing workers to wear a respirator when cutting hoses. (Tr. 65:11–19;
199:5–9)
Vega followed up with Novak again in another week. According to Vega’s testimony,
Novak informed him that Irvine put the blade issue on indefinite hold. (Tr.218:24–219:7) Vega
assumed that the reported delay in buying the new blade was because of Irvine’s dislike of Vega.
(Tr.221:18–24) Vega responded by telling Novak that if Irvine blocked the blade request, he
would approach MSHA with a safety complaint. (Tr.219:8–13) Vega surmised that Irvine could
have overheard this statement since his conversation with Novak occurred just a few feet outside
Irvine’s office door. (Tr.219:14–25)
Vega broached the subject of the new blade once more on August 23, 2017, when he
recommended to Kerr that the company should invest in a diamond hose saw blade or improve
the ventilation system in the hose room. Kerr then spoke to Irvine about the blade and ventilation
information. (Tr.130:15–20; 133:9–134:10) Irvine ultimately purchased the blade Hayes had
requested (Tr.62:10–63:2), but the issue had a broader ultimate resolution. Within six months,
the entire ventilation system was revamped and replaced. (Tr.55:24–56:4)
2.

The Haul Road

In July 2017, a miner approached Vega about a near miss incident on the haul road at the
Napa quarry. (Tr.211:10–14) In his capacity as a miners’ representative, Vega spoke to Kerr
about the incident. (Tr.126:3–5; 128:23–129:10; 136:13–25; 211:10–212:2) Vega asked Kerr
about the applicable regulations for road width and proper signage. (Tr.129:5–10; 211:15–212:6)
Kerr checked on his computer, but was unable to find answers for Vega. (Tr.129:11–13; 212:3–
6) Kerr then spoke to Irvine about the issue. (Tr.129:2–18; 196:16–20) Irvine testified that he did
not know Vega had anything to do with the issue at the time. (Tr.196:16–20) Irvine instructed
Kerr to inform Rick Tranchina and Jamal Grayson, the Napa Quarry Safety Director, about the
haul road issue. (Tr.129:14–130:4; 196:24–197:2) Kerr immediately contacted Greyson to notify
him. (Tr.129:19–23; 145:20–146:4)
Vega followed up with Kerr about a week later. (Tr.212:7–11) Kerr told Vega he had
spoken to Irvine. Vega claimed that Kerr told him, “James Irvine wanted to know why it was
any of [Vega’s] business performing mining duties in the quarry when [he is] the Napa
shop’s miners’ rep.” Id. Vega testified that he asked Kerr “why he narked [him] out to

41 FMSHRC Page 702

[Irvine], because he knows [Irvine] doesn’t like [Vega].”12 (Tr.212:25–213:6) According to
Vega, Kerr said nothing more and walked away. (Tr.213:3–6) Kerr testified that he does not
recall following up with Vega about the road. (Tr.130:5–15) Tranchina testified that he was
alerted to the haul road safety issue on August 10, 2017, from Grayson. (Tr.145:20–22;
159:10–23; 165:12–166:7) Tranchina told Grayson to look into it the same day. (Tr.165:12–
22) Grayson learned that operations had ceased in the area of the quarry served by the haul
road before this issue was raised and the haul road had already been shut down, except for
police traffic. The road was also in compliance with applicable MSHA regulations.
(Tr.165:23–166:7)
B.

Writing Notes on Pay Envelopes

Pay envelopes were routinely laid out in the Napa quarry shop office for distribution. In
the summer of 2017, Vega noticed that some of the pay envelopes lying on the counter waiting to
be picked up by other miners had smiley faces and positive notes written on them. (Tr.146:12–
147:1; 223:8–18; 236:12–15) These writings inspired him to write his own notes on some of the
envelopes as a prank. (Tr. 26:12–22; 223:19–21; 224:1–12)
Tranchina supervised the Napa shop employees whose pay envelopes were involved in
Vega’s prank. (Tr.144:13–18; 172:3–10; 223:22–25)13 At first, Vega’s messages did not indicate
who they were from, but eventually he started adding Tranchina’s initials, “RT”, to the
envelopes. (Tr.223:22–25) At least one employee initially believed the notes were from
Tranchina. (Tr.45:17–46:1; 57:19–58:17) Some employees thought the notes were funny and out
of character for Tranchina. (Tr.46:13–20) Some workers asked Tranchina if the notes were really
from him. (Tr.153:18–24) Vega told some of his co–workers that it was he, not Tranchina, who
had left notes on the envelopes. One co–worker, going along with the joke, asked Vega why he
had not received a note from Tranchina. Vega put a note on his envelope the next day.
(Tr.224:13–25)
Tranchina was upset when he became aware of the notes on the pay envelopes.
(Tr.160:14–161:1) Particularly, he was concerned that the as yet unidentified japer had attributed
the comments to him by using his initials. (Tr.161:2–22) Tranchina hoped that the notes might
stop without his intervention (Tr.169:2–4), but this was not the case. When the prank continued,
he called a meeting to tell the employees that the notes were inappropriate and had to stop.
(Tr.151:10–153:3; 162:1–6; 164:11–19) One of the employees told Tranchina it was Vega who
was writing the notes. (Tr.46:21–47:8) According to Tranchina, the miners he spoke with felt
that the prank was out of the ordinary. (Tr.153:25–154:5) Although Vega’s stunt caused no real
12

Vega testified that he believed his conversation with Kerr about the haul road issue
would remain anonymous. (Tr.138:5-8; 237:3-17) However, Vega did not specifically ask
Kerr to keep the conversation private. (Tr.237:18-20) Kerr stated that Vega had requested saw
blades in his own name before, and Irvine had never objected to nor expressed any disfavor of
Vega’s requests. (Tr.239:5-20) Kerr never sensed that management would be displeased to
learn that the request for a new blade came from Vega. (Tr137:14-138:4)
13

Tranchina did not have authority to supervise or discipline Vega. (Tr.164:20165:4)

41 FMSHRC Page 703

problems for the Respondent (Tr.162:7–13), in management’s estimation it created a risk of
confusion and dissent among the miners. (Tr.163:15–164:5) Tranchina testified that at least one
miner whom he supervised was not deserving of the prank praise he was receiving. (Tr.162:14–
163:4)
Tranchina met with Ann Pearson, the personnel manager, on August 4, 2017, to discuss
the writing on the pay envelopes. (Tr.82:18–25; 89:7–13; 118:1–14; 154:12–20; 160:7–13;
169:5–8) Tranchina testified that he neither liked nor disliked Vega. (Tr.167:15–18) He had
never had an unpleasant interaction with Vega prior to the firing and (Tr.167:19–21) he did not
speak with Vega or Tom Vella, a witness to the prank, about the envelope writing. (Tr.154:21–
155:2) Pearson decided to install a surveillance camera in the office to catch the culprit in the act.
(Tr.167:3–7) She authorized Tranchina to buy and install the camera and alerted Irvine of her
decision. (Tr.147:9–15; 150:6–15; 176:7–13) Pearson testified, and Irvine confirmed, that she
did not tell him what had prompted the installation of the camera. (Tr.176:14–17) Nor did
Pearson alert Vega of the installation, hoping to develop proof of his prank to make sure she had
correctly identified the culprit. (Tr. 97:6–18; 103:22–104:13) Tranchina spoke to Irvine about the
writing incident when the camera was installed, but there is no evidence that he communicated to
Irvine that Vega had raised a safety complaint. (Tr.155:11–13; 166:24–167:2)
The camera was functional within two weeks, and more altered envelopes were
discovered.14 (Tr.94:16–19; 150:19–151:2) Vega did not stop writing on the envelopes until early
September, 2017, when he heard about the installation of the surveillance camera from a coworker. (Tr.225:16–226:8; 234:13–235:14) Vega testified that when he realized that
management regarded his prank as a serious offense, he regretted that he had not stopped before
getting caught. (Tr.226:9–14) Vega also testified that he felt he was treated unfairly by
management because he had not received a warning not to write on the envelopes prior to his
dismissal. (Tr.226:15–19) He reinforced this sense of unfairness at the hearing when he testified
that he brought this discrimination action to send Syar Industries a message to be more
circumspect in its dealings with miners’ representatives in the future. (Tr.243:1–4)
C.

The Decision to Fire Vega

Pearson determined it was appropriate to fire Vega as early as August 4, 2017, the day
she and Tranchina discussed the note writing for the first time. (Tr.89:7–13; 98:2–5) She
considered the note writing a matter of dishonesty. As she saw it, Vega had impersonated a
manager. (Tr.110:7–13) Tranchina and Pearson did not discuss any option for Vega other than
firing because the violation was so severe in their estimation. (Tr.148:21–149:9) Pearson spoke
to Respondent’s CEO, James Syar, to secure his consent. (Tr.75:5–15)15 CEO Syar testified that

14

For example, Tranchina discovered two more envelopes on September 5, 2017, and
exchanged them with unmarked replacements. (Tr.151:6-9; 161:23-25)
15

Neither Tranchina nor Irvine advised Pearson or CEO Syar to fire Vega. (Tr.165:5-11;
199:13-23)

41 FMSHRC Page 704

he considered what Vega had done an act of forgery.16 (Tr.77:3–12) To him, it was of significant
importance that Vega was handling other people’s paychecks. (Tr.78:25–79:3) He believed it had
the potential to mislead the processing banks. (Tr.77:8–12) CEO Syar also spoke with Irvine
about terminating Vega. (Tr.76:2–11)
The surveillance camera captured two video clips that identified Vega and Vella in the
Napa quarry shop office at the time when Vega wrote on the pay envelopes. (Tr. 95:21–96:11;
100:23–25; 102:9–11; 104:20–105:1; 109:14–18) To bolster the video evidence, Pearson asked
Irvine to gather handwriting samples from Vega and Vella. Later, in response to a request by
Pearson, Irvine identified a sample of Vega’s writing based on his personal knowledge, having
seen Vega’s writing on many occasions over the 10–15 past years. (Tr. 91:2–17; 177:3–19)
Pearson conferred with company attorneys and CEO Syar and got approval to hire a handwriting
expert to develop evidence to support whatever disciplinary action might be taken. (Tr.78:12–
79:3; 92:13–15; 93:21–23; 96:4–11; 104:14–19) The expert was hired in early September, 2017
(Tr.96:7–11), and confirmed Vega’s writing from two anonymous writing samples. (Tr.97:20–
98:1; 105:2–9) When Pearson confronted Vega with copies of the pay envelopes, Vega admitted
to writing on them. (Tr.227:12–17) Pearson told Vega about the camera and the handwriting
expert. (Tr.227:18–25)
Vega was terminated on September 11, 2017, (St. 11) and Vella was disciplined with one
day off without pay and a written warning for witnessing and failing to report Vega’s prank. (Tr.
87:14–18; 102:6–15; 108:20–109:1–13) According to the parties’ joint stipulations, Respondent
terminated Vega because: (1) it determined that he falsely impersonated a company manager by
writing messages on employee pay envelopes and signing the messages using the manager’s
initials; and, (2) because Vega repeatedly forged a manager’s initials, repeatedly tampered with
other employees’ property, harassed at least one employee through inappropriate messages on
the employee’s paycheck envelope, and made employment promises by signing a manager’s
name to comments that provided feedback on employment performance, all in violation of
written company policy. (St. 11) The stated reason for Vega’s termination was for “falsely
impersonating a company manager by writing messages.”1 (Tr.100:1–5; 114:22–115:13)
D.

The Grievance Process

The labor agreement between Respondent and the Operating Engineers’ Local Union,
No. 3 (of which Vega was a member) provided a grievance and arbitration framework to resolve
disputes between the Respondent and its union employees. (Ex. C–3, p.33) The Union invoked
the labor agreement to challenge Vega’s termination. (Tr.41:22–42:2) The first step in the
grievance resolution process was a Board of Adjustment (BoA) hearing, which was held on
November 1, 2017. (Tr.34:8–12; 240:19–241:6) At the hearing, Vega stated he thought the
termination was ridiculously harsh for such a minor offense. (Tr.228:1–7) The BoA deadlocked
on the issue of whether Vega had been terminated in violation of the labor agreement. (Tr. 35:1–
5; 111:4–7; 179:14–20; 180:2–19) No mention of safety issues or protected activity was made in
the November 1, 2017 BoA hearing. (Tr.193:10–16)

16

The termination notice did not mention forgery. (Tr.99:11-25)

41 FMSHRC Page 705

The labor agreement stipulated that Vega’s case proceed to arbitration to resolve the
deadlock. (Tr.180:23–181:1) The arbitration was conducted on January 15, 2018, (Tr.229:19–
230:2), after the temporary reinstatement hearing of January 4, 2018. It resulted in Vega’s
reinstatement to his former position (Tr.229:25–230:2), but it did not restore his lost wages and
benefits. (Tr.42:9–13; 229:25–230:2; 250:19–25; St. 13) Vega filed this discrimination complaint
five days after the BoA hearing failed to reinstate him. (Tr.111:4–7) This was the first time Vega
formally raised the issue of his protected activity. (Tr.241:12–17)
V. ANALYSIS OF THE ISSUES
Although the basic factual backgrounds of both protected events are outlined above to
establish a storyline, the following includes contested factual details along with analysis and
findings. It is fundamental that the ALJ, as trier–of–fact, assess the credibility of all witnesses
and determine the weight their testimony deserves. See Farmer v. Island Creek Coal Co., 14
FMSHRC 1537, 1541 (Sept. 1992) (“[A] Judge's credibility resolutions cannot be overturned
lightly.”).
A.

Prima Facie Case

Under section 105(c)(1) of the Mine Act, a miner cannot be discharged, discriminated
against, or interfered with in the exercise of his statutory rights because he “has filed or made a
complaint under or related to this Chapter, including a complaint notifying the operator […] of
an alleged danger or safety or health violation.” 30 U.S.C. § 815(c). To establish a prima facie
case of discrimination under section 105(c)(1), Vega is required to show: (1) that he engaged in a
protected activity; and, (2) that the adverse action he complains of was motivated, at least in part,
by that activity.17 Driessen v. Nev. Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Sec’y of
Labor on behalf of Robinette v. United Castle Coal, Co., 3 FMSHRC 803 (Apr. 1981); Sec’y of
Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on
other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d. Cir. 1981).

17

The legitimacy of the Pasula-Robinette framework was challenged in Sec’y of Labor
on behalf of Riordan v. Knox Creek Coal Corp., 38 FMSHRC 1914 (Aug. 2016). In Riordan, the
respondent mine operator argued that the Pasula-Robinette test was no longer appropriate
because the Supreme Court invalidated the burden shifting framework in the ADEA and Title
VII contexts. Id. at 1919. The Commission, citing the legislative history and intent of the Mine
Act, found that the burden shifting framework of the Pasula-Robinette test is still applicable and
appropriate. “Congress envisioned such a burden shifting framework when drafting the
discrimination protections of section 105(c)(1) […] Given the distinct history and legislative
intent of the Mine Act, we do not find Gross and Nassar to be controlling for discrimination
proceedings under the Mine Act. The Commission’s reasoning in Pasula was sound, and we
decline to overturn it.” Id. at 1921.

41 FMSHRC Page 706

B.

Protected Activity

To satisfy the first prong of the Pasula-Robinette test for a prima facie case of
discrimination, Vega must show that he engaged in protected activity.18 Driessen, 20 FMSHRC
at 328; Robinette, 3 FMSHRC at 803; Pasula, 2 FMSHRC at 2786. Protected activity under the
Act has been found to include making a complaint to an operator or its agent of “an alleged
danger or safety or health violation,” see Sec’y of Labor on behalf of Davis v. Smasal
Aggregates, LLC, 28 FMSHRC 172, 175 (Mar. 2006) (ALJ), and reporting potential safety or
health hazards to MSHA or an MSHA inspector, see Sec’y of Labor on behalf of Chaparro v.
Comunidad Agricola Bianchi, Inc., 32 FMSHRC 206 (Feb. 2010) (ALJ). I must determine
whether the evidence in total, including the inferential evidence, has sufficient circumstantial
weight to satisfy his prima facie burden to show discrimination.
I find that Vega engaged in two instances of protected activity in relative temporal
proximity to his termination on September 11, 2017. Respondent does not dispute that Vega’s
actions regarding the quarry road and the hose room issues can be seen as protected activity
under Section 105(c) of the Mine Act. Even if Respondent did dispute this, the fact that Vega
was involved in the hose room and haul road issues either in his capacity as a miner’s
representative or shop steward – or merely as an employee – is sufficient to bring the issues
under the umbra of protected activity under section 105(c)(3). The evidence supports the
conclusion that the hose room and quarry road issues are properly considered safety concerns
and that Vega played a role in both events. As such, the requirement for the protected activity
portion of the prima facie analysis is satisfied.
C.

Motivation of Adverse Action

The second prong of the Pasula-Robinette test for a prima facie case of discrimination
requires a showing that Respondent took adverse action against Vega that was motivated, at least
in part, by Vega’s protected activity. Driessen, 20 FMSHRC at 328; Robinette, 3 FMSHRC at
817–18; Pasula, 2 FMSHRC at 2799–800, rev’d on other grounds sub nom. Consolidation Coal
Co., 663 F.2d 1211 (3d. Cir. 1981). This second prong of the Pasula-Robinette test may be
alternatively framed as two sub-questions: (1) was there was an adverse employment action; and,
18

When a complainant asserts that he engaged in a protected activity that is not expressly
enumerated under the Mine Act, the activity may still be protected if it furthers the purpose of
the legislation. Hopkins Cty. Coal, LLC, 38 FMSHRC 1317, 1323 (June 2016) (citing Pasula, 2
FMSHRC at 2789). In determining whether an activity is to be considered protected activity, the
legislative history makes clear that Congress intended for courts to liberally construe the Act.
Congress stated that “[t]he Committee intends that the scope of the protected activities be
broadly interpreted by the Secretary” and that “[t]he listing of protected rights contained in
section 10[5](c) is intended to be illustrative and not exclusive.” S. Rep. No. 181, 95th Cong., 1st
Sess. 35-36 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act
of 1977, at 623-24 (1978). It further stated that section 105(c) was to be construed “expansively
to assure that miners will not be inhibited in any way in exercising any rights afforded by the
legislation.” Id. at 36.

41 FMSHRC Page 707

if so, (2) was there was a motivational nexus, at least in part, between the adverse action and the
Complainant’s protected activity? See United Mine Workers of America (UMWA), on behalf of
Mark A Franks and Ronald M. Hoy v. Emerald Coal Resources, LP, 36 FMSHRC 2088, 2096
(Aug. 2014) (Cohen and Young) (decisions where Commission first held that a miner engaged in
protected activity, then determined that the complained of action, a termination, was an adverse
employment action, before addressing the nexus).
1.

Adverse Employment Action

The Complainant must first establish that an adverse employment action occurred before
the issue of nexus is reached. Complainant has satisfied this requirement. Termination is the
ultimate adverse employment action. This is consistent with the legislative history of the Mine
Act. In keeping with the Congressional intent, the term “adverse action” has been broadly
defined as “an act of commission or omission by the operator subjecting the affected miner to
discipline or a detriment in his employment relationship.” Pendley v. Fed. Mine Safety & Health
Rev. Commn., 601 F.3d 417, 428 (6th Cir. 2010).
2.

Motivation

The Secretary and Vega must next prove that the adverse action was motivated, at least in
part, by the protected activity. Driessen, 20 FMSHRC at 328; Robinette, 3 FMSHRC at 817–18;
Pasula, 2 FMSHRC at 2799–800, rev’d on other grounds sub nom. Consolidation Coal Co., 663
F.2d 1211 (3d. Cir.1981). The Commission has noted that “direct evidence of motivation [for
termination] is rarely encountered; more typically, the only available evidence is indirect.”
Chacon, 3 FMSHRC at 2510. Such indirect, circumstantial evidence may include: (1)
coincidence in time between the protected activity and the adverse action; (2) knowledge of the
protected activity; (3) hostility or animus toward the protected activity; and, (4) disparate
treatment. Id. The more that hostility or animus is specifically directed toward the protected
activity, the more probative it is of discriminatory intent. Id. at 2511.
In analyzing a mine operator’s asserted justification for taking adverse action under the
Pasula-Robinette framework, the inquiry is limited to whether the reasons are plausible, whether
they actually motivated the operator’s actions, and whether they would have led the operator to
act even if the miner had not engaged in protected activity. The ALJ may not impose his own
business judgment as to an operator’s actions. Chacon, 3 FMSHRC at 2516–17. Additionally,
the ALJ may not substitute his own justification for disciplining a miner over that offered by the
operator. Sec’y of Labor on behalf of McGill v. U.S. Steel Mining Co., 23 FMSHRC 981, 989
(Sept. 2001).

41 FMSHRC Page 708

In Bradley v. Belva Coal Company, with regard to the issue of motivation, the
Commission found that “circumstantial evidence […] and reasonable inferences drawn therefrom
may be used to sustain a prima facie case.” 4 FMSHRC 982, 992 (June 1982) (citing Chacon, 3
FMSHRC at 2510–12). Furthermore, the Commission has held that “inferences drawn by judges
are ‘permissible provided they are inherently reasonable and there is a logical and rational
connection between the evidentiary facts and the ultimate fact inferred.”’ Colo. Lava, Inc., 24
FMSHRC 350, 354 (Apr. 2002) (citing Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 (May
1984)).
a.

Coincidence in Time

The Commission has stated that “[a]dverse action under circumstances of suspicious
timing taken against the employee who is [a] figure in protected activity casts doubt on the
legality of the employer’s motive […].” Chacon, 3 FMSHRC at 2511. Also, “[W]e ‘appl[y] no
hard and fast criteria in determining coincidence in time between protected activity and
subsequent adverse action when assessing an illegal motive. Surrounding factors and
circumstances may influence the effect to be given to such coincidence in time.”’ Hyles, 21
FMSHRC at 132 (quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 531 (Apr. 1991)).
Vega’s protected activity occurred at roughly the same time as his writing notes on the
pay envelopes in the Napa quarry shop office. (Tr.223:10–21; 225:16–17; 232:19–22; and
236:12–20) Vega’s involvement in the quarry haul road issue occurred in July 2017, and
although he first became involved in the hose room ventilation issue in early 2017, he did not
return to the topic until August 2017. (Tr.211:10–21; 216:6–217:6; 236:6–11, 236:21–24) Vega
learned that Respondent had installed a surveillance camera in August or September 2017 and
believed that management suspected he had been writing on the pay envelopes. (Tr.225:16–
226:2) Syar management, specifically Tranchina and Pearson, discovered Vega was the
individual who was writing on pay envelopes in August 2017 (Tr.89:7–13; 118:1–14), and
terminated his employment on September 11, 2017. (Tr.226:24–227:3)
I find that Vega’s claim of nexus between his protected activity and termination is
implausible. Instead of buttressing the notion that Respondent’s decision to fire Vega was
retaliatory, the close proximity in time between Vega’s discovery that management suspected he
was carrying out the prank, his involvement with the two incidents of protected activity, and his
termination suggest that the claim of nexus between the protected activity and the termination
was a calculated response intended to defend Vega from Respondent’s decision to fire him for
writing on the envelopes. At a minimum, the temporal proximity of these events does not bolster
the claim that Vega’s termination was retaliatory or motivated by his protected activity.
b.

Management Had No Knowledge of the Protected Activity

The Commission has held that “an operator’s knowledge of the miner’s protected activity
is probably the single most important aspect of a circumstantial case.” Baier, 21 FMSHRC at
957 (citing Chacon, 3 FMSHRC at 2510). Whether the operator had knowledge of the protected
activity may be “proved by circumstantial evidence and reasonable inferences.” Id. The
commission has also held that “discrimination based upon a suspicion or belief that a miner has

41 FMSHRC Page 709

engaged in protected activity, even though, in fact, he has not, is proscribed by section
105(c)(1).” Moses, 4 FMSHRC at 1480. Additionally, the Commission has held that “a
supervisor’s knowledge of the protected activity may be imputed to the operator where
knowledgeable supervisors are consulted regarding the miner’s employment.” Sec’y of Labor on
behalf of Pappas v. Calportland Co., 38 FMSHRC 137, 146 (Feb. 2016); see also Turner, 33
FMSHRC at 1067–68 (imputing knowledge and animus of miner’s direct supervisors to official
making disciplinary decision); Metric Constructors, Inc., 6 FMSHRC 226, 230 n.4 (Feb. 1984)
(stating that “[a]n operator may not escape responsibility by pleading ignorance due to the
division of company personnel functions.”).
The issue of whether Respondent’s management had knowledge of Vega’s protected
activity at the time of his termination can be resolved by evaluating the weight of the evidence
and considering the compelling force of each side’s arguments. When the evidence in the record
is considered and weighed, it is apparent that the evidence supporting the Respondent’s claim
that its management knew nothing about Vega’s involvement in protected activity when the
decision was made to terminate him is significantly better supported, more cohesive, and has
more convincing force than the evidence the Secretary and Vega brought to the record. I am not
convinced that Respondent’s management knew of Vega’s involvement with the protected
activity at the time of his termination.
Vega testified that he was not on good terms with his supervisors in general and Irvine
in particular because: (1) he had once notified management in his capacity as a union
representative that untrained laborers had operated skip loaders without being qualified; and,
(2) he had initiated a grievance after a shoulder injury. (Tr.52:8–19; 64:10–25; 213:7–215:22;
173:8–174:8; 213:17–215:22, 237:3–14; 244:1–23)19 The Secretary and Vega ask me to find
that management had to know about Vega’s involvement in the hose room and quarry haul
road issues because: (1) Tranchina and Irvine met regularly to discuss work issues (primarily
purchase issues) (Tr.83:15–21; 84:1–7; 144:19–24; 154:3–6; 172:3–10); (2) CEO Syar met
periodically with supervisors, including Tranchina and Irvine (Tr.72:25–73:15; 181:20–
182:2); and, (3) Pearson had met with Irvine from time-to-time to discuss common work
issues. 20 21 (Tr.83:15–21) In broader context, Irvine testified that he did not meet regularly

19

Vega had a shoulder injury. He was on part time work for a while. He had made plans
for three days off, but they released him to full duty in the middle of the week. He asked if he
could go ahead with his three-day plans. He went ahead, but the company treated it as AWOL. He
grieved the decision to give him two days off. (Tr.213:22-214:19)
20

In regard to the haul road issue, there is conflicting evidence regarding whether
Vega wanted his involvement kept confidential. Vega claimed that he told Kerr that he wanted
his role in the issue kept quiet (Tr.138:5-8), but, he also testified that he did not tell Kerr to
keep his name confidential. (Tr.223:3-7) Vega testified further that he assumed and believed
that his comments to Kerr would be anonymous since during a safety meeting, management
instructed miners to go to Vega or Kerr if they wanted to keep their complaint anonymous.
(Tr.237:3-17) Kerr could have substantiated parts of Vega’s story, but his testimony left
Vega’s version of the story uncorroborated.

41 FMSHRC Page 710

with CEO Syar (Tr.181:20–182:2) and he only met with Tranchina when Tranchina “really
need[ed]” to purchase an item. (Tr.172:3–10) He described his interactions with other
managers as limited to the request and question at hand, i.e., purchasing a camera or
providing his mechanics’ requisitions (Tr.176:3–178:2) — nothing else was discussed. Id. To
underscore this, Irvine testified that he was not even consulted when human resources
considered terminating one of his three skilled mechanics. (Tr.71:10–16; 112:23–113:2;
202:14–16)22
The evidence that might show management’s knowledge of the protected activity relies
solely on Vega’s testimony, lacks non-hearsay corroboration, is unreliable, and is not entitled to
convincing probative weight. REB Enterprises, Inc., 20 FMSHRC 203, 206 (1998) (hearsay
evidence is admissible but should be evaluated by the judge to determine whether it is reliable
and entitled to any probative weight). Vega testified that he dealt with Kerr and Novak regarding
the hose room smoke issue and with Kerr only regarding the haul road issue. Novak was not
called as a witness, and although hearsay is admissible if material and relevant, nothing
attributed to him can be corroborated. Cf. Hayes v. Dept. of the Navy, 727 F.2d 1535, 1538
(Fed.Cir.1984) (footnote omitted) (hearsay testimony may be treated as substantial evidence,
even without corroboration, if, to a reasonable mind, the circumstances are such as to lend it
credence).
On balance, the evidence does not support the argument that Respondent’s management
knew Vega was involved in the protected activity prior to his termination. Vega testified that he
raised the safety concern regarding the hose room with Kerr, but he did not offer anything to
support the idea that Kerr told Irvine about his involvement. (Tr.238:25–239:4) Irvine testified
that he heard from Novak about the blade purchase request in August 2017, and that he heard
about the smoke issue from Kerr at the same time. (Tr.197:12–198:24) But, Kerr testified that he
did not disclose Vega’s involvement in either protected activity to Irvine or any other member of
management prior to Vega’s termination and stated that when people made safety complaints to
him, he assumed they wanted to remain anonymous. (Tr.127:24–128:2; 142:8–12; 198:19–24)
Consistent with this, Vega asked Kerr to keep his concerns about the hose room and the haul
21

The Secretary also argues that Irvine must have known about Vega’s involvement in
the hose room smoke issue in August 2017 because a complaint could have only come from one
of three mechanics making hoses (Tr.197:12-198:24) and/or that given Irvine’s open door policy
for safety and stated care for safety, it was plausible that Novak told Irvine about Vega’s MSHA
comments (Tr.192:3-5; 195:23-196:15), because Novak did talk to Irvine about the request for
the diamond blade. (Tr.197:12-198:9; 218:14-16) This plausibility does not convince me that
Respondent’s management in general, and Irvine in particular could have or did know about
Vega’s protected activity prior to his termination.
22

The Secretary argues that I should infer Pearson and Irvine had knowledge of Vega’s
protected activity and acted against Vega based on that knowledge because skilled mechanics
were scarce and the Respondent would not act against its own interest and fire a person with
Vega’s skills unless it had a retaliatory motive. (AR: Secretary’s Brief, p.16) However, it is
equally if not more plausible that Respondent acted as it did (using the Secretary’s logic) because
it felt keeping him on staff despite his forgery stunt was of even greater importance.

41 FMSHRC Page 711

road confidential. (Tr. 129:14–18, 138:5–8; 142:8–17) Novak did not appear as a witness to
confirm or deny any of the evidence attributed to him.
Irvine testified that prior to Vega’s termination, he was not aware that Vega was involved
in discussions about replacing the hose shop blade. (Tr.198:19–24) There is no evidence in the
record showing that Hayes ever informed Irvine about Vega’s involvement with the hose room
issue. When Hayes submitted the saw blade request, it did not have Vega’s name associated with
it. (Tr.238:6–11) Pearson testified that she did not discuss Vega raising either safety concern
with Mr. Irvine. (Tr.105:10–22, 110:1–6) Napa Quarry Manager Rick Tranchina testified that
neither Grayson nor Irvine ever communicated to him that Vega had raised either the quarry haul
road or hose room safety concern. (Tr.166:20–25, 167:1–2) Irvine also testified that at the time
he obtained the writing samples, he did not know why they were requested and Pearson and
Irvine did not discuss any safety issues when Irvine identified Vega’s writing. (Tr.105:10–22;
178:14–20)
Vega, in his capacity as the Napa shop safety coordinator, first heard of the haul road
issue from another miner and passed the information along to Kerr. (Ex. R–2) Vega asked Kerr
to investigate and pass his findings on to Jamal Grayson. Id. Grayson never mentioned Vega’s
name in connection with the haul road complaint. (Tr.166:20–23) Kerr told Vega that he was
unsuccessful in his search for haul road regulations and had spoken with Irvine about the issue.
(Ex. R–2; Tr.129:2–18; 196:16–20) When Kerr reported the issue about the haul road to Irvine,
he said it came from a miner and did not name Vega (Tr.129:14–18), again consistent with
Vega’s request for anonymity. Irvine credibly denied knowledge of Vega’s involvement.
(Tr.196:16–20) Although there is conflicting evidence about whether Vega wanted to remain
anonymous during this process, Irvine’s denial that he knew about Vega’s role in this event is
consistent with the preponderant evidence that Vega wanted to remain anonymous. Irvine
testified that he had no conversation with anyone at Syar regarding the quarry haul road issue
after it was initially raised in July 2017, and until November 6 or 7, 2017, when he received
Vega’s MSHA Discrimination Report. (Tr.197:3–8)
The evidence convincingly shows that Irvine had no role or responsibility in making the
decision to terminate Vega in September 2017, nor did Irvine recommend that CEO Syar or
Pearson take such action. (Tr.199:13–25, 105:10–22) Further, Respondent’s agents who made
the decision to terminate Vega also denied having knowledge that Vega had made complaints
about safety issues that could be considered protected activity. Both CEO Syar and Pearson
denied any knowledge of the two safety concerns listed in Vega’s MSHA discrimination report
when they made the decision to fire him. (Tr.80:6–13; 110:1–13) Pearson had only been at the
job about nine months. (Tr.123:22–124:6) She testified that she was not aware of any animosity
between Vega and management and (Tr.123:13–124:6) had no substantial contact with Vega
prior to learning about the envelope writing incident. (Tr.105:23–25) The first time she heard
Vega’s name was in the context of this controversy when she saw Vega’s MSHA complaint (Ex.
R–2) on November 6, 2017, a week after the union grievance hearing, and almost two months
after Vega’s termination. (Tr.111:8–12; 122:20–123:2) This is consistent with Vega’s testimony
that the first time he formally raised a claim of protected activity was in his MSHA
discrimination complaint. (Tr.241:12–17) CEO Syar spoke with Irvine about terminating Vega

41 FMSHRC Page 712

after learning about the note writing situation and denied knowledge of either safety issue prior
to Vega’s termination. (Tr.76:2–11)
The Secretary essentially argues that Pearson, Irvine, and Tranchina (and presumably
CEO Syar) lied under oath that they had no knowledge of Vega’s protected activity until after his
September 11, 2017 termination, indeed after the November 6, 2017 grievance hearing. To
support this argument, the Secretary asks the court to find that Kerr lied when he testified that he
never revealed Vega’s involvement in the hose room and quarry haul road issues. (Tr.127:24–
128:5; 142:8–17) I am urged to credit Vega’s otherwise uncorroborated testimony over Kerr’s
because Kerr lived in a house belonging to Syar Industries (Tr.127:24–128:5; 135:2–23; 142:8–
17;), which perforce would cause him to lie to contradict Vega’s belief that management must
have known about his involvement with the hose room and quarry haul road issues. Furthermore,
Vega’s testimony about management having knowledge of his protected activity is heavily
dependent on corroboration from Novak, a person who was not called as a witness. Although I
can admit and consider hearsay evidence for its reliability and probative value, nothing in this
scenario prompts me to credit those portions of Vega’s testimony that rely for corroboration on
statements or conclusions attributed to Novak or rule on a finding that Kerr lied under oath. See
Sec’y v. REB Enterprises, Inc., 20 FMSHRC 203, 206 (1998).
The Secretary’s entire case on the issue of Respondent’s knowledge of the protected
activity is based on Vega’s testimony. As a matter of simple credibility assessment, Vega’s
claims are less convincing than Pearson’s, CEO Syar’s, and Irvine’s. I find that Respondent’s
managers and executive had no knowledge of Vega’s protected activity until after he was
terminated, two grievance hearings had taken place, and Vega had submitted his MSHA
discrimination claim. Vega’s speculation that Syar management knew he had engaged in the two
cited instances of protected activity and fired him for that protected activity (which is different
than Syar management allegedly suspecting that Vega was responsible for tampering with pay
envelopes) does not amount to substantial evidence. The testimony of CEO Syar and Pearson, as
well as that of each member of Syar management in this case, is credible and consistent. See,
e.g., Robinette, supra, 3 FMSHRC at 813. As set out above, Syar management had no knowledge
of Vega’s protected activity when it terminated Vega for his repeated misconduct.
c.

Hostility or Animus Toward the Protected Activity

Examples of operator animus or hostility related to protected activity run the gamut from
the relatively minor (less desirable work schedules) to the flagrant and criminal (severe verbal
harassment, physical assault). “The more such animus is specifically directed towards the alleged
discriminatee’s protected activity, the more probative weight it carries.” Chacon, supra, 3
FMSHRC at 2511 (finding that the operator’s “angry remarks to Chacon about the MSHA
complaints . . . display a specific hostility towards Chacon’s protected activity”).
Vega testified that Irvine had such a negative opinion of him that anything he might say
or that was attributed to him would be rejected out-of-hand. (Tr.221:22–24) Vega’s perception of
hostility between himself and Irvine falls into two time periods, before the protected activity and
after the termination. For his part, Irvine testified that he felt no hostility towards Vega during
the eight years they worked together (Tr.230:3–10) excepting the event arising from the

41 FMSHRC Page 713

grievance process after the termination. The record does not support the allegation that
management acted with hostility toward Vega during the period of the protected activity. During
Vega’s termination meeting on September 11, 2017, Vega said nothing about a link between his
protected activity and the firing. (Tr.226:24–227:25) There was no mention of protected activity
at either the initial grievance hearing (BoA) on November 1, 2017, or the follow-up arbitration
hearing. (Tr.33:10–34:25; 41:4–7; 110:14–111:3; 193:10–16; 224:7–11) The first time the
alleged protected activity was mentioned was in the MSHA discrimination complaint. (Ex. R–2;
Tr.241:12–17)
Any hostility between Vega and Irvine that Vega repeatedly mentioned seems more
likely to relate to the prior grievance over Vega’s shoulder injury, the related dispute about being
able to take time off after being released back to unrestricted work, the dispute about whether
other workers not covered by Vega’s union’s rules being allowed to do jobs that Vega thought he
should be allowed to do, and the resulting grievance process. (Tr.52:8–53:3; 64:16–25; 138:9–
139:20; 213:22–214:16; 215:9–22) However, Kerr testified that Vega had spoken about Irvine’s
animosity toward him, but that Kerr was not personally aware of any animosity between Vega
and any member of management over issues relating to Vega’s shoulder injury. (Tr.123:18–21)
Hayes testified that although Vega talked about ill will between himself and Irvine, Hayes
believed the animosity originated from a territory dispute with a rival union, not the shoulder
injury episode or a disagreement over safety concerns. (Tr.64:16–65:9) If either of these
testimonies is true, the ill will does not arise from or relate to the protected activity in this case.
Moreover, this purported animosity seems to be a construct in Vega’s mind. There is no evidence
showing that it was shared by Irvine or other members of Respondent’s management.
(Tr.213:17–21; 214:17–215:2; 221:18–24) From Irvine’s perspective, he testified that he had
worked with Vega for eight years and had never been aggressive or threatening toward him.
(Tr.230:3–10) Furthermore, Irvine had no input in the firing decision and denied knowing
anything about Vega’s alleged safety complaints.23
As discussed above, there is no evidence showing that Irvine or any other member of
Syar management displayed or expressed animus or hostility toward Vega for the protected
activity he alleges in his MSHA Discrimination Report. (Tr.239:12–20) Vega asserted that
because of their historical animosity, Irvine delayed dealing with the hose room issue.
(Tr.218:24–219:7; 221:18–24) The evidence does not support this belief. Vega had requested
saw blades in his own name before. Irvine never objected or expressed any disfavor. (Tr.239:5–
20) Not only did Respondent purchase the requested new blade, (Tr.62:10–63:2) but Irvine
directed Kerr to immediately post a warning sign in the hose room (Tr.65:11–19; 132:24–133:8;
204:3–11) when he learned about the smoke issue from Kerr and Novak. (Tr.54:13–55:2;
197:12–198:18) The process of learning about, researching solutions (Tr.197:12–198:5; 200:7–
19), identifying the course of action, and remedying the hose room issue resulted in the
installation of a new ventilation system as well as a better chop saw blade within six months.
(Tr.54:13–56:4; 205:14–206:22) The timing of this series of events belies the claim that Irvine
put an “indefinite hold” on anything related to it. Further, Irvine testified that it was not unusual
23

Irvine played a part in developing the evidence that supported the termination (Tr.
91:2-17; 177:3-178:20), and appears to have become the focus of Vega’s belief that management
was aware of his protected activity.

41 FMSHRC Page 714

for a parts request to take some time while research into options was done (Tr.200:7–19) and
stated that a $400 saw blade was insignificant compared to the hundreds of thousands of dollars
Respondent spent for parts each month. (Tr.201:6–17)
As for the quarry haul road, Tranchina, Irvine, and Pearson all testified that they did not
know Vega had raised a concern about the quarry road. In support of this, Kerr testified that he
did not disclose Vega’s identity when he passed the haul road information on to Grayson.
(Tr.123:3–17; 142:1–7; 166:20–167:2; 196:16–23) The evidence of Irvine’s purported hostile
comment questioning what business it was of Vega’s to be raising questions about the quarry
haul road comes only from Vega and is otherwise uncorroborated. (Tr.212:25–213:6) It also
appears that Vega’s belief that there was ill will with Irvine stemming from the earlier grievance
dispute prompted him to vacillate between wanting his involvement in the hose room and haul
road issues kept confidential and at the same time claiming that he did not expect anonymity.
(Tr.223:3–7; 233:24–234:10; 236:21–237:17) Vega also testified that he experienced no change
in work schedule, reduction in wages or benefits, or denial of any training or advancement
opportunity after raising the quarry haul road issue in July or August 2017, or the hose room
issue in January 2017 or August 2017. (Tr.240:11–18)
The Secretary provided evidence of hostility from Irvine toward Vega after Vega’s
termination. Irvine testified that he became upset about the hostile and confrontational tone of
the grievance hearings. (Tr.12:19–183:14; 192:6–9) He felt that he had been maligned by Vega
in the process. (Tr.184:16–186:12; 192:3–5; 194:21–195:3) Then, when Vega filed his MSHA
complaint in this matter, he accused Irvine of singling him out because of his involvement in the
quarry haul road and the hose shop issues. (Tr. 191:4–192:2) In reaction to this, Irvine asked
Pearson and the company attorney, Mike Corrigan, about getting a restraining order against
Vega. Pearson and Corrigan advised Irvine against taking any action, and he did nothing further.
(Tr.186:13–187:20)
I understand that the focus of both the grievance hearing and the follow-up arbitration
hearing was whether the terms of the labor agreement had been violated by Vega’s termination,
and the precise issue of whether protected activity occurred was not essential to the outcome.
However, the failure to even mention Vega’s actions as being potentially protected under the
Mine Act dovetails with Respondent’s claim that its management decision makers had no
knowledge of Vega’s involvement in either the hose room or the quarry road incidents prior to
his termination.
d.

Disparate Treatment

When attempting to show disparate treatment as an indicator of the operator’s
discriminatory motive, “it is incumbent on the complainant to introduce evidence showing that
another employee guilty of the same or more serious offenses escaped the disciplinary fate
suffered by the complainant.” Driessen, 20 FMSHRC 324 (citing Chacon, supra, 3 FMSHRC at
2512). Evidence of four other recent disciplinary actions was produced.
The evidence that Syar employee Birrell received a written warning for failing to
correctly install a gas cylinder gauge cap (Tr.87:23–88:3) and the evidence that an employee

41 FMSHRC Page 715

(Byron) received a written warning for disclosing confidential security vehicle information is not
sufficiently similar to Vega’s case to be persuasive of disparate treatment. (Ex. C–11, p.7; page
7; Tr.88:4–11) I also do not find evidence of Vella’s actions and resulting punishment
persuasive. Respondent disciplined Vella with one day off without pay and a written warning for
witnessing Vega write on the envelopes and not reporting it. (Tr. 87:14–18; 102:6–15; 108:20–
109:1–23) Prior to the paycheck envelope incident, Vella had been disciplined in January 2016
for damaging equipment. (Tr.87:2–6) While related to Vega’s case, Vella’s case is not
sufficiently comparable. As Vella was punished for merely witnessing Vega’s actions and failing
to report them, it is consistent that he would receive a lesser punishment.
Perhaps most relevant to the case at hand is the example given of Javier Lopez, a longtime Syar employee with a history of receiving other discipline. (Tr.114:12–21) Lopez was fired
in 2017 for dishonest acts, i.e., taking excessive work breaks and purposely taking too long to
complete assignments in order to claim the extra time on his timecards. (Exhibit 8; Tr.106:25–
107:176) As in this case, Pearson conducted an extensive investigation of Lopez prior to his
termination, including GPS tracking. Also, Pearson did not talk to Lopez during her
investigation. Her purpose was to gather information in order to catch him in the act and
terminate his employment. (Tr.107:18–108:3)
To Pearson, the false statements Vega left on the envelopes had the potential of causing
the company grief if they tried to fire someone. She speculated that the union might use the false
positive statements on the envelopes as evidence of praise. (Tr.118:23–119:16) Pearson testified
that she would have still recommended Vega’s firing had she known about his safety concerns.
(Tr.110:1–13) CEO Syar was aware that Vega was a union steward and a miners’ representative.
(Tr.73:16–20; 74:8–16) Nonetheless, he also stated that he would have authorized the firing even
had he known about the safety complaints. (Tr.80:14–22)
Given the previous examples and testimony, the record of Respondent’s prior disciplinary
actions does not support the claim that Vega was singled out or treated with disproportionate
severity. There is no circumstantial nexus between Vega’s protected activity and the discipline
he received in response to the note writing stunt. My task is not to second guess Respondent’s
business judgement. Other decision makers faced with the same circumstances may well have
chosen to impose less severe discipline. What is relevant here is whether the chosen course was
disproportionate when compared to other disciplinary actions taken by this employer.
Respondent’s disciplinary response to Vega’s writing on the pay envelopes is reasonably
proportional to prior disciplinary instances.
e.

Vega’s Belief That His Termination Was Motivated by Ill Will
Toward His Protected Activity Is Not Credible

Vega’s characterization of the nature of the hose room and haul road issues as safety
concerns and his theory about Respondent’s reaction to those issues is not convincing.
Additionally, Vega’s testimony is subject to question because it reveals little more than his belief
that management was hostile to him. (Tr.221:18–24) Respondent’s agents did nothing prior to
the termination that supports Vega’s belief that the ill will he perceived had anything to do with
his protected activity. Indeed, a preponderance of evidence shows that Syar’s management

41 FMSHRC Page 716

reacted to the two event allegations promptly and appropriately, given their understanding of the
circumstances.
Vega attributed to Kerr and Novak much of the evidence about his involvement in the
protected activity and management’s supposed knowledge of it. But, Kerr did not confirm
Vega’s claims sufficiently to render them convincing in the context suggested by Vega
(Tr.123:18–21), and because Novak was not made available as a witness, statements attributed to
him by Vega (Tr.219:8–25) carry little weight. What is left is Vega’s belief that management
harbored ill will toward him. However, even this suggestion is attenuated by the fact that it
appears to refer to events arising from a grievance involving an injury to his shoulder years
before and not the two incidents of protected activity in this case. (Tr.52:8–19; 64:19–25; 213:7–
215:22; 173:8–174:8; 213:22–215:8) Given the lapse of years between Vega’s shoulder injury and
this controversy, it is at most unconvincing and borders on irrelevant. If there were evidence
showing ill will, and the source of the ill will was something other than unrelated historical
events, the ill will mentioned by Hayes, Vega, and Kerr might carry more weight. Without such a
reshuffling of the factual deck, Vega’s belief that ill will motivated his termination is simply not
credible enough to have convincing weight.
To summarize, the Secretary has introduced no evidence showing (1) that Respondent or
its management had knowledge of Vega’s protected activity; (2) that management demonstrated
hostility or animus towards Vega as a result of his protected activity; (3) that any reasonable
inference of discriminatory motive can be drawn from the coincidence in time between Vega’s
protected activity and his terminated for misconduct; or (4) that management engaged in
disparate treatment of Vega when it terminated him for his misconduct. The Secretary has thus
failed to prove the prima facie case of discrimination by a preponderance of the evidence.
Pasula, supra, 2 FMSHRC at 2799; Turner v. National Cement Company of California, 33
FMSHRC 1059, 1065–1066 (May 2011).
D.

Respondent’s Affirmative Defense and Pretext

A thorough review of the evidence as applied to relevant legal precepts leads me to
conclude that Vega’s claims fail. Vega engaged in section 105(c) protected activities, and his
termination was an adverse action. However, there was insufficient evidence to infer or find a
causal nexus between Vega’s protected activities and his termination. I conclude that Vega and
the Secretary have failed to prove a prima facie case of section 105(c)(3) discrimination. Even if
Vega had met the prima facie burden, ultimately, I find that Respondent has provided sufficient
evidence to rebut the prima facie case, or, alternatively, to prove the affirmative defense that
Vega’s termination was motivated by unprotected activity.
Under section 105(c), 30 U.S.C. § 815(c), the operator may rebut the miner’s prima facie
case by showing either that no protected activity occurred or that the adverse action was in no
part motivated by the protected activity. Pasula, 2 FMSHRC at 2799–800. If an operator cannot
rebut the prima facie case in these ways, it may still affirmatively defend its position by proving
that it was also motivated by the miner’s unprotected activity and would have taken the adverse
action for the unprotected activity alone. See Robinette, 3 FMSHRC at 817–18; Pasula, 2
FMSHRC at 2799–800; see also E. Assoc. Coal Corp., 813 F.2d at 642–43 (applying Pasula-

41 FMSHRC Page 717

Robinette test). It is not enough under section 105(c) for the operator to show that the miner
deserved to be fired for engaging in the unprotected activity. The operator must show that it did,
in fact, consider the miner deserving of discipline for engaging in the unprotected activity alone
and that it would have disciplined him in any event. Id. at 2800; Robinette, 3 FMSHRC at 817–
18; See also E. Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987).
The Commission has explained that an operator’s business justification defense should
not be “examined superficially or be approved automatically once offered.” Haro v. Magma
Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982). An asserted reason may be found to be
pretextual “where the asserted justification is weak, implausible, or out of line with the
operator’s normal business practices.” Sec’y of Labor on behalf of Price v. Jim Walter Res., Inc.,
12 FMSHRC 1521, 1534 (Aug. 1990). In the context of other federal discrimination statutes, “[a]
Plaintiff may establish that an employer’s explanation is not credible by demonstrating either (1)
that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually
motivate his discharge, or (3) that they were insufficient to motivate discharge.’” Turner, 33
FMSHRC at 1073 (emphasis in original) (citations omitted). While the intermediate steps of the
Pasula-Robinette test include shifting burdens, the ultimate burden of persuasion on the question
of discrimination remains with the complainant. Robinette, 3 FMSHRC at 818 n.20.
Here, the Secretary and Vega attack the credibility of the proffered explanation by
showing circumstances which tend to prove that an illegal motivation was more likely than that
offered by the employer. In other words, the plaintiff argues that the weight of the circumstantial
evidence of discrimination proves that the employer's explanation is a pretext. I find that
Respondent’s reason for terminating Vega was plausible and not pretextual. First, Respondent’s
witnesses’ testimony that no one in management knew anything about Vega’s protected activity
until after his termination for writing the notes on the pay envelopes is coherent, plausibly
supported by the evidence showing that Vega did not want his involvement in the hose room or
haul road incidents disclosed, and is more convincing than the evidence to the contrary. Pearson,
Irvine, and CEO Syar all testified believably that their first knowledge of Vega’s claim to have
been involved in the two incidents of protected activity came in the form of his MSHA
complaint, weeks after the termination and the subsequent (and multiple) union grievance
hearings. The only evidence to the contrary is either from Vega himself, and lacking in
convincing corroboration, or more plausibly related to the earlier shoulder injury incident and
resulting grievance that Vega himself saw as the reason to keep his involvement unmentioned.
The credibility of Vega’s claim of retaliatory discharge is also undercut by the fact that,
other than the initial mention of smoke in the hose room to a coworker months earlier, the
substance of Vega’s alleged protected activity did not manifest itself until in and after July
2017, the same timeframe when Vega was writing on the pay envelopes. It is troublingly
plausible that Vega decided to use the two protected activity incidents as a second line of defense
against being fired in the event the union grievance process failed to bring the results he wanted.
I find that Respondent’s proffered reason for firing Vega had a basis in fact and was
sufficient to motivate the termination. I also find that the proffered reason actually motivated the
discharge. It is reasonable that an employer would terminate an employee who admitted to
impersonating a supervisor. There is substantial evidence to support the plausibility of

41 FMSHRC Page 718

Respondent’s stated reason for discharging Vega. Accordingly, I find that Respondent’s reason
for terminating Vega is plausible and not pretextual.
VI. CONCLUSIONS OF LAW
The Secretary and Vega failed to establish a prima facie case of discrimination under
section 105(c)(3) of the Mine Act. Respondent’s stated reason for terminating Vega was
plausible and not pretextual. Respondent affirmatively defended the termination. Based on a
thorough review of the record, I conclude that the Secretary and Vega failed to prove, by a
preponderance of the evidence, that Respondent discriminatorily terminated him in violation of
section 105(c) of the Act.
Since there was no violation of the Act, Vega’s claim for an award of lost wages during
the time between his termination and his reinstatement through the union grievance process is
denied.
VII. ORDER
Anthony Vega’s complaint and this proceeding are DISMISSED.

/s/ L. Zane Gill
L. Zane Gill
U. S. Administrative Law Judge

Distribution:
Anthony Vega, 1125 Wildplum Ct, Vacaville, CA 95697
Abigail G. Daquiz, Esq., Verónica Meléndez, Esq., U.S. Department of Labor, Office of the
Solicitor, 90 7th St, Ste 3–700, San Francisco, CA 94103–1516 daquiz.abigail@dol.gov
melendez.veronica@dol.gov
Bradley B. Johnson, Esq., Harrison, Temblador, Hungerford, and Johnson LLP, 2801 T St,
Sacramento, CA 95816 bjohnson@hthjlaw.com
Michael D. Corrigan, Esq., Syar Industries, Inc., 2301 Napa-Vallejo Hwy, Napa, CA 94558
mcorrigan@syar.com

41 FMSHRC Page 719

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

November 6, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of ANTHONY VEGA
Complainant,

DISCRIMINATION PROCEEDING
Docket No. WEST 2018-0223 - DM
MSHA Case No. WE MD 18-02
Mine: Napa Quarry
Mine ID: 04-00023

v.
SYAR INDUSTRIES, INC.,
Respondent.

AMENDED DECISION AND ORDER
Appearances:

Abigail G. Daquiz, Esq., Verónica Meléndez, Esq., U.S. Department of
Labor, Office of the Solicitor, San Francisco, CA, for Complainant
Bradley B. Johnson, Esq., Harrison, Temblador, Hungerford, and Johnson,
LLP, Sacramento, CA, for Respondent
Michael D. Corrigan, Esq., Syar Industries, Inc., Napa, CA, for
Respondent

Before:

Judge L. Zane Gill

The decision that I issued November 5, 2019, is hereby amended pursuant to Commission
Rule 69(c), 29 C.F.R. 2700.69(c) to read, as set forth below.
I. STATEMENT OF THE CASE
This proceeding arises from section 105(c)(2) of the Federal Mine Safety and Health Act
of 1977 (“Mine Act” or “Act”), 30 U.S.C. § 815(c)(2). The Secretary of Labor (MSHA) on
behalf of Anthony Vega alleges here that Syar Industries terminated Vega’s employment as a
heavy equipment mechanic at Syar Industries’ Napa, California quarry and shop because he
engaged in protected activity. Respondent argues that the Secretary has failed to meet his burden
to establish a prima facie case because no adverse employment action was taken against Vega
and, even if Vega’s termination were deemed adverse employment action, there is no causal
nexus between the adverse action and the protected activity.
For the reasons that follow, I find that Vega engaged in section 105(c) protected activities
and that his termination was an adverse action. However, I find that there is insufficient evidence
to infer a causal nexus between Vega’s protected activities and his termination. For this reason, I
find that the Secretary has failed to state a prima facie case for a section 105(c)(2) discrimination

41 FMSHRC Page 720

claim. Even if the Secretary were to have met his prima facie burden, ultimately, I also find that
Respondent has provided evidence sufficient to rebut the prima facie case and affirmatively
defend its claim that Vega’s termination was motivated by unprotected activity.
II. STIPULATIONS
The parties’ joint prehearing statement dated October 18, 2018, included the following
stipulations:1
1. Respondent is subject to the jurisdiction of the Federal Mind Safety and Health Act of
1977, found at 30 U.S.C. § 801, et seq.
2. Jurisdiction exists because Respondent is, and was at all times relevant to this
proceeding, an operator of a mine, as defined in Section 3(b) of the Mine Act, found at
30 C.F.R. Section 803(b), and the products of the subject mine entered into the stream of
commerce or the operations thereof affected commerce within the meaning and scope of
Section 4 of the Act, found at 30 U.S.C. § 803.
3. The Federal Mine Safety and Health Review Commission and this administrative law
judge have jurisdiction over this proceeding, pursuant to Section 105 of the Mine Act.
4. Respondent is and was, at all times relevant to this proceeding, engaged in mining
activities at the Napa quarry, including the Napa shop, located in or near Napa,
California, Mine ID Number 04-00023.
5. This proceeding was initiated by a timely complaint submitted by Anthony J. Vega
under section 105(c) of the Mine Act, known as ‘the Vega complaint,” which complaint
may be admitted into evidence for the purpose of establishing its issuance.
6. The penalties proposed by the Secretary in this proceeding will not affect Respondent's
ability to continue in business.
7. Mr. Vega began working for Respondent Syar in 1995.
8. Mr. Vega served as the miners’ representative for Respondent Syar at the Napa shop
from at least January 1, 2017, through the day his employment was terminated.
9. Mr. Vega served as the union steward for Operating Engineers Local from at least
January 1, 2017, through the day his employment was terminated
10. In July, August, and September of 2017, Mr. Vega wrote on the outside of some
envelopes containing pay stubs and paychecks located on the reception counter of the
Napa quarry offices where employees from both the Napa quarry and Napa shop sign in
1

A fourteenth stipulation noting Vega’s hourly rate, fringe benefits, and missed
workdays has been excluded for relevance.

41 FMSHRC Page 721

and out on a daily basis. Mr. Vega wrote the following messages on envelopes of his
coworkers: “Thanks for all your good work - RT”; “I know I don’t say this often
enough, I am glad you are on board with us. Keep up the good work. - RT”; “There is
nothing more pleasing than hearing the sound of your voice over the radio in the
morning - RT”; “I see greatness in your future here at Syar - RT”; “Doing a great job
Jose - RT”; “if it wasn’t for you and Tyler, I don’t know how I would run this show! RT.”
11. Respondent Syar terminated Mr. Vega’s employment with the company on September
11, 2017. Respondent Syar cites the following reasons for terminating Mr. Vega’s
employment: Mr. Vega’s employment was terminated because it was Respondent's
determination that Mr. Vega falsely impersonated a company manager by writing
messages on employee pay envelopes and signing those messages using the manager’s
initials. In addition to falsely impersonating a manager, Vega’s employment was
terminated because he repeatedly forged a manager’s initials, repeatedly tampered with
other employees’ property, harassed at least one employee through inappropriate
messages on the employee’s paycheck envelope, and made employment promises by
signing a manager’s name to comments that provided feedback on employment
performance, all in violation of the law and/or written company policy.
12. Respondent disputes the Vega complaint.
13. Pursuant to a decision by this administrative law judge, after a temporary reinstatement
hearing on January 4, 2018, Anthony J. Vega was reinstated to his position as a heavyduty mechanic at Respondent's Napa shop on January 15th, 2018, and remains in that
position as of the date of this stipulation.
III. FACTUAL AND PROCEDURAL BACKGROUND
Respondent, Syar Industries, operates quarries, sand and gravel operations, asphalt
paving plants, redi-mix concrete plants, and recycling facilities in the North San Francisco Bay
area of California. The quarry where these events transpired is located in Napa, California. (Ex.
C–1, p.v)2 At the time of his termination, Anthony Vega had worked for Syar Industries as a
heavy equipment mechanic for twenty-two years. (Tr.12:10–13; 208:22–209:1; St. 7) In addition
to his mechanic duties (Tr.145:16–19), Vega served as a union steward and miners’
representative. (Tr.44:3–5; 74:8–16; 210:17–211:1; St. 8; St. 9) As part of his union duties, Vega
was expected to bring safety issues to management’s attention. (Tr.21:14–20; 211:2–9) Vega
reported to Ken Calvin, who in turn reported to James Irvine, the purchasing manager, Napa
shop supervisor and equipment rolling stock manager. (Tr.170:7–10; 209:5–9)
2

For the sake of clarity, the following abbreviations will be used in referencing evidence
in the record: “Ex. C” will refer to Complainant Vega’s exhibits; “Ex. R” will refer to
Respondent Syar Industry’s exhibits; “Tr.” will refer to the hearing transcript; “St.” will refer to
the stipulations included in the parties’ joint prehearing statement dated October 18, 2018; “AR”
will refer to any document in the Administrative Record that is not part of Complainant’s
exhibits, Respondent’s exhibits, or part of the hearing transcript.

41 FMSHRC Page 722

Vega alleges that he was fired for raising two safety-related issues, the first involving a
haul road in a quarry area, the second involving a hose cutting blade that generated smoke in the
hose shop. Respondent maintains that the people involved in firing Vega knew nothing about his
involvement in either safety issue and that their sole reason for terminating Vega was his
repeated and admitted writing on other workers’ pay envelopes, which the Respondent regarded
as forgery, intentional impersonation of a manager, harassment of a fellow worker, and likely to
create unjustified employee expectations.
Vega was terminated on September 11, 2017. A grievance hearing held on November
1, 2017, deadlocked on the issue of reinstatement, triggering a subsequent arbitration hearing on
January 15, 2018, at which Vega was reinstated to his prior position.3 (Tr.110:14–17; 193:8–9;
240:19–241:1) Vega and the Secretary filed this discrimination action on November 6, five days
after the November 1 grievance hearing. (Tr.193:17–194:2) Vega and the Secretary initiated a
temporary reinstatement action (WEST 2018-0135) with this agency after the union grievance
process was completed. I conducted a temporary reinstatement hearing on January 4, 2018, and
issued a decision on January 11, 2018, preserving Mr. Vega’s employment and related status quo
issues.4 (St. 13) Vega returned to work on January 15, 2018. (Tr.229:23–24)
This merits action was filed on February 12, 2018.5 In it, Mr. Vega seeks restoration of
lost wages, and the Secretary asks for statutory remedies, items either not awarded or unavailable
through the union grievance process. I have determined that neither the restoration of lost wages
nor the requested statutory remedies will be awarded. The penalties requested by the Secretary
will not be ordered.

3

Vega was reinstated to his position prior to the issuance of this decision. Vega’s
reinstatement was the result of a union grievance process conducted independently of the
hearings for this case and my decision has no effect on Vega’s reinstatement as an employee of
Syar Industries.
4

The Board of Adjustment hearing was postponed four times. (Tr.244:4-7)

5

The Secretary filed an Amended Complaint on July 16, 2018.

41 FMSHRC Page 723

IV. SUMMARY OF THE FACTS6
The court made a record of the parties’ testamentary and documentary evidence at a
hearing held in Vacaville, California on October 25–26, 2018. The parties filed post-hearing
briefs.
A.

Protected Activity

Vega claims the Respondent fired him because of two safety-related issues he raised in
his capacity as a miners’ representative and union steward. (Ex. R–2) The safety issues involved
smoke from a chop saw in the hose room and concerns about the quarry haul road. Vega raised
these issues about the same time he began writing on the envelopes. (Tr.236:16–24) He claims
that the actions he took to bring attention to these safety issues constituted protected activity, and
that Respondent retaliated against him by firing him under the pretext of his writing notes on the
pay envelopes.7 (Ex. R–2)
1.

Smoke In The Hose Room

The first safety issue Vega claims to have raised with management involved smoke from
a chop saw located in a special hose room at the Napa shop where Vega and his co-workers
fabricated and repaired hydraulic hoses. (Tr.49:20–22; 50:7–19) The chop saw used to cut these
hoses would frequently generate smoke that concerned Vega and Robert Hayes, a fellow heavy
equipment mechanic. (Tr.50:21–51:13; 53:4–54:12; 132:14–18; 216:6–217:2; 220:19–25) Vega
and Hayes believed that the company should replace the chop saw blade to eliminate this excess
smoke, which they worried was dangerous to breathe.8 Vega spoke to safety and environmental
technician James Kerr about the smoke in the hose shop in January, 2017.9 (Tr.126:3–5; 233:6–
9) Vega told Kerr he was worried that the hose smoke might be toxic. (Tr.216:6–17; 221:1–7)
6

The findings of fact are based on the record as a whole and my careful observation of
the witnesses as they testified. In resolving any conflicts in testimony, I have taken into
consideration the interests of the witnesses, all consistencies or inconsistencies in their
testimony, and their demeanor. Any failure to analyze each witness’s testimony is not a failure to
have fully considered it. The fact that some evidence is not discussed does not mean that it was
not considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000) (administrative law judge is
not required to discuss all evidence, and failure to cite specific evidence does not mean it was not
considered).
7

“I believe [Respondent] [. . .] used this excuse to terminate me rather than fix the safety
concerns that I thought I had protections under section 105(c) of the Federal Mine and Safety
Act.” (Ex. R–2)
8

Although there had been a hose saw smoke issue for ten years (Tr.220:19-2), January
2017 was the first time Vega saw hose particles released when cutting. (Tr.221:1-7)
9

Kerr was formerly a parts runner until 2012. (Tr.126:6-11) Kerr did safety inspections
and miner training. He also conducted weekly safety meetings. (Tr.126:13-20)

41 FMSHRC Page 724

Kerr researched the issue on the internet to see if he could determine whether the smoke was
toxic and found no answer.10 (Tr.216:18–22) Vega did not speak to management about the
smoke issue for several months. (Tr.233:16–19) In the interim, however, he personally
conducted research and found a new blade that he thought the company should buy.
Out of concern that management would intentionally ignore his recommendation, Vega
requested that Hayes ask for the new blade. 11 (Tr.217:11–22) Although Hayes testified that he
considered the purchase of better blades an efficiency issue rather than a safety issue (Tr.61:18–
63:2; 66:14–68:10), he agreed that management might ignore or delay responding to a parts
request for the blade if it came from Vega. (Tr.51:22–53:3; 64:10–65:9) According to his
testimony, Irvine was unaware of Vega’s involvement with this safety complaint. (Tr.198:19199:4) Hayes submitted the blade request in July 2017. Vega followed up with parts runner
Randy Novak about a week later to ask if and when a new blade would be installed. (Tr.217:23–
218:7) According to Vega’s testimony, Novak told him that Irvine directed him to research what
blades other companies were using to cut their hoses. While Irvine and Novak began to research
the issue (Tr. 132:24–133:8; 197:12–198:18), Irvine promptly dealt with the smoke issue by
posting a warning sign directing workers to wear a respirator when cutting hoses. (Tr. 65:11–19;
199:5–9)
Vega followed up with Novak again in another week. According to Vega’s testimony,
Novak informed him that Irvine put the blade issue on indefinite hold. (Tr.218:24–219:7) Vega
assumed that the reported delay in buying the new blade was because of Irvine’s dislike of Vega.
(Tr.221:18–24) Vega responded by telling Novak that if Irvine blocked the blade request, he
would approach MSHA with a safety complaint. (Tr.219:8–13) Vega surmised that Irvine could
have overheard this statement since his conversation with Novak occurred just a few feet outside
Irvine’s office door. (Tr.219:14–25)
Vega broached the subject of the new blade once more on August 23, 2017, when he
recommended to Kerr that the company should invest in a diamond hose saw blade or improve
the ventilation system in the hose room. Kerr then spoke to Irvine about the blade and ventilation
information. (Tr.130:15–20; 133:9–134:10) Irvine ultimately purchased the blade Hayes had
requested (Tr.62:10–63:2), but the issue had a broader ultimate resolution. Within six months,
the entire ventilation system was revamped and replaced. (Tr.55:24–56:4)

10

Vega testified that he believed his conversation with Kerr would remain anonymous.
(Tr.237:3-17) However, Vega did not specifically ask Kerr to keep the conversation private.
(Tr.237:18-20)
11

Kerr stated that Vega had requested saw blades in his own name before, and Irvine had
never objected to nor expressed any disfavor of Vega’s requests. (Tr.239:5-20) Kerr never
sensed that management would be displeased to learn that the request for a new blade came from
Vega. (Tr.137:14-138:4)

41 FMSHRC Page 725

2.

The Haul Road

In July 2017, a miner approached Vega about a near miss incident on the haul road at the
Napa quarry. (Tr.211:10–14) In his capacity as a miners’ representative, Vega spoke to Kerr
about the incident. (Tr.126:3–5; 128:23–129:10; 136:13–25; 211:10–212:2) Vega asked Kerr
about the applicable regulations for road width and proper signage. (Tr.129:5–10; 211:15–212:6)
Kerr checked on his computer, but was unable to find answers for Vega. (Tr.129:11–13; 212:3–
6) Kerr then spoke to Irvine about the issue. (Tr.129:2–18; 196:16–20) Irvine testified that he did
not know Vega had anything to do with the issue at the time. (Tr.196:16–20) Irvine instructed
Kerr to inform Rick Tranchina and Jamal Grayson, the Napa Quarry Safety Director, about the
haul road issue. (Tr.129:14–130:4; 196:24–197:2) Kerr immediately contacted Greyson to notify
him. (Tr.129:19–23; 145:20–146:4)
Vega followed up with Kerr about a week later. (Tr.212:7–11) Kerr told Vega he had
spoken to Irvine. Vega claimed that Kerr told him, “James Irvine wanted to know why it was
any of [Vega’s] business performing mining duties in the quarry when [he is] the Napa
shop’s miners’ rep.” Id. Vega testified that he asked Kerr “why he narked [him] out to
[Irvine], because he knows [Irvine] doesn’t like [Vega].”12 (Tr.212:25–213:6) According to
Vega, Kerr said nothing more and walked away. (Tr.213:3–6) Kerr testified that he does not
recall following up with Vega about the road. (Tr.130:5–15) Tranchina testified that he was
alerted to the haul road safety issue on August 10, 2017, from Grayson. (Tr.145:20–22;
159:10–23; 165:12–166:7) Tranchina told Grayson to look into it the same day. (Tr.165:12–
22) Grayson learned that operations had ceased in the area of the quarry served by the haul
road before this issue was raised and the haul road had already been shut down, except for
police traffic. The road was also in compliance with applicable MSHA regulations.
(Tr.165:23–166:7)
B.

Writing Notes on Pay Envelopes

Pay envelopes were routinely laid out in the Napa quarry shop office for distribution. In
the summer of 2017, Vega noticed that some of the pay envelopes lying on the counter waiting to
be picked up by other miners had smiley faces and positive notes written on them. (Tr.146:12–
147:1; 223:8–18; 236:12–15) These writings inspired him to write his own notes on some of the
envelopes as a prank. (Tr. 26:12–22; 223:19–21; 224:1–12)
Tranchina supervised the Napa shop employees whose pay envelopes were involved in
Vega’s prank. (Tr.144:13–18; 172:3–10; 223:22–25)13 At first, Vega’s messages did not indicate
12

Vega testified that he believed his conversation with Kerr about the haul road issue
would remain anonymous. (Tr.138:5-8; 237:3-17) However, Vega did not specifically ask
Kerr to keep the conversation private. (Tr.237:18-20) Kerr stated that Vega had requested saw
blades in his own name before, and Irvine had never objected to nor expressed any disfavor of
Vega’s requests. (Tr.239:5-20) Kerr never sensed that management would be displeased to
learn that the request for a new blade came from Vega. (Tr137:14-138:4)
13

Tranchina did not have authority to supervise or discipline Vega. (Tr.164:20165:4)

41 FMSHRC Page 726

who they were from, but eventually he started adding Tranchina’s initials, “RT”, to the
envelopes. (Tr.223:22–25) At least one employee initially believed the notes were from
Tranchina. (Tr.45:17–46:1; 57:19–58:17) Some employees thought the notes were funny and out
of character for Tranchina. (Tr.46:13–20) Some workers asked Tranchina if the notes were really
from him. (Tr.153:18–24) Vega told some of his co–workers that it was he, not Tranchina, who
had left notes on the envelopes. One co–worker, going along with the joke, asked Vega why he
had not received a note from Tranchina. Vega put a note on his envelope the next day.
(Tr.224:13–25)
Tranchina was upset when he became aware of the notes on the pay envelopes.
(Tr.160:14–161:1) Particularly, he was concerned that the as yet unidentified japer had attributed
the comments to him by using his initials. (Tr.161:2–22) Tranchina hoped that the notes might
stop without his intervention (Tr.169:2–4), but this was not the case. When the prank continued,
he called a meeting to tell the employees that the notes were inappropriate and had to stop.
(Tr.151:10–153:3; 162:1–6; 164:11–19) One of the employees told Tranchina it was Vega who
was writing the notes. (Tr.46:21–47:8) According to Tranchina, the miners he spoke with felt
that the prank was out of the ordinary. (Tr.153:25–154:5) Although Vega’s stunt caused no real
problems for the Respondent (Tr.162:7–13), in management’s estimation it created a risk of
confusion and dissent among the miners. (Tr.163:15–164:5) Tranchina testified that at least one
miner whom he supervised was not deserving of the prank praise he was receiving. (Tr.162:14–
163:4)
Tranchina met with Ann Pearson, the personnel manager, on August 4, 2017, to discuss
the writing on the pay envelopes. (Tr.82:18–25; 89:7–13; 118:1–14; 154:12–20; 160:7–13;
169:5–8) Tranchina testified that he neither liked nor disliked Vega. (Tr.167:15–18) He had
never had an unpleasant interaction with Vega prior to the firing and (Tr.167:19–21) he did not
speak with Vega or Tom Vella, a witness to the prank, about the envelope writing. (Tr.154:21–
155:2) Pearson decided to install a surveillance camera in the office to catch the culprit in the act.
(Tr.167:3–7) She authorized Tranchina to buy and install the camera and alerted Irvine of her
decision. (Tr.147:9–15; 150:6–15; 176:7–13) Pearson testified, and Irvine confirmed, that she
did not tell him what had prompted the installation of the camera. (Tr.176:14–17) Nor did
Pearson alert Vega of the installation, hoping to develop proof of his prank to make sure she had
correctly identified the culprit. (Tr. 97:6–18; 103:22–104:13) Tranchina spoke to Irvine about the
writing incident when the camera was installed, but there is no evidence that he communicated to
Irvine that Vega had raised a safety complaint. (Tr.155:11–13; 166:24–167:2)
The camera was functional within two weeks, and more altered envelopes were
discovered.14 (Tr.94:16–19; 150:19–151:2) Vega did not stop writing on the envelopes until early
September, 2017, when he heard about the installation of the surveillance camera from a coworker. (Tr.225:16–226:8; 234:13–235:14) Vega testified that when he realized that
management regarded his prank as a serious offense, he regretted that he had not stopped before
getting caught. (Tr.226:9–14) Vega also testified that he felt he was treated unfairly by
management because he had not received a warning not to write on the envelopes prior to his
14

For example, Tranchina discovered two more envelopes on September 5, 2017, and
exchanged them with unmarked replacements. (Tr.151:6-9; 161:23-25)

41 FMSHRC Page 727

dismissal. (Tr.226:15–19) He reinforced this sense of unfairness at the hearing when he testified
that he brought this discrimination action to send Syar Industries a message to be more
circumspect in its dealings with miners’ representatives in the future. (Tr.243:1–4)
C.

The Decision to Fire Vega

Pearson determined it was appropriate to fire Vega as early as August 4, 2017, the day
she and Tranchina discussed the note writing for the first time. (Tr.89:7–13; 98:2–5) She
considered the note writing a matter of dishonesty. As she saw it, Vega had impersonated a
manager. (Tr.110:7–13) Tranchina and Pearson did not discuss any option for Vega other than
firing because the violation was so severe in their estimation. (Tr.148:21–149:9) Pearson spoke
to Respondent’s CEO, James Syar, to secure his consent. (Tr.75:5–15)15 CEO Syar testified that
he considered what Vega had done an act of forgery.16 (Tr.77:3–12) To him, it was of significant
importance that Vega was handling other people’s paychecks. (Tr.78:25–79:3) He believed it had
the potential to mislead the processing banks. (Tr.77:8–12) CEO Syar also spoke with Irvine
about terminating Vega. (Tr.76:2–11)
The surveillance camera captured two video clips that identified Vega and Vella in the
Napa quarry shop office at the time when Vega wrote on the pay envelopes. (Tr. 95:21–96:11;
100:23–25; 102:9–11; 104:20–105:1; 109:14–18) To bolster the video evidence, Pearson asked
Irvine to gather handwriting samples from Vega and Vella. Later, in response to a request by
Pearson, Irvine identified a sample of Vega’s writing based on his personal knowledge, having
seen Vega’s writing on many occasions over the 10–15 past years. (Tr. 91:2–17; 177:3–19)
Pearson conferred with company attorneys and CEO Syar and got approval to hire a handwriting
expert to develop evidence to support whatever disciplinary action might be taken. (Tr.78:12–
79:3; 92:13–15; 93:21–23; 96:4–11; 104:14–19) The expert was hired in early September, 2017
(Tr.96:7–11), and confirmed Vega’s writing from two anonymous writing samples. (Tr.97:20–
98:1; 105:2–9) When Pearson confronted Vega with copies of the pay envelopes, Vega admitted
to writing on them. (Tr.227:12–17) Pearson told Vega about the camera and the handwriting
expert. (Tr.227:18–25)
Vega was terminated on September 11, 2017, (St. 11) and Vella was disciplined with one
day off without pay and a written warning for witnessing and failing to report Vega’s prank. (Tr.
87:14–18; 102:6–15; 108:20–109:1–13) According to the parties’ joint stipulations, Respondent
terminated Vega because: (1) it determined that he falsely impersonated a company manager by
writing messages on employee pay envelopes and signing the messages using the manager’s
initials; and, (2) because Vega repeatedly forged a manager’s initials, repeatedly tampered with
other employees’ property, harassed at least one employee through inappropriate messages on
the employee’s paycheck envelope, and made employment promises by signing a manager’s
name to comments that provided feedback on employment performance, all in violation of

15

Neither Tranchina nor Irvine advised Pearson or CEO Syar to fire Vega. (Tr.165:5-11;
199:13-23)
16

The termination notice did not mention forgery. (Tr.99:11-25)

41 FMSHRC Page 728

written company policy. (St. 11) The stated reason for Vega’s termination was for “falsely
impersonating a company manager by writing messages.”1 (Tr.100:1–5; 114:22–115:13)
D.

The Grievance Process

The labor agreement between Respondent and the Operating Engineers’ Local Union,
No. 3 (of which Vega was a member) provided a grievance and arbitration framework to resolve
disputes between the Respondent and its union employees. (Ex. C–3, p.33) The Union invoked
the labor agreement to challenge Vega’s termination. (Tr.41:22–42:2) The first step in the
grievance resolution process was a Board of Adjustment (BoA) hearing, which was held on
November 1, 2017. (Tr.34:8–12; 240:19–241:6) At the hearing, Vega stated he thought the
termination was ridiculously harsh for such a minor offense. (Tr.228:1–7) The BoA deadlocked
on the issue of whether Vega had been terminated in violation of the labor agreement. (Tr. 35:1–
5; 111:4–7; 179:14–20; 180:2–19) No mention of safety issues or protected activity was made in
the November 1, 2017 BoA hearing. (Tr.193:10–16)
The labor agreement stipulated that Vega’s case proceed to arbitration to resolve the
deadlock. (Tr.180:23–181:1) The arbitration was conducted on January 15, 2018, (Tr.229:19–
230:2), after the temporary reinstatement hearing of January 4, 2018. It resulted in Vega’s
reinstatement to his former position (Tr.229:25–230:2), but it did not restore his lost wages and
benefits. (Tr.42:9–13; 229:25–230:2; 250:19–25; St. 13) Vega filed this discrimination complaint
five days after the BoA hearing failed to reinstate him. (Tr.111:4–7) This was the first time Vega
formally raised the issue of his protected activity. (Tr.241:12–17)
V. ANALYSIS OF THE ISSUES
Although the basic factual backgrounds of both protected events are outlined above to
establish a storyline, the following includes contested factual details along with analysis and
findings. It is fundamental that the ALJ, as trier–of–fact, assess the credibility of all witnesses
and determine the weight their testimony deserves. See Farmer v. Island Creek Coal Co., 14
FMSHRC 1537, 1541 (Sept. 1992) (“[A] Judge's credibility resolutions cannot be overturned
lightly.”).
A.

Prima Facie Case

Under section 105(c)(1) of the Mine Act, a miner cannot be discharged, discriminated
against, or interfered with in the exercise of his statutory rights because he “has filed or made a
complaint under or related to this Chapter, including a complaint notifying the operator […] of
an alleged danger or safety or health violation.” 30 U.S.C. § 815(c). To establish a prima facie
case of discrimination under section 105(c)(1), Vega is required to show: (1) that he engaged in a
protected activity; and, (2) that the adverse action he complains of was motivated, at least in part,

41 FMSHRC Page 729

by that activity.17 Driessen v. Nev. Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Sec’y of
Labor on behalf of Robinette v. United Castle Coal, Co., 3 FMSHRC 803 (Apr. 1981); Sec’y of
Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on
other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d. Cir. 1981).
B.

Protected Activity

To satisfy the first prong of the Pasula-Robinette test for a prima facie case of
discrimination, Vega must show that he engaged in protected activity.18 Driessen, 20 FMSHRC
at 328; Robinette, 3 FMSHRC at 803; Pasula, 2 FMSHRC at 2786. Protected activity under the
Act has been found to include making a complaint to an operator or its agent of “an alleged
danger or safety or health violation,” see Sec’y of Labor on behalf of Davis v. Smasal
Aggregates, LLC, 28 FMSHRC 172, 175 (Mar. 2006) (ALJ), and reporting potential safety or
health hazards to MSHA or an MSHA inspector, see Sec’y of Labor on behalf of Chaparro v.
Comunidad Agricola Bianchi, Inc., 32 FMSHRC 206 (Feb. 2010) (ALJ). I must determine
whether the evidence in total, including the inferential evidence, has sufficient circumstantial
weight to satisfy his prima facie burden to show discrimination.
I find that Vega engaged in two instances of protected activity in relative temporal
proximity to his termination on September 11, 2017. Respondent does not dispute that Vega’s
17

The legitimacy of the Pasula-Robinette framework was challenged in Sec’y of Labor
on behalf of Riordan v. Knox Creek Coal Corp., 38 FMSHRC 1914 (Aug. 2016). In Riordan, the
respondent mine operator argued that the Pasula-Robinette test was no longer appropriate
because the Supreme Court invalidated the burden shifting framework in the ADEA and Title
VII contexts. Id. at 1919. The Commission, citing the legislative history and intent of the Mine
Act, found that the burden shifting framework of the Pasula-Robinette test is still applicable and
appropriate. “Congress envisioned such a burden shifting framework when drafting the
discrimination protections of section 105(c)(1) […] Given the distinct history and legislative
intent of the Mine Act, we do not find Gross and Nassar to be controlling for discrimination
proceedings under the Mine Act. The Commission’s reasoning in Pasula was sound, and we
decline to overturn it.” Id. at 1921.
18

When a complainant asserts that he engaged in a protected activity that is not expressly
enumerated under the Mine Act, the activity may still be protected if it furthers the purpose of
the legislation. Hopkins Cty. Coal, LLC, 38 FMSHRC 1317, 1323 (June 2016) (citing Pasula, 2
FMSHRC at 2789). In determining whether an activity is to be considered protected activity, the
legislative history makes clear that Congress intended for courts to liberally construe the Act.
Congress stated that “[t]he Committee intends that the scope of the protected activities be
broadly interpreted by the Secretary” and that “[t]he listing of protected rights contained in
section 10[5](c) is intended to be illustrative and not exclusive.” S. Rep. No. 181, 95th Cong., 1st
Sess. 35-36 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act
of 1977, at 623-24 (1978). It further stated that section 105(c) was to be construed “expansively
to assure that miners will not be inhibited in any way in exercising any rights afforded by the
legislation.” Id. at 36.

41 FMSHRC Page 730

actions regarding the quarry road and the hose room issues can be seen as protected activity
under Section 105(c) of the Mine Act. Even if Respondent did dispute this, the fact that Vega
was involved in the hose room and haul road issues either in his capacity as a miner’s
representative or shop steward – or merely as an employee – is sufficient to bring the issues
under the umbra of protected activity covered by section 105(c)(2). The evidence supports the
conclusion that the hose room and quarry road issues are properly considered safety concerns
and that Vega played a role in both events. As such, the requirement for the protected activity
portion of the prima facie analysis is satisfied.
C.

Motivation of Adverse Action

The second prong of the Pasula-Robinette test for a prima facie case of discrimination
requires a showing that Respondent took adverse action against Vega that was motivated, at least
in part, by Vega’s protected activity. Driessen, 20 FMSHRC at 328; Robinette, 3 FMSHRC at
817–18; Pasula, 2 FMSHRC at 2799–800, rev’d on other grounds sub nom. Consolidation Coal
Co., 663 F.2d 1211 (3d. Cir. 1981). This second prong of the Pasula-Robinette test may be
alternatively framed as two sub-questions: (1) was there was an adverse employment action; and,
if so, (2) was there was a motivational nexus, at least in part, between the adverse action and the
Complainant’s protected activity? See United Mine Workers of America (UMWA), on behalf of
Mark A Franks and Ronald M. Hoy v. Emerald Coal Resources, LP, 36 FMSHRC 2088, 2096
(Aug. 2014) (Cohen and Young) (decisions where Commission first held that a miner engaged in
protected activity, then determined that the complained of action, a termination, was an adverse
employment action, before addressing the nexus).
1.

Adverse Employment Action

The Complainant must first establish that an adverse employment action occurred before
the issue of nexus is reached. Complainant has satisfied this requirement. Termination is the
ultimate adverse employment action. This is consistent with the legislative history of the Mine
Act. In keeping with the Congressional intent, the term “adverse action” has been broadly
defined as “an act of commission or omission by the operator subjecting the affected miner to
discipline or a detriment in his employment relationship.” Pendley v. Fed. Mine Safety & Health
Rev. Commn., 601 F.3d 417, 428 (6th Cir. 2010).
2.

Motivation

The Secretary and Vega must next prove that the adverse action was motivated, at least in
part, by the protected activity. Driessen, 20 FMSHRC at 328; Robinette, 3 FMSHRC at 817–18;
Pasula, 2 FMSHRC at 2799–800, rev’d on other grounds sub nom. Consolidation Coal Co., 663
F.2d 1211 (3d. Cir.1981). The Commission has noted that “direct evidence of motivation [for
termination] is rarely encountered; more typically, the only available evidence is indirect.”
Chacon, 3 FMSHRC at 2510. Such indirect, circumstantial evidence may include: (1)
coincidence in time between the protected activity and the adverse action; (2) knowledge of the
protected activity; (3) hostility or animus toward the protected activity; and, (4) disparate
treatment. Id. The more that hostility or animus is specifically directed toward the protected
activity, the more probative it is of discriminatory intent. Id. at 2511.

41 FMSHRC Page 731

In analyzing a mine operator’s asserted justification for taking adverse action under the
Pasula-Robinette framework, the inquiry is limited to whether the reasons are plausible, whether
they actually motivated the operator’s actions, and whether they would have led the operator to
act even if the miner had not engaged in protected activity. The ALJ may not impose his own
business judgment as to an operator’s actions. Chacon, 3 FMSHRC at 2516–17. Additionally,
the ALJ may not substitute his own justification for disciplining a miner over that offered by the
operator. Sec’y of Labor on behalf of McGill v. U.S. Steel Mining Co., 23 FMSHRC 981, 989
(Sept. 2001).
In Bradley v. Belva Coal Company, with regard to the issue of motivation, the
Commission found that “circumstantial evidence […] and reasonable inferences drawn therefrom
may be used to sustain a prima facie case.” 4 FMSHRC 982, 992 (June 1982) (citing Chacon, 3
FMSHRC at 2510–12). Furthermore, the Commission has held that “inferences drawn by judges
are ‘permissible provided they are inherently reasonable and there is a logical and rational
connection between the evidentiary facts and the ultimate fact inferred.”’ Colo. Lava, Inc., 24
FMSHRC 350, 354 (Apr. 2002) (citing Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 (May
1984)).
a.

Coincidence in Time

The Commission has stated that “[a]dverse action under circumstances of suspicious
timing taken against the employee who is [a] figure in protected activity casts doubt on the
legality of the employer’s motive […].” Chacon, 3 FMSHRC at 2511. Also, “[W]e ‘appl[y] no
hard and fast criteria in determining coincidence in time between protected activity and
subsequent adverse action when assessing an illegal motive. Surrounding factors and
circumstances may influence the effect to be given to such coincidence in time.”’ Hyles, 21
FMSHRC at 132 (quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 531 (Apr. 1991)).
Vega’s protected activity occurred at roughly the same time as his writing notes on the
pay envelopes in the Napa quarry shop office. (Tr.223:10–21; 225:16–17; 232:19–22; and
236:12–20) Vega’s involvement in the quarry haul road issue occurred in July 2017, and
although he first became involved in the hose room ventilation issue in early 2017, he did not
return to the topic until August 2017. (Tr.211:10–21; 216:6–217:6; 236:6–11, 236:21–24) Vega
learned that Respondent had installed a surveillance camera in August or September 2017 and
believed that management suspected he had been writing on the pay envelopes. (Tr.225:16–
226:2) Syar management, specifically Tranchina and Pearson, discovered Vega was the
individual who was writing on pay envelopes in August 2017 (Tr.89:7–13; 118:1–14), and
terminated his employment on September 11, 2017. (Tr.226:24–227:3)
I find that Vega’s claim of nexus between his protected activity and termination is
implausible. Instead of buttressing the notion that Respondent’s decision to fire Vega was
retaliatory, the close proximity in time between Vega’s discovery that management suspected he
was carrying out the prank, his involvement with the two incidents of protected activity, and his
termination suggest that the claim of nexus between the protected activity and the termination
was a calculated response intended to defend Vega from Respondent’s decision to fire him for

41 FMSHRC Page 732

writing on the envelopes. At a minimum, the temporal proximity of these events does not bolster
the claim that Vega’s termination was retaliatory or motivated by his protected activity.
b.

Management Had No Knowledge of the Protected Activity

The Commission has held that “an operator’s knowledge of the miner’s protected activity
is probably the single most important aspect of a circumstantial case.” Baier, 21 FMSHRC at
957 (citing Chacon, 3 FMSHRC at 2510). Whether the operator had knowledge of the protected
activity may be “proved by circumstantial evidence and reasonable inferences.” Id. The
commission has also held that “discrimination based upon a suspicion or belief that a miner has
engaged in protected activity, even though, in fact, he has not, is proscribed by section
105(c)(1).” Moses, 4 FMSHRC at 1480. Additionally, the Commission has held that “a
supervisor’s knowledge of the protected activity may be imputed to the operator where
knowledgeable supervisors are consulted regarding the miner’s employment.” Sec’y of Labor on
behalf of Pappas v. Calportland Co., 38 FMSHRC 137, 146 (Feb. 2016); see also Turner, 33
FMSHRC at 1067–68 (imputing knowledge and animus of miner’s direct supervisors to official
making disciplinary decision); Metric Constructors, Inc., 6 FMSHRC 226, 230 n.4 (Feb. 1984)
(stating that “[a]n operator may not escape responsibility by pleading ignorance due to the
division of company personnel functions.”).
The issue of whether Respondent’s management had knowledge of Vega’s protected
activity at the time of his termination can be resolved by evaluating the weight of the evidence
and considering the compelling force of each side’s arguments. When the evidence in the record
is considered and weighed, it is apparent that the evidence supporting the Respondent’s claim
that its management knew nothing about Vega’s involvement in protected activity when the
decision was made to terminate him is significantly better supported, more cohesive, and has
more convincing force than the evidence the Secretary and Vega brought to the record. I am not
convinced that Respondent’s management knew of Vega’s involvement with the protected
activity at the time of his termination.
Vega testified that he was not on good terms with his supervisors in general and Irvine
in particular because: (1) he had once notified management in his capacity as a union
representative that untrained laborers had operated skip loaders without being qualified; and,
(2) he had initiated a grievance after a shoulder injury. (Tr.52:8–19; 64:10–25; 213:7–215:22;
173:8–174:8; 213:17–215:22, 237:3–14; 244:1–23)19 The Secretary and Vega ask me to find
that management had to know about Vega’s involvement in the hose room and quarry haul
road issues because: (1) Tranchina and Irvine met regularly to discuss work issues (primarily
purchase issues) (Tr.83:15–21; 84:1–7; 144:19–24; 154:3–6; 172:3–10); (2) CEO Syar met
periodically with supervisors, including Tranchina and Irvine (Tr.72:25–73:15; 181:20–
182:2); and, (3) Pearson had met with Irvine from time-to-time to discuss common work

19

Vega had a shoulder injury. He was on part time work for a while. He had made plans
for three days off, but they released him to full duty in the middle of the week. He asked if he
could go ahead with his three-day plans. He went ahead, but the company treated it as AWOL. He
grieved the decision to give him two days off. (Tr.213:22-214:19)

41 FMSHRC Page 733

issues. 20 21 (Tr.83:15–21) In broader context, Irvine testified that he did not meet regularly
with CEO Syar (Tr.181:20–182:2) and he only met with Tranchina when Tranchina “really
need[ed]” to purchase an item. (Tr.172:3–10) He described his interactions with other
managers as limited to the request and question at hand, i.e., purchasing a camera or
providing his mechanics’ requisitions (Tr.176:3–178:2) — nothing else was discussed. Id.
To underscore this, Irvine testified that he was not even consulted when human resources
considered terminating one of his three skilled mechanics. (Tr.71:10–16; 112:23–113:2;
202:14–16)22
The evidence that might show management’s knowledge of the protected activity relies
solely on Vega’s testimony, lacks non-hearsay corroboration, is unreliable, and is not entitled to
convincing probative weight. REB Enterprises, Inc., 20 FMSHRC 203, 206 (1998) (hearsay
evidence is admissible but should be evaluated by the judge to determine whether it is reliable
and entitled to any probative weight). Vega testified that he dealt with Kerr and Novak regarding
the hose room smoke issue and with Kerr only regarding the haul road issue. Novak was not
called as a witness, and although hearsay is admissible if material and relevant, nothing
attributed to him can be corroborated. Cf. Hayes v. Dept. of the Navy, 727 F.2d 1535, 1538
(Fed.Cir.1984) (footnote omitted) (hearsay testimony may be treated as substantial evidence,
even without corroboration, if, to a reasonable mind, the circumstances are such as to lend it
credence).

20

In regard to the haul road issue, there is conflicting evidence regarding whether
Vega wanted his involvement kept confidential. Vega claimed that he told Kerr that he wanted
his role in the issue kept quiet (Tr.138:5-8), but, he also testified that he did not tell Kerr to
keep his name confidential. (Tr.223:3-7) Vega testified further that he assumed and believed
that his comments to Kerr would be anonymous since during a safety meeting, management
instructed miners to go to Vega or Kerr if they wanted to keep their complaint anonymous.
(Tr.237:3-17) Kerr could have substantiated parts of Vega’s story, but his testimony left
Vega’s version of the story uncorroborated.
21

The Secretary also argues that Irvine must have known about Vega’s involvement in
the hose room smoke issue in August 2017 because a complaint could have only come from one
of three mechanics making hoses (Tr.197:12-198:24) and/or that given Irvine’s open door policy
for safety and stated care for safety, it was plausible that Novak told Irvine about Vega’s MSHA
comments (Tr.192:3-5; 195:23-196:15), because Novak did talk to Irvine about the request for
the diamond blade. (Tr.197:12-198:9; 218:14-16) This plausibility does not convince me that
Respondent’s management in general, and Irvine in particular could have or did know about
Vega’s protected activity prior to his termination.
22

The Secretary argues that I should infer Pearson and Irvine had knowledge of Vega’s
protected activity and acted against Vega based on that knowledge because skilled mechanics
were scarce and the Respondent would not act against its own interest and fire a person with
Vega’s skills unless it had a retaliatory motive. (AR: Secretary’s Brief, p.16) However, it is
equally if not more plausible that Respondent acted as it did (using the Secretary’s logic) because
it felt keeping him on staff despite his forgery stunt was of even greater importance.

41 FMSHRC Page 734

On balance, the evidence does not support the argument that Respondent’s management
knew Vega was involved in the protected activity prior to his termination. Vega testified that he
raised the safety concern regarding the hose room with Kerr, but he did not offer anything to
support the idea that Kerr told Irvine about his involvement. (Tr.238:25–239:4) Irvine testified
that he heard from Novak about the blade purchase request in August 2017, and that he heard
about the smoke issue from Kerr at the same time. (Tr.197:12–198:24) But, Kerr testified that he
did not disclose Vega’s involvement in either protected activity to Irvine or any other member of
management prior to Vega’s termination and stated that when people made safety complaints to
him, he assumed they wanted to remain anonymous. (Tr.127:24–128:2; 142:8–12; 198:19–24)
Consistent with this, Vega asked Kerr to keep his concerns about the hose room and the haul
road confidential. (Tr. 129:14–18, 138:5–8; 142:8–17) Novak did not appear as a witness to
confirm or deny any of the evidence attributed to him.
Irvine testified that prior to Vega’s termination, he was not aware that Vega was involved
in discussions about replacing the hose shop blade. (Tr.198:19–24) There is no evidence in the
record showing that Hayes ever informed Irvine about Vega’s involvement with the hose room
issue. When Hayes submitted the saw blade request, it did not have Vega’s name associated with
it. (Tr.238:6–11) Pearson testified that she did not discuss Vega raising either safety concern
with Mr. Irvine. (Tr.105:10–22, 110:1–6) Napa Quarry Manager Rick Tranchina testified that
neither Grayson nor Irvine ever communicated to him that Vega had raised either the quarry haul
road or hose room safety concern. (Tr.166:20–25, 167:1–2) Irvine also testified that at the time
he obtained the writing samples, he did not know why they were requested and Pearson and
Irvine did not discuss any safety issues when Irvine identified Vega’s writing. (Tr.105:10–22;
178:14–20)
Vega, in his capacity as the Napa shop safety coordinator, first heard of the haul road
issue from another miner and passed the information along to Kerr. (Ex. R–2) Vega asked Kerr
to investigate and pass his findings on to Jamal Grayson. Id. Grayson never mentioned Vega’s
name in connection with the haul road complaint. (Tr.166:20–23) Kerr told Vega that he was
unsuccessful in his search for haul road regulations and had spoken with Irvine about the issue.
(Ex. R–2; Tr.129:2–18; 196:16–20) When Kerr reported the issue about the haul road to Irvine,
he said it came from a miner and did not name Vega (Tr.129:14–18), again consistent with
Vega’s request for anonymity. Irvine credibly denied knowledge of Vega’s involvement.
(Tr.196:16–20) Although there is conflicting evidence about whether Vega wanted to remain
anonymous during this process, Irvine’s denial that he knew about Vega’s role in this event is
consistent with the preponderant evidence that Vega wanted to remain anonymous. Irvine
testified that he had no conversation with anyone at Syar regarding the quarry haul road issue
after it was initially raised in July 2017, and until November 6 or 7, 2017, when he received
Vega’s MSHA Discrimination Report. (Tr.197:3–8)
The evidence convincingly shows that Irvine had no role or responsibility in making the
decision to terminate Vega in September 2017, nor did Irvine recommend that CEO Syar or
Pearson take such action. (Tr.199:13–25, 105:10–22) Further, Respondent’s agents who made
the decision to terminate Vega also denied having knowledge that Vega had made complaints
about safety issues that could be considered protected activity. Both CEO Syar and Pearson
denied any knowledge of the two safety concerns listed in Vega’s MSHA discrimination report

41 FMSHRC Page 735

when they made the decision to fire him. (Tr.80:6–13; 110:1–13) Pearson had only been at the
job about nine months. (Tr.123:22–124:6) She testified that she was not aware of any animosity
between Vega and management and (Tr.123:13–124:6) had no substantial contact with Vega
prior to learning about the envelope writing incident. (Tr.105:23–25) The first time she heard
Vega’s name was in the context of this controversy when she saw Vega’s MSHA complaint (Ex.
R–2) on November 6, 2017, a week after the union grievance hearing, and almost two months
after Vega’s termination. (Tr.111:8–12; 122:20–123:2) This is consistent with Vega’s testimony
that the first time he formally raised a claim of protected activity was in his MSHA
discrimination complaint. (Tr.241:12–17) CEO Syar spoke with Irvine about terminating Vega
after learning about the note writing situation and denied knowledge of either safety issue prior
to Vega’s termination. (Tr.76:2–11)
The Secretary essentially argues that Pearson, Irvine, and Tranchina (and presumably
CEO Syar) lied under oath that they had no knowledge of Vega’s protected activity until after his
September 11, 2017 termination, indeed after the November 6, 2017 grievance hearing. To
support this argument, the Secretary asks the court to find that Kerr lied when he testified that he
never revealed Vega’s involvement in the hose room and quarry haul road issues. (Tr.127:24–
128:5; 142:8–17) I am urged to credit Vega’s otherwise uncorroborated testimony over Kerr’s
because Kerr lived in a house belonging to Syar Industries (Tr.127:24–128:5; 135:2–23; 142:8–
17;), which perforce would cause him to lie to contradict Vega’s belief that management must
have known about his involvement with the hose room and quarry haul road issues. Furthermore,
Vega’s testimony about management having knowledge of his protected activity is heavily
dependent on corroboration from Novak, a person who was not called as a witness. Although I
can admit and consider hearsay evidence for its reliability and probative value, nothing in this
scenario prompts me to credit those portions of Vega’s testimony that rely for corroboration on
statements or conclusions attributed to Novak or rule on a finding that Kerr lied under oath. See
Sec’y v. REB Enterprises, Inc., 20 FMSHRC 203, 206 (1998).
The Secretary’s entire case on the issue of Respondent’s knowledge of the protected
activity is based on Vega’s testimony. As a matter of simple credibility assessment, Vega’s
claims are less convincing than Pearson’s, CEO Syar’s, and Irvine’s. I find that Respondent’s
managers and executive had no knowledge of Vega’s protected activity until after he was
terminated, two grievance hearings had taken place, and Vega had submitted his MSHA
discrimination claim. Vega’s speculation that Syar management knew he had engaged in the two
cited instances of protected activity and fired him for that protected activity (which is different
than Syar management allegedly suspecting that Vega was responsible for tampering with pay
envelopes) does not amount to substantial evidence. The testimony of CEO Syar and Pearson, as
well as that of each member of Syar management in this case, is credible and consistent. See,
e.g., Robinette, supra, 3 FMSHRC at 813. As set out above, Syar management had no knowledge
of Vega’s protected activity when it terminated Vega for his repeated misconduct.
c.

Hostility or Animus Toward the Protected Activity

Examples of operator animus or hostility related to protected activity run the gamut from
the relatively minor (less desirable work schedules) to the flagrant and criminal (severe verbal
harassment, physical assault). “The more such animus is specifically directed towards the alleged

41 FMSHRC Page 736

discriminatee’s protected activity, the more probative weight it carries.” Chacon, supra, 3
FMSHRC at 2511 (finding that the operator’s “angry remarks to Chacon about the MSHA
complaints . . . display a specific hostility towards Chacon’s protected activity”).
Vega testified that Irvine had such a negative opinion of him that anything he might say
or that was attributed to him would be rejected out-of-hand. (Tr.221:22–24) Vega’s perception of
hostility between himself and Irvine falls into two time periods, before the protected activity and
after the termination. For his part, Irvine testified that he felt no hostility towards Vega during
the eight years they worked together (Tr.230:3–10) excepting the event arising from the
grievance process after the termination. The record does not support the allegation that
management acted with hostility toward Vega during the period of the protected activity. During
Vega’s termination meeting on September 11, 2017, Vega said nothing about a link between his
protected activity and the firing. (Tr.226:24–227:25) There was no mention of protected activity
at either the initial grievance hearing (BoA) on November 1, 2017, or the follow-up arbitration
hearing. (Tr.33:10–34:25; 41:4–7; 110:14–111:3; 193:10–16; 224:7–11) The first time the
alleged protected activity was mentioned was in the MSHA discrimination complaint. (Ex. R–2;
Tr.241:12–17)
Any hostility between Vega and Irvine that Vega repeatedly mentioned seems more
likely to relate to the prior grievance over Vega’s shoulder injury, the related dispute about being
able to take time off after being released back to unrestricted work, the dispute about whether
other workers not covered by Vega’s union’s rules being allowed to do jobs that Vega thought he
should be allowed to do, and the resulting grievance process. (Tr.52:8–53:3; 64:16–25; 138:9–
139:20; 213:22–214:16; 215:9–22) However, Kerr testified that Vega had spoken about Irvine’s
animosity toward him, but that Kerr was not personally aware of any animosity between Vega
and any member of management over issues relating to Vega’s shoulder injury. (Tr.123:18–21)
Hayes testified that although Vega talked about ill will between himself and Irvine, Hayes
believed the animosity originated from a territory dispute with a rival union, not the shoulder
injury episode or a disagreement over safety concerns. (Tr.64:16–65:9) If either of these
testimonies is true, the ill will does not arise from or relate to the protected activity in this case.
Moreover, this purported animosity seems to be a construct in Vega’s mind. There is no evidence
showing that it was shared by Irvine or other members of Respondent’s management.
(Tr.213:17–21; 214:17–215:2; 221:18–24) From Irvine’s perspective, he testified that he had
worked with Vega for eight years and had never been aggressive or threatening toward him.
(Tr.230:3–10) Furthermore, Irvine had no input in the firing decision and denied knowing
anything about Vega’s alleged safety complaints.23
As discussed above, there is no evidence showing that Irvine or any other member of
Syar management displayed or expressed animus or hostility toward Vega for the protected
activity he alleges in his MSHA Discrimination Report. (Tr.239:12–20) Vega asserted that
because of their historical animosity, Irvine delayed dealing with the hose room issue.
(Tr.218:24–219:7; 221:18–24) The evidence does not support this belief. Vega had requested
23

Irvine played a part in developing the evidence that supported the termination (Tr.
91:2-17; 177:3-178:20), and appears to have become the focus of Vega’s belief that management
was aware of his protected activity.

41 FMSHRC Page 737

saw blades in his own name before. Irvine never objected or expressed any disfavor. (Tr.239:5–
20) Not only did Respondent purchase the requested new blade, (Tr.62:10–63:2) but Irvine
directed Kerr to immediately post a warning sign in the hose room (Tr.65:11–19; 132:24–133:8;
204:3–11) when he learned about the smoke issue from Kerr and Novak. (Tr.54:13–55:2;
197:12–198:18) The process of learning about, researching solutions (Tr.197:12–198:5; 200:7–
19), identifying the course of action, and remedying the hose room issue resulted in the
installation of a new ventilation system as well as a better chop saw blade within six months.
(Tr.54:13–56:4; 205:14–206:22) The timing of this series of events belies the claim that Irvine
put an “indefinite hold” on anything related to it. Further, Irvine testified that it was not unusual
for a parts request to take some time while research into options was done (Tr.200:7–19) and
stated that a $400 saw blade was insignificant compared to the hundreds of thousands of dollars
Respondent spent for parts each month. (Tr.201:6–17)
As for the quarry haul road, Tranchina, Irvine, and Pearson all testified that they did not
know Vega had raised a concern about the quarry road. In support of this, Kerr testified that he
did not disclose Vega’s identity when he passed the haul road information on to Grayson.
(Tr.123:3–17; 142:1–7; 166:20–167:2; 196:16–23) The evidence of Irvine’s purported hostile
comment questioning what business it was of Vega’s to be raising questions about the quarry
haul road comes only from Vega and is otherwise uncorroborated. (Tr.212:25–213:6) It also
appears that Vega’s belief that there was ill will with Irvine stemming from the earlier grievance
dispute prompted him to vacillate between wanting his involvement in the hose room and haul
road issues kept confidential and at the same time claiming that he did not expect anonymity.
(Tr.223:3–7; 233:24–234:10; 236:21–237:17) Vega also testified that he experienced no change
in work schedule, reduction in wages or benefits, or denial of any training or advancement
opportunity after raising the quarry haul road issue in July or August 2017, or the hose room
issue in January 2017 or August 2017. (Tr.240:11–18)
The Secretary provided evidence of hostility from Irvine toward Vega after Vega’s
termination. Irvine testified that he became upset about the hostile and confrontational tone of
the grievance hearings. (Tr.12:19–183:14; 192:6–9) He felt that he had been maligned by Vega
in the process. (Tr.184:16–186:12; 192:3–5; 194:21–195:3) Then, when Vega filed his MSHA
complaint in this matter, he accused Irvine of singling him out because of his involvement in the
quarry haul road and the hose shop issues. (Tr. 191:4–192:2) In reaction to this, Irvine asked
Pearson and the company attorney, Mike Corrigan, about getting a restraining order against
Vega. Pearson and Corrigan advised Irvine against taking any action, and he did nothing further.
(Tr.186:13–187:20)
I understand that the focus of both the grievance hearing and the follow-up arbitration
hearing was whether the terms of the labor agreement had been violated by Vega’s termination,
and the precise issue of whether protected activity occurred was not essential to the outcome.
However, the failure to even mention Vega’s actions as being potentially protected under the
Mine Act dovetails with Respondent’s claim that its management decision makers had no
knowledge of Vega’s involvement in either the hose room or the quarry road incidents prior to
his termination.

41 FMSHRC Page 738

d.

Disparate Treatment

When attempting to show disparate treatment as an indicator of the operator’s
discriminatory motive, “it is incumbent on the complainant to introduce evidence showing that
another employee guilty of the same or more serious offenses escaped the disciplinary fate
suffered by the complainant.” Driessen, 20 FMSHRC 324 (citing Chacon, supra, 3 FMSHRC at
2512). Evidence of four other recent disciplinary actions was produced.
The evidence that Syar employee Birrell received a written warning for failing to
correctly install a gas cylinder gauge cap (Tr.87:23–88:3) and the evidence that an employee
(Byron) received a written warning for disclosing confidential security vehicle information is not
sufficiently similar to Vega’s case to be persuasive of disparate treatment. (Ex. C–11, p.7; page
7; Tr.88:4–11) I also do not find evidence of Vella’s actions and resulting punishment
persuasive. Respondent disciplined Vella with one day off without pay and a written warning for
witnessing Vega write on the envelopes and not reporting it. (Tr. 87:14–18; 102:6–15; 108:20–
109:1–23) Prior to the paycheck envelope incident, Vella had been disciplined in January 2016
for damaging equipment. (Tr.87:2–6) While related to Vega’s case, Vella’s case is not
sufficiently comparable. As Vella was punished for merely witnessing Vega’s actions and failing
to report them, it is consistent that he would receive a lesser punishment.
Perhaps most relevant to the case at hand is the example given of Javier Lopez, a longtime Syar employee with a history of receiving other discipline. (Tr.114:12–21) Lopez was fired
in 2017 for dishonest acts, i.e., taking excessive work breaks and purposely taking too long to
complete assignments in order to claim the extra time on his timecards. (Exhibit 8; Tr.106:25–
107:176) As in this case, Pearson conducted an extensive investigation of Lopez prior to his
termination, including GPS tracking. Also, Pearson did not talk to Lopez during her
investigation. Her purpose was to gather information in order to catch him in the act and
terminate his employment. (Tr.107:18–108:3)
To Pearson, the false statements Vega left on the envelopes had the potential of causing
the company grief if they tried to fire someone. She speculated that the union might use the false
positive statements on the envelopes as evidence of praise. (Tr.118:23–119:16) Pearson testified
that she would have still recommended Vega’s firing had she known about his safety concerns.
(Tr.110:1–13) CEO Syar was aware that Vega was a union steward and a miners’ representative.
(Tr.73:16–20; 74:8–16) Nonetheless, he also stated that he would have authorized the firing even
had he known about the safety complaints. (Tr.80:14–22)
Given the previous examples and testimony, the record of Respondent’s prior disciplinary
actions does not support the claim that Vega was singled out or treated with disproportionate
severity. There is no circumstantial nexus between Vega’s protected activity and the discipline
he received in response to the note writing stunt. My task is not to second guess Respondent’s
business judgement. Other decision makers faced with the same circumstances may well have
chosen to impose less severe discipline. What is relevant here is whether the chosen course was
disproportionate when compared to other disciplinary actions taken by this employer.
Respondent’s disciplinary response to Vega’s writing on the pay envelopes is reasonably
proportional to prior disciplinary instances.

41 FMSHRC Page 739

e.

Vega’s Belief That His Termination Was Motivated by Ill Will
Toward His Protected Activity Is Not Credible

Vega’s characterization of the nature of the hose room and haul road issues as safety
concerns and his theory about Respondent’s reaction to those issues is not convincing.
Additionally, Vega’s testimony is subject to question because it reveals little more than his belief
that management was hostile to him. (Tr.221:18–24) Respondent’s agents did nothing prior to
the termination that supports Vega’s belief that the ill will he perceived had anything to do with
his protected activity. Indeed, a preponderance of evidence shows that Syar’s management
reacted to the two event allegations promptly and appropriately, given their understanding of the
circumstances.
Vega attributed to Kerr and Novak much of the evidence about his involvement in the
protected activity and management’s supposed knowledge of it. But, Kerr did not confirm
Vega’s claims sufficiently to render them convincing in the context suggested by Vega
(Tr.123:18–21), and because Novak was not made available as a witness, statements attributed to
him by Vega (Tr.219:8–25) carry little weight. What is left is Vega’s belief that management
harbored ill will toward him. However, even this suggestion is attenuated by the fact that it
appears to refer to events arising from a grievance involving an injury to his shoulder years
before and not the two incidents of protected activity in this case. (Tr.52:8–19; 64:19–25; 213:7–
215:22; 173:8–174:8; 213:22–215:8) Given the lapse of years between Vega’s shoulder injury and
this controversy, it is at most unconvincing and borders on irrelevant. If there were evidence
showing ill will, and the source of the ill will was something other than unrelated historical
events, the ill will mentioned by Hayes, Vega, and Kerr might carry more weight. Without such a
reshuffling of the factual deck, Vega’s belief that ill will motivated his termination is simply not
credible enough to have convincing weight.
To summarize, the Secretary has introduced no evidence showing (1) that Respondent or
its management had knowledge of Vega’s protected activity; (2) that management demonstrated
hostility or animus towards Vega as a result of his protected activity; (3) that any reasonable
inference of discriminatory motive can be drawn from the coincidence in time between Vega’s
protected activity and his terminated for misconduct; or (4) that management engaged in
disparate treatment of Vega when it terminated him for his misconduct. The Secretary has thus
failed to prove the prima facie case of discrimination by a preponderance of the evidence.
Pasula, supra, 2 FMSHRC at 2799; Turner v. National Cement Company of California, 33
FMSHRC 1059, 1065–1066 (May 2011).
D.

Respondent’s Affirmative Defense and Pretext

A thorough review of the evidence as applied to relevant legal precepts leads me to
conclude that Vega’s claims fail. Vega engaged in section 105(c) protected activities, and his
termination was an adverse action. However, there was insufficient evidence to infer or find a
causal nexus between Vega’s protected activities and his termination. I conclude that Vega and
the Secretary have failed to prove a prima facie case of section 105(c)(2) discrimination. Even if
Vega had met the prima facie burden, ultimately, I find that Respondent has provided sufficient

41 FMSHRC Page 740

evidence to rebut the prima facie case, or, alternatively, to prove the affirmative defense that
Vega’s termination was motivated by unprotected activity.
Under section 105(c), 30 U.S.C. § 815(c), the operator may rebut the miner’s prima facie
case by showing either that no protected activity occurred or that the adverse action was in no
part motivated by the protected activity. Pasula, 2 FMSHRC at 2799–800. If an operator cannot
rebut the prima facie case in these ways, it may still affirmatively defend its position by proving
that it was also motivated by the miner’s unprotected activity and would have taken the adverse
action for the unprotected activity alone. See Robinette, 3 FMSHRC at 817–18; Pasula, 2
FMSHRC at 2799–800; see also E. Assoc. Coal Corp., 813 F.2d at 642–43 (applying PasulaRobinette test). It is not enough under section 105(c) for the operator to show that the miner
deserved to be fired for engaging in the unprotected activity. The operator must show that it did,
in fact, consider the miner deserving of discipline for engaging in the unprotected activity alone
and that it would have disciplined him in any event. Id. at 2800; Robinette, 3 FMSHRC at 817–
18; See also E. Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987).
The Commission has explained that an operator’s business justification defense should
not be “examined superficially or be approved automatically once offered.” Haro v. Magma
Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982). An asserted reason may be found to be
pretextual “where the asserted justification is weak, implausible, or out of line with the
operator’s normal business practices.” Sec’y of Labor on behalf of Price v. Jim Walter Res., Inc.,
12 FMSHRC 1521, 1534 (Aug. 1990). In the context of other federal discrimination statutes, “[a]
Plaintiff may establish that an employer’s explanation is not credible by demonstrating either (1)
that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually
motivate his discharge, or (3) that they were insufficient to motivate discharge.’” Turner, 33
FMSHRC at 1073 (emphasis in original) (citations omitted). While the intermediate steps of the
Pasula-Robinette test include shifting burdens, the ultimate burden of persuasion on the question
of discrimination remains with the complainant. Robinette, 3 FMSHRC at 818 n.20.
Here, the Secretary and Vega attack the credibility of the proffered explanation by
showing circumstances which tend to prove that an illegal motivation was more likely than that
offered by the employer. In other words, the plaintiff argues that the weight of the circumstantial
evidence of discrimination proves that the employer's explanation is a pretext. I find that
Respondent’s reason for terminating Vega was plausible and not pretextual. First, Respondent’s
witnesses’ testimony that no one in management knew anything about Vega’s protected activity
until after his termination for writing the notes on the pay envelopes is coherent, plausibly
supported by the evidence showing that Vega did not want his involvement in the hose room or
haul road incidents disclosed, and is more convincing than the evidence to the contrary. Pearson,
Irvine, and CEO Syar all testified believably that their first knowledge of Vega’s claim to have
been involved in the two incidents of protected activity came in the form of his MSHA
complaint, weeks after the termination and the subsequent (and multiple) union grievance
hearings. The only evidence to the contrary is either from Vega himself, and lacking in
convincing corroboration, or more plausibly related to the earlier shoulder injury incident and
resulting grievance that Vega himself saw as the reason to keep his involvement unmentioned.

41 FMSHRC Page 741

The credibility of Vega’s claim of retaliatory discharge is also undercut by the fact that,
other than the initial mention of smoke in the hose room to a coworker months earlier, the
substance of Vega’s alleged protected activity did not manifest itself until in and after
July
2017, the same timeframe when Vega was writing on the pay envelopes. It is troublingly
plausible that Vega decided to use the two protected activity incidents as a second line of defense
against being fired in the event the union grievance process failed to bring the results he wanted.
I find that Respondent’s proffered reason for firing Vega had a basis in fact and was
sufficient to motivate the termination. I also find that the proffered reason actually motivated the
discharge. It is reasonable that an employer would terminate an employee who admitted to
impersonating a supervisor. There is substantial evidence to support the plausibility of
Respondent’s stated reason for discharging Vega. Accordingly, I find that Respondent’s reason
for terminating Vega is plausible and not pretextual.
VI. CONCLUSIONS OF LAW
The Secretary and Vega failed to establish a prima facie case of discrimination under
section 105(c)(2) of the Mine Act. Respondent’s stated reason for terminating Vega was
plausible and not pretextual. Respondent affirmatively defended the termination. Based on a
thorough review of the record, I conclude that the Secretary and Vega failed to prove, by a
preponderance of the evidence, that Respondent discriminatorily terminated him in violation of
section 105(c) of the Act.
Since there was no violation of the Act, Vega’s claim for an award of lost wages during
the time between his termination and his reinstatement through the union grievance process is
denied.
VII. ORDER
Anthony Vega’s complaint and this proceeding are DISMISSED.

/s/ L. Zane Gill
L. Zane Gill
U. S. Administrative Law Judge

41 FMSHRC Page 742

Distribution:
Anthony Vega, 1125 Wildplum Ct, Vacaville, CA 95697
Abigail G. Daquiz, Esq., Verónica Meléndez, Esq., U.S. Department of Labor, Office of the
Solicitor, 90 7th St, Ste 3–700, San Francisco, CA 94103–1516 daquiz.abigail@dol.gov
melendez.veronica@dol.gov
Bradley B. Johnson, Esq., Harrison, Temblador, Hungerford, and Johnson LLP, 2801 T St,
Sacramento, CA 95816 bjohnson@hthjlaw.com
Michael D. Corrigan, Esq., Syar Industries, Inc., 2301 Napa-Vallejo Hwy, Napa, CA 94558
mcorrigan@syar.com

41 FMSHRC Page 743

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

November 6, 2019
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on behalf
of KEVIN R. SHAFFER,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. WEVA 2018-423-D
MSHA Case No. MORG-CD-2018-01
Mine: Marion County Mine
Mine I.D. 46-01433

THE MARION COUNTY COAL
COMPANY,
Respondent
DECISION AND ORDER
Appearances:

Jennifer Bluer, Esq., U.S. Department of Labor, Philadelphia,
Pennsylvania for Complainant
Jennifer Betts, Esq., & Corey Ridenour, Esq., Ogletree, Deakins, Nash,
Smoak & Stewart, P.C., Pittsburgh, Pennsylvania for Respondent

Before:

Judge Bulluck

This case is before me upon a Discrimination Complaint brought by the Secretary of
Labor (“Secretary”) on behalf of Kevin Shaffer (“Shaffer”) against the Marion County Coal
Company (“Marion County”) pursuant to section 105(c) of the Federal Mine Safety and Health
Act of 1977 (“Act”), 30 U.S.C. § 815(c). The Secretary alleges that Marion County unlawfully
discharged Shaffer on or about October 23, 2017 after Shaffer engaged in protected activity
under the Act. Marion County denies that it discriminated against Shaffer, and contends that he
was discharged for threatening his supervisor.
Shaffer filed a 105(c)(2) complaint with MSHA on November 1, 2017. MSHA Special
Investigator Clarence W. Moore conducted an investigation, and determined that there was
“reasonable cause to believe” that Marion County unlawfully discharged Shaffer in violation of
section 105(c). On December 4, 2017, the Secretary filed an Application for Temporary
Reinstatement of behalf of Shaffer (WEVA 2018-117-D) alleging that Shaffer was terminated
because he had made safety complaints to management about mobile equipment that he had been
operating, and requested alternative work due to its unsafe condition. Marion County elected to
waive its right to a hearing, and briefs were filed on January 9, 2018. The Secretary’s
Application was granted on January 16, 2018, temporarily reinstating Shaffer to duty, effective
December 31, 2017. Secretary of Labor on behalf of Shaffer v. Marion Cty. Coal Co.,
40 FMSHRC 238 (Jan. 2018) (ALJ). Marion County appealed the Order Granting Temporary
Reinstatement on January 22, 2018, and on February 8, 2018, the Commission affirmed the

41 FMSHRC Page 744

Order. Sec’y of Labor on behalf of Shaffer v. Marion Cty. Coal Co., 40 FMSHRC 39 (Feb.
2018).
The Secretary filed a Complaint of Discrimination on behalf of Shaffer on
April 20, 2018. A hearing was held in Morgantown, West Virginia, and the parties filed Posthearing Briefs. For the reasons set forth below, I conclude that the Secretary has established a
prima facie case of discrimination, that Marion County has successfully rebutted the Secretary’s
prima facie case and that, ultimately, the Secretary has failed to prove that Shaffer was
terminated, in any part, because of his protected activity.
I. Stipulations
1. The Federal Mine Safety and Health Review Commission has jurisdiction over this case
under section 105(c) of the Mine Act.
2. For the purposes of this case, Marion County is an operator as defined in the Federal Mine
Safety and Health Act, 30 U.S.C. § 802(d).
3. For the purposes of this case, Marion County Mine is a coal or other mine as defined by the
Federal Mine Safety and Health Act, 30 U.S.C. § 802(h).
4. Marion County is a Delaware corporation with a principal place of business located in St.
Clairsville, Ohio.
5. Marion County operates the Marion County Mine, an underground coal mine located in
Marion County, West Virginia, and Monongalia County, West Virginia.
6. Marion County has products that enter commerce and its operations affect commerce.
7. Non-supervisory employees at Marion County Mine are represented by the United Mine
Workers of America.
8. For the purposes of this case, Complainant, Kevin Shaffer, is a miner as defined by the
Federal Mine Safety and Health Act, 30 U.S.C. § 802(g).
9. Complainant was employed from June 2010 to December 2013, at what is now known as
Marion County Mine by CONSOL Energy, Inc., at what was then known as the Loveridge
Mine.
10. Complainant Kevin Shaffer began working at what is known now as the Marion County
Mine as a mobile equipment operator on June 21, 2010.
11. Marion County employs Complainant as a mobile equipment operator, and did so at all times
relevant to the Complaint at issue in this matter.
12. On October 18, 2017, Foreman Bond and Complainant had a conversation about whether
Complainant had driven his truck downhill without his headlights on.

41 FMSHRC Page 745

13. On October 19, 2017, Foreman Bond emailed Marion County’s human resources department
concerning Complainant’s conduct on October 18, 2017.
14. On October 23, 2017, Marion County suspended Complainant with intent to discharge him.
15. Complainant filed a Discrimination Complaint with the Mine Safety and Health
Administration on November 1, 2017.
16. Complainant filed an Application for Temporary Reinstatement on December 4, 2017.
17. On January 16, 2018, Complainant’s Application for Temporary Reinstatement was granted,
effective December 31, 2017, and Complainant returned to work pending final adjudication
of his Complaint.
18. Respondent produced 46,004,683 tons of coal in 2016, including 4,341,072 tons at the
Marion County Mine.
19. During litigation regarding the merits of Kevin Shaffer’s 105(c) Complaint, the parties have
filed some pleadings and exchanged some written discovery using the docket number from
the Temporary Reinstatement proceeding, WEVA 2018-117-D. The parties stipulate that all
pleadings filed and documents exchanged by the parties during the litigation of the Shaffer
105(c) merits case are part of Docket No. WEVA 2018-423-D.
20. Neither Kevin Shaffer nor the UMWA received [documentation of] a verbal warning
regarding the August 14, 2017 incident.
21. If called, C.W. Moore, MSHA special investigator, would testify that the data listed on the
Exhibit B to the Amended Complaint, regarding Respondent’s history of violations and
history of 105(c) violations, is an accurate reflection of the information stored in the mine
data retrieval system and MSHA’s records.
Ex. J–1; see also Tr. 345-46.
II. Factual Background
The Marion County Coal Company operates the Marion County Mine (“mine”), an
underground bituminous coal mine in Marion and Monongalia Counties, West Virginia.1 The
mine runs three shifts, six days a week: a day shift from 8:00 a.m. to 4:00 p.m.; an afternoon shift
from 4:00 p.m. to 12:00 a.m.; and a night shift from 12:00 a.m. to 8:00 a.m. Tr. 37-38. Marion
County has four haulage trucks in its fleet, each with an approximate 40-ton capacity, and one
30-ton capacity rented from Forquer for additional support. Tr. 34, 46, 92, 502, 514; Ex. C–9 at
5. Maintenance of the haulage trucks is contracted out to Wheeling Diesel and, given the
constant wear and tear on the equipment, mechanics are regularly on-site making repairs. Tr. 3842, 222, 298, 502, 515. During each shift, the mine generally operates two trucks, hauling refuse
1

Prior to December 2013, Marion County Mine was known as Loveridge Mine, and was
owned and operated by CONSOL Energy, Incorporated. Stip. 9.

41 FMSHRC Page 746

slate from the processing plant up a quarter-mile road to the Harvey Run Impoundment
(“impoundment”). Tr. 34, 512. Because the road is too narrow and steep for haulage trucks to
easily pass each other, after mobile equipment operators (“MEO”) dump refuse at the
impoundment, they wait at the top of the hill to exchange places, and it is customary for waiting
MEOs to turn off their headlights so as not to blind their partners. Tr. 35-37, 60-63, 267.
Kevin Shaffer, also known at the mine as “Cowboy,” began employment as an MEO at
the mine in June 2010, and has held that position at all times relevant to this proceeding. Stips.
10, 11; Tr. 141. On October 18, 2017, Shaffer was assigned to haul refuse slate during the
afternoon shift. Tr. 38-40. Shaffer operated the No. 4 truck and Geoff Phillips, his partner during
that shift, operated the No. 1 truck. Tr. 513.
During Shaffer’s pre-operation examination of the No. 4 truck, he noted several issues,
including non-functional interior lights and oil leaks. Ex. C–4. While operating the truck, when
Shaffer set the parking brake, the transmission would intermittently jump out of neutral into
reverse. Ex. C–4; Tr. 49. Shaffer reported the transmission problem to plant foreman Adam Bond
over the plant-wide CB radio system. Tr. 52, 365, 514; Ex. C–9 at 5. After hearing Shaffer’s
complaints, Bond went to the mine office and talked to plant maintenance foreman Doug
Sanders about the maintenance issues and availability of other trucks. Tr. 365-73, 514-15.
Sanders, who, among others, had heard Shaffer’s complaints over the radio, called Wheeling
Diesel mechanic Paul Dixon to come to the mine that evening to service the No. 4 truck. Tr.
298-300, 514-15, 520; Ex. C–9 at 5. While it is uncertain what exactly Shaffer and Bond said to
each other over the radio or how much was actually heard, it is undisputed that during the next
hour or so, Shaffer made numerous vulgarity-laced complaints about his truck, as well as lack of
air conditioning and a non-functioning radio in Phillips’ truck. Tr. 52-53, 374, 514. Shortly
thereafter, Bond went up to the impoundment in his pick-up truck to deliver a replacement radio
to Phillips, and to talk to Shaffer about the maintenance issues with his truck. Tr. 374-77.
An animated conversation ensued between Bond and Shaffer in which Shaffer
aggressively repeated his complaints regarding the equipment and management’s failure to
timely address safety issues. Tr. 55-56, 384-88, 391. There is disagreement as to whether Bond
had told Shaffer to park the No. 4 truck and drive Forquer’s truck during the earlier radio
communications; Shaffer denies having heard this. Tr. 55-56, 171, 365-73. In any case, the faceto-face exchange was emotionally charged, and involved posturing and profanity. Tr. 178-80,
385-87, 391, 396-99. Bond repeatedly directed Shaffer to park the No. 4 truck and, throughout
the verbal confrontation, Shaffer “invoked . . . [his] safety rights,” and threatened to call in the
“Feds . . . to shut every piece of equipment down on this job.” Tr. 180, 387-88, 390, 392. To
defuse the situation, Bond suggested that he drive Shaffer down to the plant for his meal break
and, en route, the two had routine conversation and an uneventful ride. Tr. 56, 183, 390, 396-99.
After his meal break, Shaffer switched to Forquer’s truck, and returned to his hauling
duties. Tr. 59-60. Between 8:00 and 8:30 p.m., mechanic Paul Dixon arrived at the mine to repair
the No. 4 truck. Tr. 302-03. Shortly before 9:45 p.m., Bond made a second trip up to the
impoundment to check on Dixon’s progress with the repairs. Tr. 403-04. Upon Bond’s arrival,
Dixon reported to him that Shaffer had been driving down from the impoundment without his

41 FMSHRC Page 747

headlights on and had almost run the mechanics’ truck off the road, and asked Bond to “make
sure [that Shaffer] has his lights on.” Tr. 303, 406.
Bond tried to contact Shaffer twice on the CB radio to ask him to turn on his lights, but
received no response. Tr. 409-11. Bond then observed Shaffer, driving Forquer’s truck, pull off
to the side of the road at the top of the hill to wait for Phillips’ truck to pass; Bond claims that
Shaffer did not have his headlights on as he was pulling off-road. Tr. 185, 410-11, 414-15. Bond
hollered up to Shaffer in his truck about driving without his headlights and Dixon’s allegation.
Tr. 60-63. Shaffer stepped down from the cab, fervently denying driving without his headlights,
and advanced toward Bond at ground level. Tr. 64-66, 189-90, 191-95, 419-23; Ex. C–9 at 8. By
both accounts, the ensuing conversation was extremely volatile. Tr. 191-95, 420-24. Throughout
the exchange, Bond repeatedly instructed Shaffer to turn on his headlights and resume work. Tr.
420, 422, 423. Shaffer continued aggressive denial of driving without his headlights, and made
multiple threats to report Bond to human resources and call in the “Feds.” Tr. 64-66, 422-23.
Shaffer alleges that Bond became angry and put his finger in Shaffer’s face, shouting, “I’m tired
of this fucking shit on this fucking equipment.” Tr. 64-65. Bond denies making that statement,
and contends that Shaffer got in his face and threatened to “take [him] to the gate and whip [his]
ass.” Tr. 422-23, 426-28; Ex. C–9 at 8.
Around 11:30 or 11:45 p.m., Dixon radioed Shaffer to test drive the No. 4 truck. Tr. 67,
313. As he was getting into the cab, Shaffer asked Dixon why he had reported him to Bond for
driving without his headlights, and Dixon replied that Shaffer had almost run his truck off the
road when he was driving up the hill. Tr. 67, 313-14; C-9 at 6. The exchange grew heated, and
Dixon told Shaffer that if he came closer, he would “bust [Shaffer] in [his] fucking mouth.” Tr.
67-69, 199-200, 313-15; Ex. C–9 at 6. At this point, the hostility deescalated, and they proceeded
to discuss the repairs on the No. 4 truck, after which Shaffer test drove the truck and found it to
be operating properly. Tr. 67-69, 199-200, 314-15. Thereafter, Shaffer finished his shift running
the No. 4 truck. Tr. 68-69.
On October 19, Bond sent an email to human resources manager Pam Layton and plant
manager Rocky Cianfrocca recounting the previous night’s events. Tr. 431; Ex. C–9 at 7.
Thereafter, without further explanation, Layton advised Shaffer not to report to work because
management was investigating an incident that had occurred on October 18. Tr. 71-72. The next
day, on October 20, general manager Scott Neitzelt held a meeting with Cianfrocca, Layton, and
human resources representative Dave Wilkinson to discuss the incident and review Shaffer’s
disciplinary record. Tr. 473-74, 488. Neitzelt also launched an internal investigation, which
included statements from Doug Sanders, Paul Dixon and hourly employee Marty Miller. Tr. 47576; see generally Ex. C–9. In accordance with company policy, Shaffer was not interviewed. Tr.
78-79, 286, 495-96, 556.
Shaffer was called in to the Mine on October 23 for a meeting with Neitzelt, Layton,
Wilkinson, and local union president Jason Todd. Tr. 72. During the meeting, Shaffer was
informed that he was being suspended with intent to discharge because he had violated Marion
County’s employee conduct rules when he threatened Bond. Tr. 75-76. Todd requested
additional details about the investigation, which management declined, and a grievance meeting
(“24/48 meeting”) on Shaffer’s behalf. Tr. 262.

41 FMSHRC Page 748

By agreement, Shaffer’s 24/48 meeting took place on October 27, with Shaffer, Neitzelt,
Layton, human resources representatives Wilkinson and Tim Baum, Todd, and several other
union representatives. Tr. 80, 264, 270. Two prior incidents, in which Shaffer was formally
disciplined, were discussed. The first incident had occurred in 2011, when Shaffer was
suspended for six days for sleeping on the job. Tr. 282; Ex. R–32. The other had occurred in
2014, when Shaffer was suspended-without-pay and removed from the Mine Rescue Team for
vandalizing a hotel room and verbally assaulting the hotel manager with hostile language laced
with racial slurs. Tr. 197, 282, 544; Ex. R–34. A third incident, occurring in August 2017, was
also discussed, where Shaffer threatened to lay down on the job in response to Bond assigning
him to work mandatory overtime, resulting in a verbal warning from Bond, but no formal
discipline. Tr. 268, 353-56; Ex. C–9 at 9-10; see Stip. 20. The union argued that mitigating
factors should be considered, including Shaffer’s long-term employment with the company and
his lack of issues with foremen other than Bond. Tr. 283. At the conclusion of the meeting,
Neitzelt reiterated his decision to terminate Shaffer. Tr. 550. Consequently, the union elected to
take the matter to arbitration. Tr. 271.
The arbitration hearing was held on November 17, 2017, and the Arbitration Report was
issued on December 11, 2017, finding that Marion County had just cause to terminate Shaffer
because he had threatened Bond.2 Marion County Coal Co. and UMWA, Dist. 31, Local Union
9909, Arb. No. 16–31–17–037, at 18-19 (2017) (Colflesh, Arb.). Thereafter, Shaffer filed his
Discrimination Complaint with MSHA.
III. Findings of Fact and Conclusions of Law
In order to establish a prima facie case of discrimination under section 105(c) of the Act,
a complainant must prove by a preponderance of the evidence “(1) that he engaged in a protected
activity, and (2) that the adverse action [complained of] was motivated in any part by the
protected activity.”3 Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC
2786, 2799-2800 (Oct. 1980), rev’d on other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3d Cir. 1981). The Commission has noted that “direct evidence of
motivation is rarely encountered; more typically, the only available evidence is indirect.” Sec’y
2

Administrative notice is taken of the Arbitration Transcript (“Arb. Tr.”), filed in support
of the Secretary’s Application for Temporary Reinstatement, in conjunction with the hearing
record, for the purpose of establishing facts and assessing witness credibility.
3

30 U.S.C. § 815(c)(1) states, in relevant part:
No person shall discharge or in any manner discriminate . . .
against . . . any miner . . . because such miner . . . has filed or made
a complaint under or related to this chapter, including a complaint
notifying the operator or the operator’s agent . . . of an alleged
danger or safety or health violation in a coal or other mine . . . or
because such miner . . . has instituted or caused to be instituted any
proceeding under or related to this chapter . . . or because of the
exercise by such miner . . . on behalf of himself or others of any
statutory right afforded by this chapter.

41 FMSHRC Page 749

of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev.
on other grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983).
Circumstantial evidence may include: 1) coincidence in time between the protected activity and
the adverse action; 2) knowledge of the protected activity; 3) hostility or animus toward the
protected activity; and 4) disparate treatment. The more that hostility or animus is specifically
directed toward the protected activity, the more probative it is of discriminatory intent. Id. at
2510.
Once the complainant has established a prima facie case, “[t]he operator may attempt to
rebut [the] prima facie case by showing either that the complainant did not engage in protected
activity or that the adverse action was in no part motivated by protected activity.” Sec’y of Labor
on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 818 n.20 (Apr. 1981). The
operator may also affirmatively defend its actions by proving, by a preponderance of the
evidence, that it was motivated by both the miner’s protected and unprotected activities, and
would have taken the adverse action for the unprotected activity alone. Id. at 818. The
Commission has explained that an affirmative defense should not be “examined superficially or
be approved automatically once offered.” Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938
(Nov. 1982). In reviewing affirmative defenses, the judge must “determine whether they are
credible and, if so, whether they would have motivated the particular operator as claimed.”
Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982). Indicia of legitimate nondiscriminatory reasons for an employer’s adverse action include evidence of the miner’s
unsatisfactory work record, prior warnings to the miner, past discipline consistent with that
meted out to the complainant, and personnel rules or practices forbidding the conduct in
question. Id.
At this stage, the complainant has the opportunity to demonstrate that the operator’s nondiscriminatory reason for its actions is a mere pretext for discrimination. Sec’y of Labor on
behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990). The Commission
has explained that “pretext may be found, for example, where the asserted justification is weak,
implausible, or out of line with the operator’s normal business practices.” Id. However, the
Commission has also stated that “[its] judges should not substitute for the operator’s business
judgement [their] views on ‘good’ business practice.” Chacon, 3 FMSHRC at 2516. Finally, the
Commission has noted that the ultimate burden of proving discrimination always remains with
the complainant. Robinette, 3 FMSHRC at 818 n.20.
A. Summary of Testimony
1. Kevin Shaffer
Mobile equipment operator Shaffer testified extensively about the sequence of events on
October 18, 2017. He believed that Bond had trouble hearing his safety complaints over the
radio, and he did not remember Bond telling him to drive Forquer’s truck, but thought that Bond
might have mentioned that he needed to check with Sanders about truck availability. Tr. 51-52,
170-72. Shaffer stated that Sanders was the first manager to respond to his safety complaints by
broadcasting to the mine that mechanics had been called in. Tr. 54-55. According to Shaffer, he
continued operating the No. 4 truck until Bond arrived at the impoundment and asked him why
he was still running it, where upon Shaffer “invoked . . . [his] safety rights,” and detailed his

41 FMSHRC Page 750

concerns about the condition of the equipment and management’s failure to timely address safety
issues. Tr. 55-58, 136. Shaffer stated that Bond did not respond to his complaints, but offered to
drive him “off the hill” for his lunch. Tr. 56. He also stated that in the past management had
gotten upset with him for downing a vehicle without approval, but that he had not been formally
disciplined for doing so, and he noted that management would often respond to complaints with,
“Walmart is hiring.” Tr. 55, 106, 137-38, 160-61.
By Shaffer’s account, he drove Forquer’s truck after his lunch break, and Phillips went
back to driving the No. 1 Truck, which had cooled off sufficiently. Tr. 59-60. While he was
waiting at the top of the impoundment for Phillips to pass, without his lights, Bond approached
by foot, and accused him of nearly hitting Dixon while he was driving without his lights. Tr. 60,
63-64. Shaffer alleged that Bond became angry, put his finger in Shaffer’s face, and told him,
“I’m tired of this fucking shit on this fucking equipment.” Tr. 64-66. Shaffer stated that he told
Bond that he could not talk to him in that manner on mine property and that he could report it to
management or human resources, and that Bond walked away without responding. Tr. 65-66.
Shaffer contended that both were upset during this exchange, and he admitted that he was
“talking heatedly,” but denied losing his temper. Tr. 103, 195. He also denied pointing at the gate
or threatening to fight Bond, and stated that he has never threatened Bond or anyone else while at
work. Tr. 70, 196-98. Shaffer also testified that later, Dixon radioed him to test drive the No. 4
truck and, as he was climbing into the truck, he and Dixon discussed Shaffer’s headlights, things
became heated, and Dixon threatened to “fucking bust [Shaffer].” Tr. 67-69. According to
Shaffer, he perceived this comment as a threat, and he thought that he could defuse the tension
by laughing at Dixon; ultimately, he did not report the incident. Tr. 68, 200-01.
2. Adam Bond
While the finer details vary substantially, plant foreman Bond’s testimony largely
confirms Shaffer’s account of events. After hearing Shaffer’s complaints over the radio, Bond
contended, he went to the mine office immediately and discussed maintenance issues and
availability of trucks with Sanders, then radioed Shaffer to park the No. 4 truck and drive
Forquer’s truck, explaining to him that the brakes were working on Forquer’s truck. Tr. 365-73.
Bond stated that later in the shift, he drove up to the impoundment and spoke to Shaffer about his
truck. Tr. 374-75. According to Bond, he told Shaffer to park the No. 4 truck again, and Shaffer
became angry, “invok[ing] his safety rights,” and threatening to call the “Feds.” Tr. 385-88, 390,
392. Bond testified that he believed that the situation was getting out of control and, in an effort
to cool it down, suggested that he drive Shaffer down to the plant for his meal break, during
which time Shaffer calmed down. Tr. 390, 396-99.
By Bond’s account, shortly after hearing from Dixon about Shaffer driving without his
headlights, he observed Shaffer, in Forquer’s truck, pull off to the side of the road at the top of
the hill with his headlights off. Tr. 410-11, 414-15. Bond testified that when he approached the
truck and asked Shaffer about his headlights, Shaffer stepped down from the cab and denied the
allegation, before advancing toward him. Tr. 417-19. Bond contended that he instructed Shaffer
to turn on his headlights and resume work, and that Shaffer continued to deny driving without his
headlights and threatened to report Bond to human resources and the “Feds.” Tr. 420, 422-23. As
the exchange escalated, Shaffer became hostile and approached within a foot of Bond shouting,

41 FMSHRC Page 751

“Fuck this shit. I put up with this shit every fucking day.” Tr. 420-23. Bond testified that at this
point, he thought that Shaffer was going to strike him, so he put his finger in Shaffer’s face to
create some space between them. Tr. 421, 425-26. According to Bond, Shaffer then got in his
face and threatened to “take [him] to the gate and whip [his] ass,” all the while pointing toward
the mine gate. Tr. 422-23, 426.
Bond also testified about an incident with Shaffer in August 2017. Tr. 353-56. According
to Bond, after he had assigned mandatory overtime work to Shaffer and Moran, Shaffer began
shouting “fuck you,” and stated that he would “fuck [Bond’s] eyeballs out.” Tr. 353-56. Bond
stated that he understood Shaffer’s outburst to be a work refusal rather than a threat of physical
harm, and that he took Shaffer to Rocky Cianfrocca’s office in order to issue a written warning.
Tr. 356, 436. 4 Bond recounted that upon reaching Cianfrocca’s office and finding him occupied,
he reconsidered his options and decided that he would only give Shaffer a verbal warning. Tr.
355-56. He testified that Shaffer then asked, “[w]hy don’t you just fire me,” to which Bond
responded, “I don’t want to do that . . . I want to start from square one.” Tr. 355-56.
3. Paul Dixon
Wheeling Diesel mechanic Dixon testified that when Sanders called him about coming in
to repair the No. 4 truck, between 6:30 and 7:00 p.m., he was in a hospital emergency room
receiving medication for an illness that he did not disclose. Tr. 301-03. He stated that on his way
up to the impoundment, Shaffer, coming down the road without his headlights on, nearly ran the
mechanic’s truck off the road, and that he asked Bond to “make sure [Shaffer] has his lights on.”
Tr. 303-04, 331-32. He testified that later that evening, situated 20 to 30 feet from Shaffer and
Bond, he heard Shaffer shout repeatedly, “I had my fucking lights on,” and “no one puts a
fucking finger in my face;” he also heard Shaffer say the word “gate,” while pointing in the
direction of the mine gate. Tr. 305-7, 309, 312. Dixon noted that Shaffer was louder than Bond
throughout the confrontation. Tr. 307, 333. He also testified that as Shaffer was climbing into the
No. 4 truck, he paused, turned, and said to him, “[Bond] said you said I didn’t have my lights
on,” and that he told Shaffer that he had made the statement. Tr. 314. Dixon contended that
Shaffer came closer to him and aggressively told him, “I had my fucking lights on,” to which, in
an effort to meet Shaffer at his level, Dixon responded, “back off, or I’m gonna bust you in the
mouth - - your fucking mouth.” Tr. 314-15. Dixon also testified that he had received a verbal
warning, but was not suspended, for threatening to hit Shaffer. Tr. 328-29.
4. Doug Sanders
Plant maintenance foreman Sanders testified that employees are required to make preoperation reports before running any equipment, that items are prioritized for repair based on the
severity of issues identified, and that when issues are nonessential, equipment may be kept in
service until it can be addressed. Tr. 504-06. He testified that mine management would never
force an employee to continue operating unsafe equipment because “no one [at the mine] would
accept the liability,” and he added that operating unsafe equipment is a violation of Marion
County’s employee conduct rules. Tr. 506. He stated that after he had heard Shaffer’s complaints
4

See Ex. C-9 at 10 (Marty Miller’s account of the lunchroom incident, including hearing
Shaffer shouting “fuck you,” and “I’m going to fuck your eyeballs out” at Bond).

41 FMSHRC Page 752

about the No. 4 truck over the radio, he immediately called Dixon to come in, then broadcast
over the radio that mechanics were coming in to work on the trucks, and spoke to Bond about the
brakes and availability of Forquer’s truck. Tr. 514-17. In Sanders’ opinion, Shaffer had “lost his
temper” and was “worked up;” he was “screaming, [and] cussing” over the radio at Bond and
any other member of mine management who could hear him all evening, and he viewed
Shaffer’s behavior as upsetting and unprofessional. Tr. 522-25. Sanders testified that he was
impressed by Bond’s composure in dealing with Shaffer, noting that he had never seen Bond
swear at any employee. Tr. 521-22, 525.
5. Rocky Cianfrocca
Plant manager Cianfrocca testified that he only became aware of Shaffer allegedly
threatening Bond after he had received an email from Bond about the previous night’s events. Tr.
471-72. Additionally, he testified that when employees find maintenance issues during preoperation examinations, there is no discipline for reporting them and downing equipment. Tr.
459. He noted that there had been no complaints about Bond cursing at employees, that
employees liked working on Bond’s shift, and that Bond is “pretty quiet,” easy to get along with,
and well-liked. Tr. 493-94.
6. Jonathan Moran
Mobile equipment operator Moran testified that he heard Shaffer’s initial safety
complaints and Sanders’ response over the radio, but that he did not hear Bond’s response to
Shaffer. Tr. 229-31, 241. He also testified that vehicles are downed if issues are identified during
pre-operation examinations, and that there is no discipline for reporting issues. Tr. 235, 240.
Finally, Moran said that he had heard management comment that “Walmart is hiring” and,
although he could not recall a specific instance when that had been said to him, he characterized
the statement as a general response to complaints at the mine. Tr. 245 He also noted that he had
a good relationship with Bond, and that Bond had never threatened him. Tr. 248.
7. Scott Neitzelt
General manager Neitzelt explained how the mine’s disciplinary process works, and
stated that while the mine usually employs progressive discipline, severe conduct can result in
immediate termination. Tr. 537, 545-51, 561-63. He testified that his decision to discharge
Shaffer was based on the October threat and in no part Shaffer’s safety complaints, and that he
would have discharged any employee who had threatened another employee, irrespective of
whether the employees involved were hourly or management. Tr. 552, 558. He also testified that
Shaffer’s prior disciplinary infractions “showed somewhat of a pattern,” establishing Shaffer as
“a hothead,” and contributed to his decision to terminate Shaffer. Tr. 543-44, 552-54. Neitzelt
explained that he elected to notify Dixon’s supervisor that he had threatened Shaffer, rather than
ban him from the mine, because Dixon worked for a contractor. Tr. 540-41, 565. Finally,
Neitzelt noted that Bond had told him that since the incident, he has been afraid of Shaffer. Tr.
554.

41 FMSHRC Page 753

8. Jason Todd
Todd, prep plant electrician and president of the local UMWA chapter, accompanied
Shaffer to the disciplinary proceedings associated with Shaffer allegedly threatening Bond. Tr.
256, 260. He identified Adam Fry as Shaffer’s union representative at the 24/48 meeting. Tr.
263. Todd testified that Shaffer admitted to him that Bond had responded to his initial safety
complaints by instructing him to drive a different truck. Tr. 290-91. In response to a question
about whether Bond had ever been confrontational with him, he recounted an incident where he
was speaking with union miners in the lunchroom and Bond approached him, commenting on
Todd’s work schedule and union activities. According to Todd, both of them became angry, and
there were a “few back and forth words” before Bond left the lunchroom. Tr. 274-77.
B. Shaffer’s Prima Facie Case
It is undisputed that Shaffer’s complaints regarding the No. 4 and No. 1 trucks on
October 18, 2017, constitute protected activity under the Act, and it is clear that Shaffer’s
termination is an adverse action. Sec’y Br. at 17-19. As is often the case, the circumstantial
evidence involved in Shaffer’s discharge must be examined in order to determine whether
Marion County was motivated, in any part, by Shaffer’s protected activity.
The Commission has found that a discharge occurring approximately two weeks after
protected activity is sufficiently coincidental in time to support a finding of discriminatory
motive. Sec’y of Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 959 (Sept.
1999). In this case, the temporal nexus is even stronger, since Marion County initiated Shaffer’s
discharge approximately five days after Shaffer’s safety complaints.
Marion County management had knowledge of Shaffer’s protected activity. Clearly,
Bond and Sanders had heard the complaints about the trucks over the plant-wide radio. Sec’y Br.
at 19; Tr. 173, 365-73, 514-17. Layton and Cianfrocca were made aware of Shaffer’s safety
complaints the next day by Bond’s email describing the prior evening’s kerfuffle and, if not
sooner, Neitzelt was put on notice of Shaffer’s safety complaints by the information gleaned
from the ensuing internal investigation. Accordingly, I find that the Secretary has established a
prima facie case of discrimination based on the temporal nexus between Shaffer’s safety
complaints and termination, in conjunction with management’s knowledge of Shaffer’s protected
activity.
C. Marion County’s Rebuttal
Marion County contends that it terminated Shaffer because he threatened his supervisor,
Bond, in violation of its employee conduct rules, and in no part because of his protected activity.
Resp’t Br. at 17-24. In relevant part, Marion County’s employee conduct rules state as follows:
In order to minimize the occasions for discipline or discharge, each
employee should avoid conduct which violates reasonable
standards of an employer-employee relationship including . . .
4. Insubordination (refusal or failure to perform work assigned or
to comply with supervisory direction) or use of profane, obscene,

41 FMSHRC Page 754

abusive, or threatening language or conduct toward subordinates,
fellow employees, or officials of the company.
Ex. C–8 (emphasis added). Marion County alleges that Shaffer threatened to “take [Bond] to the
gate and whip [his] ass.” Resp’t Br. at 11. Marion County asserts that it does not tolerate threats,
and that Shaffer’s unprotected conduct was its sole motivation for his termination. Resp’t Br. at
17, 24; Tr. 552-53.
The alleged threat occurred during Bond’s second trip up to the impoundment. It is clear
from the record that Shaffer’s agitation had escalated as the shift progressed, and Dixon’s
accusation about his headlights took Shaffer’s disgruntlement up a notch when Bond approached
him about the matter. By both accounts, their exchange quickly became confrontational. Shaffer
got in Bond’s personal space, Bond pointed his finger at Shaffer, and it is at this point that Bond
alleges that Shaffer threatened to fight him at the gate. Bond’s rendition is largely corroborated
by Dixon, who, standing 30 feet away at most, observed Shaffer pointing in the direction of the
gate as he was referencing it verbally.
The next day, based on Bond’s email to Layton and Cianfrocca, management began an
internal investigation, and Shaffer was advised not to report to work. As a part of the
investigation, Neitzelt reviewed employee statements and Shaffer’s personnel file, and found
Shaffer’s behavior toward Bond in August 2017 and the incident at the hotel in 2014 particularly
troubling. Shaffer was called to the mine on October 23 for a meeting, and was informed that he
was being suspended with intent to discharge because of threatening Bond.
Shaffer’s 24/48 meeting was held on October 27, and the union’s arguments, that Shaffer
was a long-term employee of the company and had no issues with foremen other than Bond, did
not persuade Neitzelt to reverse his decision to terminate Shaffer. Tr. 549-52. In fact, Neitzelt
testified credibly that even with a clean disciplinary record, he would have discharged any
employee, hourly or management, for threatening another employee. Tr. 558, 563. I find that
Neitzelt offered credible testimony, that his account of his motives was supported by the record
and, therefore, that Marion County has established that Shaffer was discharged for legitimate,
non-discriminatory reasons, entirely unrelated to his safety complaints.
D. Pretext
The Secretary argues that Marion County’s articulated justification for terminating
Shaffer is merely a pretext for unlawful discrimination. In support of this argument, the Secretary
maintains that Shaffer never threatened Bond, that management displayed animus toward
Shaffer’s protected activity, and that Shaffer was disparately treated with respect to discipline.
Sec’y Br. at 10-11, 20-25. For the following reasons, I conclude that the Secretary’s arguments
are not supported by the record.
1. The Threat
The Secretary contends that it was Bond who became agitated that evening, that he put
his finger in Shaffer’s face and said that he was tired of this “fucking shit” on the “fucking
equipment,” and that Bond fabricated the threat by Shaffer in order to insulate himself from

41 FMSHRC Page 755

being held accountable for his hostility toward Shaffer. Sec’y Br. at 10-11, 21. Additionally, the
Secretary maintains that Dixon’s testimony lacks credibility. Sec’y Br. at 10-11, 28 n.9.
According to the Secretary, Bond’s failures to call the police, report the incident to
human resources immediately, and send Shaffer home lend credence to his contention that Bond
fabricated the threat. Sec’y Br. at 11, 21. I find this reasoning unpersuasive. Primarily, the record
establishes Bond as someone who believes that actions have consequences, and gives careful
consideration to exercises of his supervisory authority. See e.g., Tr. 355-56, 365, 430-33, 45354.5 Additionally, Bond is well-liked by the employees under his supervision, including Shaffer.6
See, e.g., Tr. 248, 493-94, 525. Consequently, I find the Secretary’s claim to be inconsistent with
Bond’s character and reputation, as borne out by the record.
The Secretary’s assertion that Dixon was an unreliable witness, insofar as his testimony
corroborates Bond’s account of events, is based on his contention that Dixon had reason to be
“annoyed” with Shaffer due to the inconvenience of being called in from the emergency room,
and possibly because Dixon took the complaints about the equipment personally. Sec’y Br. at 28
n.9. The Secretary presented no evidence to support this contention. Furthermore, Dixon’s
assertion that he was working within earshot of Bond’s and Shaffer’s confrontation was not
refuted. According to Dixon, he could not hear Bond well during the conversation, but he could
hear Shaffer yelling at Bond. Dixon recounted Shaffer repeatedly shouting in Bond’s face that he
had his “fucking lights on,” and “fuck you,” and that he heard Shaffer tell Bond that nobody puts
his “fucking finger” in his face, and say “gate,” while pointing toward the mine gate. Ex. C–9
at 6; Tr. 305, 307-09, 312.
While it is uncontroverted that Dixon came to the mine from the emergency room to
service the No. 4 truck, there is no evidence that this generated hostility on his part. In fact,
Dixon and Shaffer never had any issues before the incident in question, and Dixon specifically
testified that he was not bothered by having to go to the mine that evening. Tr. 301-02, 313, 32021; Ex. C–9 at 2. Moreover, if Dixon had harbored any hostility toward Shaffer, he most likely
would have misrepresented what he had heard that evening to construct a more damaging story.
As it stands, one would have to consider why he merely stated that he heard Shaffer say “gate,”
when he could have testified that he heard Shaffer make the entire alleged threat. Additionally,
Dixon provided balanced testimony that could be construed against Bond, i.e., Shaffer telling
Bond that nobody puts their “fucking finger” in his face, which does not serve the retaliatory
motive that the Secretary attempts to construct. Therefore, based on the record, and after
5

While the Secretary points to the lunchroom incident between Bond and Todd as
evidence of Bond’s antagonistic temperament, I do not find this argument availing for two
reasons. See Sec’y Br. at 21. First, Todd’s recounting of the incident does not provide enough
context to evaluate the reasonableness of Bond’s alleged actions. Second, if I were to take
Todd’s testimony at face value, I do not believe that an isolated display of anger outweighs what
the record clearly establishes - - that Bond enjoys a good relationship with his subordinates, and
is respected as a manager.
6

In the arbitration hearing, Shaffer testified that he had never had a problem with Bond,
and went so far as to say, “I’ve had two good bosses in my life, and [Bond’s] the second best and
the first was my dad.” Arb. Tr. 262.

41 FMSHRC Page 756

observing him testify, I find Dixon wholly credible, and conclude that he harbored no animosity
toward Shaffer.
Shaffer’s abusive and disrespectful conduct toward Bond was wholly inappropriate, and
Bond, although obviously frustrated, was more patient with him than could reasonably be
expected under the circumstances. Moreover, I find that Shaffer’s overall testimony was
extremely self-serving. While he admitted that his conversations with Bond and Dixon were
heated, he left out negative information corroborated by multiple witnesses, he denied past
inappropriate behavior that had been observed by others, he could not recall many events that
were readily established by other witnesses, and his testimony was riddled with inconsistencies.
See, e.g., Tr. 90-91, 170-71, 194-97, 203, 290-91. Shaffer painted himself as an easy-going,
cooperative employee, but his demeanor was unconvincing, and the record tells a much different
story. In fact, the record is replete with examples of Shaffer’s hostile and disruptive attitude. See,
e.g., Tr. 282, 353-54, 461, 544; Ex. R–34; Ex. C–9 at 5-6, 10.
While I find that Bond also became agitated during the verbal confrontations with
Shaffer, given the circumstances, I do not find Bond’s conduct antithetical to his reputation as a
fair, even-tempered supervisor. Indeed, patience is not without limits. Moreover, I find that
Bond’s frustration was reasonable, when viewed in reaction to Shaffer’s aggressive display of
anger. To characterize Bond as intimidating and hostile, as the Secretary urges, ignores Bond’s
need, as Shaffer’s supervisor, to maintain control and respect. Therefore, based on my credibility
determinations and the evidence in its entirety, I find that Shaffer did, in fact, threaten Bond.
2. Marion County’s Animus
The Secretary contends that both Bond and Sanders displayed animus toward Shaffer’s
protected activity, and that their conduct was consistent with management’s pattern of hostility
toward safety complaints. Sec’y Br. at 20-21.
The Secretary argues that Bond displayed hostility toward Shaffer’s protected activity
when he confronted Shaffer about his headlights. Sec’y Br. at 20. After making the accusation,
Shaffer alleges that Bond became angry, put his finger in his face, and told him that he was sick
of the “fucking shit” on the equipment. Shaffer interpreted this comment to be in reference to the
safety complaints about his truck that he had made earlier that day. Tr. 101-102. While I have
found that Shaffer’s testimony, as a whole, casts a deep shadow upon his credibility, I find it
plausible that Bond said something of this nature to Shaffer during their argument. However, as
has been briefly touched upon earlier, it is critical to evaluate any such statement in the context
of the events that precipitated it. Bond’s alleged comment was made in the midst of an animated
exchange in which Bond was taking Shaffer to task for engaging in extremely hazardous
conduct. As a reminder, leading up to this confrontation, Bond had actually observed Shaffer
park the truck without using headlights. Additionally, I note that this was the second instance of
Shaffer engaging in unsafe conduct that shift. On his first trip up to the impoundment, Bond
discovered that Shaffer had been driving the No. 4 truck for over two hours, despite having been
instructed by Bond to drive Forquer’s truck instead. Given Bond’s legitimate concerns about
Shaffer’s attitude and conduct in the mine that evening, and putting Bond’s comment in the
context of the accusation that actually sparked the confrontation, I conclude that Bond’s alleged

41 FMSHRC Page 757

comment would have been in reference to Shaffer’s repeated safety infraction, i.e., not using his
headlights, rather than his safety complaints.
Moreover, the alleged comment must be viewed in light of Bond’s reaction to Shaffer’s
safety complaints throughout the evening. By the time that the alleged statement was made by
Bond, Shaffer’s complaints were already being addressed. Shaffer was driving Forquer’s truck
and Dixon was repairing the No. 4 truck; Phillips had been given a replacement radio and the
No. 1 truck had cooled down sufficiently. It is clear that Bond took immediate action to address
the safety issues that Shaffer had brought to his attention. Importantly, Bond did not raise any
objections to Shaffer’s safety complaints the first time they spoke, but instead questioned why
Shaffer was still driving the malfunctioning truck. This immediate response to Shaffer’s safety
complaints supports the conclusion that Bond’s statement was, in fact, about the headlights issue.
Therefore, I find that the record does not support the Secretary’s claim that Bond displayed any
animus toward Shaffer’s protected activity.
The Secretary also identifies statements made by Sanders during the internal
investigation as evidence of Sanders’ animus toward Shaffer’s protected activity. Sec’y Br. at 20;
Ex. C–9 at 5. Sanders stated that he was “afraid [Shaffer] would have both trucks down by the
end of the shift,” which “would only leave [the mine] with a rented 30-ton truck to haul refuse.”
Ex. C–9 at 5. Sanders also testified that production would be affected if either of the 40-ton
refuse trucks were not running. Tr. 530. The Secretary contends that Sanders’ statements suggest
that management was concerned about production at the expense of safety. Sec’y Br. at 20.
To fully understand Sanders’ comments, they must be viewed in light of Sanders’
response to Shaffer’s complaints about the No. 4 truck. Sanders took immediate action once he
was made aware of Shaffer’s complaints: he spoke to Bond about the safety issues and
availability of trucks, called in the Wheeling Diesel mechanics, and contacted Forquer to work
out the issue with the parking brake on the rented truck. Although Sanders stated that he was
worried about Shaffer downing trucks, he also testified credibly that mine management would
never encourage an employee to continue operating an unsafe piece of equipment. Tr. 506; Ex.
C–9 at 5. While not discounting that Sanders had a concern about production, the record does not
show that he prioritized it over safety. It does show him to be disdainful of Shaffer’s hostility
toward Bond throughout the evening. Sanders regarded Shaffer’s language and behavior as
highly objectionable and disrespectful, and he was impressed that Bond was able to maintain his
composure. I fully credit Sanders’ testimony about the evening, as consistent with Shaffer’s
history of uncooperative conduct throughout his tenure at Marion County. The record illuminates
Shaffer’s disruptive behavior, his negative attitude toward work, and his refusal to follow
instructions despite the latitude and assistance afforded him by Bond and Sanders. See, e.g., Tr.
282, 353-54, 461, 544; Ex. R–32; Ex. R–34; Ex. C–9 at 5, 6, 10. Consideration of Shaffer’s
pattern of bad behavior provides support for Sanders’ negative view of him, and any hostility on
Sanders’ part is reasonably attributable to Shaffer’s non-protected conduct. This highlights an
important distinction. While the Act protects miners who have legitimately engaged in protected
activity, that protection is not without parameters. Therefore, I find that any animus expressed by
Sanders was directed toward Shaffer’s prolonged demonstration of hostility throughout the
evening - - behavior that is wholly unprotected.

41 FMSHRC Page 758

Finally, the Secretary notes a few instances in which management, including Bond,
responded to safety complaints by telling employees that “Walmart is hiring,” and asserts that
this created a general hostility toward protected activity at the mine. Sec’y Br. at 20-21. This
contention also lacks support in the record. Shaffer claimed that he was told “Walmart is hiring”
after he had made a safety complaint regarding parts on a truck, and also during the August 2017
incident. Tr. 55, 106, 138. Jonathon Moran characterized “Walmart is hiring” as a general
response to complaints at the mine. While I credit that this retort has been made by management
and, specifically, by Bond, it does not follow, without more, that the statement rises to the level
of animus. Shaffer’s allegation is self-serving and uncorroborated; the other instances identified
by the Secretary are not tied to any specific safety complaints. I note that the Secretary has
offered no evidence of management forcing miners who have raised legitimate safety complaints
to continue operating unsafe equipment. See Tr. 235, 238-40, 396, 459, 506. Moreover, it is
important to consider that heavy mobile equipment is running 24 hours, six days a week at this
mine, and that equipment breaks down often and needs maintenance regularly. Complaints and
concerns about equipment are raised multiple times on a daily basis, and the record is devoid of
evidence that management does not adequately address safety issues.
Therefore, the Secretary has failed to establish any animus on the part of management
toward the safety complaints Shaffer made on October 18.
3. Disparate Treatment
Finally, the Secretary asserts that Shaffer was subject to disparate treatment respecting
his termination. Sec’y Br. at 22-24. After threatening Bond, Shaffer was told not to report to
work and stay off mine property. Five days later, he was suspended with intent to discharge. The
Secretary points out that Dixon engaged in similar threatening conduct during the same shift, but
was neither banned from mine property nor suspended from work. Sec’y Br. at 23.
Dixon readily admitted that he threatened to punch Shaffer in the face. However, Dixon
contended that, having just observed Shaffer screaming in Bond’s face, his own conduct was in
response to Shaffer’s temper and aggressiveness, in an effort to back Shaffer down. While
Dixon’s statement could be viewed as defensive, Marion County viewed it as a threat, and I find
likewise. Dixon is not a valid comparison employee as the Secretary asserts, however, because
Dixon and Shaffer are not similarly situated. Shaffer is an employee of Marion County, and
Dixon works at the mine as a contractor employed by Wheeling Diesel. As such, the conditions
of Dixon’s employment are not under the dominion of Marion County. Neitzelt did not take any
disciplinary action against Dixon, but reported his conduct to his supervisor at Wheeling Diesel,
which lends credence to Marion County’s stated zero-tolerance policy regarding threats.
Consequently, I find that the Secretary has failed to establish that any similarly situated
employee has been treated more favorably than Shaffer, under similar circumstances.
Having reviewed the evidence in its entirety, including the demeanor and credibility of
the witnesses, the record shows that Shaffer threatened Bond, that management displayed no
animus toward Shaffer’s protected activity, and that Shaffer was not subject to disparate
treatment. Therefore, I conclude that the Secretary has failed to show, by a preponderance of the
evidence, that Marion County’s stated justification for Shaffer’s termination was a pretext for

41 FMSHRC Page 759

unlawful discrimination, or that Marion County’s termination of Shaffer was, in any way,
motivated by his protected activity.
IV. ORDER
ACCORDINGLY, it is ORDERED that the Complaint of Discrimination filed by the
Secretary of Labor on behalf of Kevin Shaffer is, hereby, DISMISSED; and the Order Granting
Temporary Reinstatement is, hereby, DISSOLVED, effective November 6, 2019.

/s/ Jacqueline R. Bulluck
Jacqueline R. Bulluck
Administrative Law Judge

Distribution:
Jennifer L. Bluer, Esq., Office of the Regional Solicitor, U.S. Department of Labor,
170 S. Independence Mall West, Suite 630 East, Philadelphia, PA 19106-3306
Thomas A. Smock, Esq., Jennifer Betts, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
One PPG Place, Suite 1900, Pittsburgh, PA 15222
Laura P. Karr, United Mine Workers of America, 18354 Quantico Gateway Drive, Suite 200
Triangle, VA 22172
/adh

41 FMSHRC Page 760

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

November 13, 2019
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 2019-0268
A.C. No. 35-03805-485254

v.

Docket No. WEST 2019-0269
A.C. No. 35-03805-485254

HOOVER EXCAVATING & TRUCKING,
INC., and its successors,
Respondent,

Mine: Plant #2

DECISION AND ORDER
Appearances: Rebecca W. Mullins, U.S. Department of Labor, Office of the Solicitor,
Arlington, Virginia, for Petitioner;
Reginald S. Hoover, pro se, Coquille, Oregon, for Respondent.
Before:

Judge Miller

These cases are before me upon petition for assessment of civil penalties 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. § 815(d) (“the Act”). These cases involve two citations issued pursuant to
Section 104(a) and one order issued pursuant to Section 104(d)(1) of the Act, with originally
proposed penalties totaling $6,421.00. The parties presented testimony and evidence regarding
the violations at a hearing held in Eugene, Oregon on September 18, 2019. Based upon the
parties’ stipulations, my review of the entire record, my observation of the demeanors of the
witnesses, and consideration of the parties’ legal arguments, I find the violations have been
established and uphold the penalties as assessed.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Hoover Excavating & Trucking, Inc. (“Hoover Excavating”) operates Plant #2, a surface
crushed and broken stone mine located in Myrtle Point, Oregon. (Tr. 12). Hoover Excavating is
an “operator” as defined in Section 3(d) of the Mine Act, 30 U.S.C. § 803(d), and thus the mine
is subject to the provisions of the Mine Act and the jurisdiction of the Commission.

41 FMSHRC Page 761

The three violations at issue in these cases arise from two separate inspections of Plant
#2. Both inspections were conducted by Inspector Jed McGinnis, who has worked for MSHA for
three and a half years as an inspector and also has 13 years of experience working in a copper
and gold mine. (Tr. 83–84). I found Inspector McGinnis to be credible and thorough in his
description of the events. Mine owner Reginald S. Hoover represented Hoover Excavating at the
hearing, and I found him to be less credible.
Because the facts associated with each inspection differ significantly, I analyze the
violations below in accordance with their corresponding inspection date, rather than by docket
number.
A. January 29, 2019 Inspection
a. Factual Background
Prior to the January 29, 2019 inspection at issue here, Inspector McGinnis conducted two
pertinent inspections of Plant #2 in late 2018. The first occurred on November 27, 2018. On that
date, McGinnis traveled to Plant #2 for a spot inspection and issued Citation No. 9376035 for a
violation of 30 C.F.R. § 56.3131. That regulation mandates that “loose or unconsolidated
material shall be sloped to the angle of repose or stripped back for at least 10 feet from the top of
the pit or quarry wall” in places where people work or travel in performing assigned tasks. 30
C.F.R. § 56.3131. The citation described the condition at the mine as follows:
The loose and unconsolidated material along the perimeter of the high wall was
not sloped to the angle of repose or stripped back ten feet, other conditions existed
that created a fall of material hazard to miners. Large rocks had fallen on the drill
area where work had recently been completed. Unconsolidated material was
witnessed falling from the top of the high wall during the inspection and a large
boulder was witnessed falling from the second bench during the inspection. Other
areas on the high wall were undercut creating a fall of material hazard to miners.
The pit was accessed daily to mine rock for the crusher. A fatal injury could result
if a miner was struck by the falling material. The owner had cut a tree from the
top of the high wall where the material was not stripped back or sloped to the
angle of repose.
McGinnis determined that a fatal injury was reasonably likely to occur, that one person
would be affected, and that the operator’s negligence was high. Though Hoover Excavating
initially contested this citation, it was assessed as issued pursuant to settlement in Docket No.
WEST 2019-0204. It is therefore admitted and unreviewable here.
On December 10, 2018, Inspector McGinnis returned to Plant #2 to conduct a follow-up
inspection of the mine. While there, he issued Section 104(b) Withdrawal Order No. 9376048.
Section 104(b) provides as follows:
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

41 FMSHRC Page 762

issued pursuant to subsection (a) 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), 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). The order described the continuing violation:
The loose and unconsolidated material had not been removed from the face of the
high wall and a berm had not been established at the base of the high wall on the
“bench” that had been cleared for drilling and blasting. Work had been started to
strip the top of the pit back ten feet, weather conditions prohibited any further
work until conditions improved.
McGinnis explained at hearing that he issued the withdrawal order because, although
some work had begun on the high wall, “no work had been started (to abate the violation) and no
scaling had been done” on the bench section. (Tr. 85). The order required that a specific section
of the high wall be removed from operation until the underlying violation was abated by the
operator. Sec’y Ex. 6. McGinnis served a copy of the withdrawal order on Hoover Excavating
foreman Casey Sabin, explained the scope of the order to him, and determined that he
understood the scope and implications of the order. (Tr. 86). Hoover Excavating did not contest
the withdrawal order and it is thus admitted and unreviewable.
b. Citation No. 9376074 (Docket No. WEST 2019-0268)
On January 29, 2019, McGinnis again traveled to Plant #2 , and observed that Hoover
Excavating had continued to work on the high wall in the face of the 104(b) withdrawal order.
As a result, he issued Citation No. 9376074 for a violation of Section 104(b) of the Act. The
citation, as modified, described the condition as follows:
The “bench” section of the high wall was not removed from operation as required
by Order of Withdrawal No. 9376048 dated 12/10/2018. The mine operator had
continued to work on the “bench” preparing the area to be drilled and blasted. The
area where work had been performed was below loose and unconsolidated
material. The operator had not taken any action to mitigate the hazards on the
high wall before working on the “bench”. The Order has not been modified,
vacated, or terminated. This condition has not been designated as “significant and
substantial” because the conduct violated a provision of the Mine Act rather than
a mandatory safety or health standard.
Because this is a violation of the Act, rather than of mandatory health and safety
standards, gravity and significant and substantial designations do not apply. McGinnis
determined that the negligence level was high.

41 FMSHRC Page 763

McGinnis explained at hearing that he observed a shock tube which had not been present
when the 104(b) order was issued on December 10. A shock tube is used only for the purpose of
blasting. McGinnis stated that he discussed the hazardous condition with Hoover, who confirmed
that he had in fact drilled and blasted the bench. (Tr. 87). Photos taken during this inspection
and admitted into evidence at the hearing show the still-present hazardous unconsolidated
material as well as the white detonating cord and shock tube that had been placed in the area at
some point after the 104(b) order was issued. Sec’y Ex. 5.
Hoover, on behalf of Hoover Excavating, explained at hearing that his understanding was
that he could drill on the bench as long as he was 15 feet away from the high wall. (Tr. 109). He
admitted that he was on the area of the bench that was subject to the withdrawal order in order to
drill, and that he did drill, because he “didn’t feel that there was adequate enough material up
there” to build a berm. (Tr. 109). He did this “to create some material to build a berm . . . not
realizing [he] was in direct violation of the order.” (Tr. 109). According to McGinnis’s credible
testimony, there was plenty of material available to build a berm without the need to drill and
blast in the unsafe area. (Tr. 95–96).
It is evident from the testimony of both parties and from the photos taken on January 29,
2019, that the company continued to blast and work in the area in the face of the withdrawal
order. Sec’y Ex. 5. Therefore, I find the violation has been established.
The Secretary alleges that this violation was the result of high negligence. The
Commission has recognized that “[e]ach mandatory standard . . . carries with it an accompanying
duty of care to avoid violations of the standard, and an operator’s failure to meet the appropriate
duty can lead to a finding of negligence if a violation of the standard occurs.” A.H. Smith Stone
Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining whether an operator met its duty of care, the
judge must consider “what actions would have been taken under the same circumstances by a
reasonably prudent person familiar with the mining industry, the relevant facts, and the
protective purpose of the regulation.” Newtown Energy Inc., 38 FMSHRC 2033, 2047 (Aug.
2016); Brody Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015); U.S. Steel Corp., 6 FMSHRC
1908, 1910 (Aug. 1984).
In this case, Hoover Excavating should have known of the unsafe condition even prior to
the first citation. Nevertheless, the company was put on definitive notice of the condition on
November 27, 2018, when McGinnis issued the first citation for a violation of 30 C.F.R. §
56.3131. During the follow-up inspection on December 10, 2018, when it became obvious that
the mine had done nothing to abate the violation, the company was reminded of the hazardous
condition and ordered to remove the area from operation until the predicate violation was abated.
Though Hoover himself was not served with the order of withdrawal, he nevertheless should
have known that blasting in the withdrawn (and previously cited) area was prohibited.
Mitigating circumstances sufficient to reduce the negligence level of this citation are not
present in this case. In Jeppesen Gravel, the Commission Judge modified the negligence level of
a number of citations issued for working in the face of a failure to abate order where the
Secretary acknowledged that the mine had put forth effort toward compliance. 37 FMSHRC
2319, 2326 (Oct. 2015) (ALJ). In that case, the operator had fully abated four and partially
abated another three violations before MSHA issued citations for working in the face of failure

41 FMSHRC Page 764

to abate orders. Id. Regarding those citations, the judge found that a high negligence designation
was inappropriate. Id. However, she determined that, for several other citations at issue in the
case where the operator had not partially or fully abated violations, high negligence was
appropriate. Id. at 2329.
In this case, I remain unconvinced that Hoover was blasting in the withdrawn area in
order to abate the dangerous condition. As McGinnis stated at trial, “that’s not customarily how
you do mining. You actually build the berm before you drill and blast. You don’t drill and blast
to build a berm.” (Tr. 96–97). Hoover has ample experience with mining and with MSHA
compliance, and I find his testimony concerning this violation untenable. I accordingly find that
the violation had not been either partially or fully abated at the time McGinnis issued this
citation, and that high negligence is appropriate.
B. February 5, 2019 Inspection
On February 5, 2019, Inspector McGinnis, along with his supervisor, Randy Cardwell,
returned to Plant #2 to conduct another inspection of the mine. Upon arriving at the mine,
McGinnis noticed that blasting had occurred recently and developed concerns regarding Hoover
Excavating’s transportation of explosives. He asked Hoover a few questions, which Hoover
refused to answer. McGinnis then asked if he could inspect the back of Hoover’s truck, and
Hoover said that he could not. (Tr. 98).
McGinnis then explained to Hoover that if he did not allow the inspection he would be
issued a citation. Hoover then got in the truck and drove it across the street. In McGinnis’
opinion, Hoover did this in order to prevent inspection of the truck. (Tr. 99). Photos entered as
exhibits at hearing show Hoover getting in the truck to drive it off of the mine site and the truck
parked across the street from the mine. Sec’y Ex. 7. Cardwell then received instruction from his
district manager to inform Hoover that local authorities would be contacted about Hoover’s
possible transportation of explosives in the truck. After being so informed, Hoover allowed
inspection of the truck. (Tr. 102).
Two violations issued during this inspection are under consideration here. One is a
Section 104(a) citation issued for a violation of Section 103(a) of the Act, and the other is a
Section 104(d)(1) order issued for a violation of 30 C.F.R. § 56.6202(a). Each violation is
discussed in turn below.
a. Citation No. 9376080 (Docket No. WEST 2019-0268)
After Hoover had driven his truck off mine property, McGinnis issued Citation No.
9376080 for a violation of Section 103(a) of the Act. Section 103(a) directs authorized
representatives of the Secretary to conduct inspections of mines and declares that representatives
conducting such inspections “shall have a right of entry to, upon, or through any coal or other
mine.” 30 U.S.C. § 813(a).

41 FMSHRC Page 765

The citation described the violation as follows:
Mr. Reggie Hoover, owner of Hoover Excavating & Trucking Inc., refused to
allow inspection of the box in the back of the truck that was used to transport
explosives to the mine site and used on the day of the inspection. He would not
open the box on the back of the truck and would not answer questions regarding
the transportation of the explosives to the mine site. Reggie Hoover, owner, drove
the truck off the mine site and parked it across the street from the mine to avoid
having to open the box. This condition has not been designated as “significant and
substantial” because the conduct violated a provision of the mine act rather than a
mandatory safety or health standard.
At hearing, Hoover admitted that he moved his truck to a parking area across the street.
He claimed that the parking area was still on mine property, but also stated that he did not feel
that inspection of the truck “was pertinent to the bench thing that they were there for.” (Tr. 111,
123). He went on, however, to assert that he moved his truck in order to “g[et] it out of the way
of what was going on in the pit.” (Tr. 113). Hoover’s tenuous and inconsistent account of these
facts leads me to find that he is not a credible witness.
I credit McGinnis’ testimony concerning the facts surrounding this citation. Moreover,
whether the truck was driven off of or remained on mine property is not dispositive of whether a
violation occurred. Hoover refused to answer questions and then drove the truck away from
MSHA inspectors who were actively attempting to inspect the vehicle in the course of their
inspection of the mine. The Act specifically grants inspectors the right to conduct inspections of
mines, and Hoover’s truck, used to transport explosives to the site, was unquestionably subject to
this inspection. I find that in refusing to answer questions, refusing to open the box, and finally,
moving his truck, an act to which Hoover admitted at trial, Hoover violated Section 103(a) of the
Mine Act.
The Secretary alleges that the violation was the result of high negligence. McGinnis
testified that Hoover’s action were intentional. I agree. The Commission has held that “an
operator’s intentional violation constitutes high negligence for penalty purposes.” Topper Coal
Co., 20 FMSHRC 344, 350 (Apr. 1998) (citing Consolidation Coal Co., 14 FMSHRC 956, 96970 (June 1992)). Hoover intentionally impeded an inspection of the truck and I find the high
negligence determination appropriate.
b. Order No. 9376082 (Docket No. WEST 2019-0269)
After Hoover was informed that authorities would be contacted if he continued to impede
the inspection, he returned the truck and allowed McGinnis and Cardwell to inspect it. (Tr. 102).
Based on this inspection, McGinnis issued Order No. 9376082 pursuant to Section 104(d)(1) of
the Act for a violation of 30 C.F.R. § 56.6202(a).
Section 104(d)(1) orders are only issued after 104(d)(1) citations, which are assessed if an
inspector finds a violation that is both significant and substantial and results from an
unwarrantable failure by the operator to comply. Wyoming Fuel Co., 16 FMSHRC 1618, 1622

41 FMSHRC Page 766

n.7 (Aug. 1994). “If, during the same inspection or a subsequent inspection within 90 days of
[issuing the 104(d)(1)] citation, another violation resulting from unwarrantable failure is found, a
withdrawal order is issued under section 104(d)(1) of the Act.” Id.
30 C.F.R. § 56.6202(a) sets standards for vehicles containing explosives for use at
surface metal and nonmetal mines. In part, it states as follows:
Vehicles containing explosive material shall be— (1) Maintained in good
condition and shall comply with the requirements of subpart M of this part; (2)
Equipped with sides and enclosures higher than the explosive material being
transported or have the explosive material secured to a nonconductive pallet; (3)
Equipped with a cargo space that shall contain the explosive material (passenger
areas shall not be considered cargo space); (4) Equipped with at least two
multipurpose dry-chemical fire extinguishers or one such extinguisher and an
automatic fire suppression system; (5) Posted with warning signs that indicate the
contents and are visible from each approach . . .
30 C.F.R. § 56.6202(a). McGinnis, in the citation, described his findings concerning Hoover’s
truck:
The truck used to transport explosives to the mine site did not have warning signs
indicating the contents and did not have two multipurpose dry-chemical fire
extinguishers. Additionally the container used for the explosives was not
approved for explosives and had exposed metal in the container. The improper
transportation of explosives created an explosion hazard to miners and others. The
truck was used on the day of the inspection for a blast that was completed prior to
arrival. A fatal injury could occur if the explosives were to detonate. The owner
has held a blasting license and ATF permit for approximately twenty years and
knows the requirements for transporting explosives. Citation 9376080 was issued
for the owner not allowing MSHA to inspect the truck. This violation is an
unwarrantable failure to comply with a mandatory standard.
McGinnis determined that an injury was not likely, that an injury resulting from the
violation would be fatal, that one person would be affected, and that the negligence was high.
First, at hearing, Hoover testified that he did in fact have two fire extinguishers in the truck at the
time of inspection. However, no evidence presented or testimony suggests he attempted to show
them to McGinnis at the time of the inspection. His invitation, at the hearing, to “walk down to
my pickup in front of this building” to see the two fire extinguishers in the truck leads me to
believe that, at the time of the inspection, two fire extinguishers were not in the truck. (Tr. 111).
Next, Hoover admitted at hearing that his truck did not have placards signifying that the
vehicle was used to transport explosives. That fact alone is sufficient to find a violation of 30
C.F.R. § 56.6202(a). Because I find that a violation of the cited standard has been established
based on the lack of fire extinguishers and placards, I do not reach the issue of whether the
truck’s box used to transport explosives was a violation.

41 FMSHRC Page 767

I find high negligence an appropriate designation for this violation. Hoover has been
hauling explosives for his blasting operations for many years. If he did not know the mandatory
standards applicable to doing so, he should have. At hearing, he made it clear that he knew the
standard for the placards, and stated “I know that I’m supposed to have placards.” (Tr. 111).
In Lhoist North America of Virginia, Inc., another judge similarly affirmed a high
negligence designation for an operator’s failure to equip a truck transporting explosives with two
dry-chemical fire extinguishers. 36 FMSHRC 2413, 2428 (Sept. 2014)(ALJ). Here, the truck not
only did not have adequate fire extinguishers, but it was not marked to signify that it contained
explosives. I find Hoover Excavating was highly negligent in allowing the condition to exist,
especially given Hoover’s longtime familiarity with blasting.
i. Unwarrantable Failure
Order No. 9376082 was designated as an unwarrantable failure to comply with a
mandatory standard. The unwarrantable failure terminology is taken from Section 104(d) of the
Act, 30 U.S.C. § 814(d). The Commission has explained that unwarrantable failure is
“aggravated conduct constituting more than ordinary negligence. [It] is characterized by conduct
described as ‘reckless disregard,’ ‘intentional misconduct,’ ‘indifference,’ or a ‘serious lack of
reasonable care.’” Consol. Coal Co., 22 FMSHRC 340, 353 (Mar. 2007) (citing Emery Mining
Corp., 9 FMSHRC 1997, 2001-04 (Dec. 1987)) (citation omitted). In determining whether a
violation is an unwarrantable failure, the Commission has instructed its judges to consider all of
the relevant facts and circumstances in the case and determine whether there are any aggravating
or mitigating factors. Id. Aggravating factors to be considered include:
the length of time that the violation has existed, the extent of the violative
condition, whether the operator has been placed on notice that greater efforts were
necessary for compliance, the operator’s efforts in abating the violative condition,
whether the violation was obvious or posed a high degree of danger, and the
operator’s knowledge of the existence of the violation.
IO Coal Co., 31 FMSHRC 1346, 1352 (Dec. 2009); see also Consol., 22 FMSHRC at 353.
I find that Hoover Excavating made no efforts to abate the violative condition. A lack of
abatement efforts may be excusable if the operator had a reasonable, good faith belief that the
condition did not exist. See IO Coal, 31 FMSHRC at 1356. Here, Hoover explicitly recognized
that he was in violation, at least concerning the placards. He never intended to abate the
violation, and instead expressed his reasons for purposefully violating the standard. (See Tr.
111). I find that the lack of fire extinguishers and placards posed a high degree of danger. I
further find that the violation was obvious—it was Hoover’s personal vehicle which he
controlled. Finally, the operator’s knowledge of the existence of the violation has been
established. I find that there was no evidence that Hoover had been placed on notice that greater
efforts were necessary for compliance and that the violative condition was extensive.
Nonetheless, based on these findings, I find the unwarrantable failure designation appropriate.

41 FMSHRC Page 768

II. PENALTY
The principles governing the authority of Commission Administrative Law Judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i)
of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties
provided in [the] Act.” 30 U.S.C. § 820(i). Commission Judges are not bound by the Secretary’s
penalty regulations. Am. Coal Co., 38 FMSHRC 1987, 1990 (Aug. 2016). Rather, the Act
requires that in assessing civil monetary penalties, the judge must consider six statutory penalty
criteria: the operator’s history of violations, its size, whether the operator was negligent, the
effect on the operator’s ability to continue in business, the gravity of the violation, and whether
the violation was abated in good faith. 30 U.S.C. § 820(i).
In keeping with this statutory requirement, the Commission has explained that judges
must make findings of fact on the statutory penalty criteria. Sellersburg Stone Co., 5 FMSHRC
287, 292 (Mar. 1983), aff'd, 736 F.2d 1147, 1152 (7th Cir. 1984); see also Cantera Green, 22
FMSHRC 616, 620 (May 2000). Once these findings have been made, a judge’s penalty
assessment for a particular violation is an exercise of discretion, “bounded by proper
consideration of the statutory criteria and the deterrent purpose underlying the Act’s penalty
assessment scheme.” Sellersburg Stone, 5 FMSHRC at 294. See also Am. Coal, 38 FMSHRC at
1993 (when assessing a penalty, Commission Judges must make findings of fact under each of
the statutory penalty criteria); Black Beauty Coal Co., 34 FMSHRC 1856, 1864-68 (Aug. 2012)
(deterrence is a central tenet of the Mine Act and its penalty provisions). The Commission has
also explained that a judge may consider additional relevant facts outside of the six statutory
penalty criteria when assessing a penalty. Am. Coal Co., 40 FMSHRC 983, 989 (Aug. 2018)
(when considering a proposed settlement, a judge may consider facts that fall outside of the
section 110(i) factors, but that support settlement).
The history of assessed violations has been admitted into evidence and shows a
reasonable history for this mine. Hoover Excavating is a small operator, but was highly
negligent, as discussed above. Hoover stated at hearing that he thinks the “fines are a little
extravagant.” (Tr. 119). However, he did not put forth any evidence to demonstrate that the
penalties will affect his ability to continue in business. When asked about the ability to pay,
Hoover indicated that he had not prepared tax returns for many years, but was now working on
it, so had nothing to show. Furthermore, Hoover Excavating did not abate these violations in
good faith.

41 FMSHRC Page 769

Based upon the penalty criteria, I uphold the penalty amounts as assessed by the
Secretary, which are as follows:

Citation/ Order No.

Originally
Proposed
Penalty

Penalty Assessed

$2,000.00
$2,000.00

$2,000.00
$2,000.00

$2,421.00
$6,421.00

$2,421.00
$6,421.00

Docket No. WEST 2019-0268
9376074
9376080
Docket No. WEST 2019-0269
9376802
TOTALS

III. ORDER
Respondent is hereby ORDERED to pay the Secretary of Labor the sum of $6,421.00
within 30 days of the date of this decision.

/s/ Margaret A. Miller
Margaret A. Miller
Administrative Law Judge

Distribution: (Certified U.S. First Class Mail)
Rebecca W. Mullins, U.S. Department of Labor, Office of the Solicitor, Division of Mine Safety
and Health, 201 12th Street, Suite 401, Arlington, VA 22209
Reginald S. Hoover, Hoover Excavating & Trucking, Inc., P.O. Box 309, Coquille, OR 97423

41 FMSHRC Page 770

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

November 20, 2019
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 2019-0092
A.C. No. 35-03805-463667

v.
HOOVER EXCAVATING & TRUCKING,
INC., and its successors,
Respondent,

Mine: Plant #2
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 2019-0277
A.C. No. 35-03805-486106 A

v.
REGINALD S. HOOVER, employed by
HOOVER EXCAVATING & TRUCKING,
INC.,
Respondent.

Mine: Plant #2

DECISION AND ORDER
Appearances: Rebecca W. Mullins, U.S. Department of Labor, Office of the Solicitor,
Arlington, Virginia, for Petitioner;
Reginald S. Hoover, pro se, Coquille, Oregon, for Respondents.
Before:

Judge Miller

These cases are before me upon petitions for assessment of a 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. § 815(d) (“the Act”). These cases involve one citation and one order issued to
Hoover Excavating & Trucking, Inc. pursuant to Section 104(d)(1) of the Act, with originally

41 FMSHRC Page 771

proposed penalties totaling $110,400.00. The Secretary also seeks to impose individual liability
pursuant to Section 110(c) of the Act, 30 U.S.C. § 820(c), against mine owner Reginald Hoover
for the violations. The alleged violations relate to a blasting accident that occurred on December
11, 2017. The parties presented testimony and evidence regarding the citation and order at a
hearing held in Eugene, Oregon on September 18, 2019.
Plant #2 is a surface crushed and broken stone mine located in Myrtle Point, Oregon.
Hoover Excavating is an “operator” as defined in Section 3(d) of the Mine Act, 30 U.S.C. §
803(d). Thus, the mine is subject to the provisions of the Mine Act and the jurisdiction of the
Commission. The mine consists of an open pit area where rock is blasted, crushed into aggregate,
loaded, and hauled out of the mine.
On December 11, 2017, an accident occurred at the mine following a detonation of
explosives by Reginald Hoover, the mine’s owner. Three miners in the pit area were struck with
flyrock and debris and seriously injured. MSHA conducted an investigation into the accident and
as a result, a citation and order were issued to Hoover Excavating for failure to follow the
manufacturer’s instructions on the blast initiating device and for failure to effectively clear the
blast area of all non-essential persons prior to attaching the initiating device. A section 110(c)
case was assessed for the two violations against Reginald Hoover as an agent of the operator.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
The findings of fact detailed below are based on the record as a whole and my careful
observation of the witnesses during their testimony.
On December 11, 2017, Hoover Excavating planned to perform blasting on the 50-60
foot highwall at Plant #2. The blast required several thousand pounds of explosives and was set
to be detonated, as was the practice at the mine, by mine owner Reginald Hoover. A contractor
worked to set up the area and Hoover, the blaster-in-charge, made preparations to initiate the
blast.1 Hoover was concerned about the design of the shot because there was an area of water, 40
feet by 50 feet nearby, but the drilling contractor did not deem it a factor in blast preparations.
Tr. 69. For this blast, Hoover chose a non-electric EIT HR-1 Scorpion-style initiating device.
The initiating device had a safety jack located at the top of the narrow area of the initiator that
could be removed in order to safely test or repair the device. A warning label directing users not
to connect the device until ready for detonation was stamped on the initiating device directly
above the firing button. Sec’y Ex.4. Based upon his prior experience with this type of initiator,
Hoover decided to test fit the shock tube by inserting the initiating device into the tube before
detonating.
As Hoover handled the device, a miner began to record the process. Hoover stood off to
the side with the device in hand, while a group of eight miners gathered in the pit area joked with
one another and took bets on how far the rocks would fly. The pit area was about 150 to 200 feet
from the highwall and miners had warned Hoover that the highwall itself was unsafe, that they
1

Hoover testified that he has years of experience with blasting and has a Federal permit
issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives to possess explosives.

41 FMSHRC Page 772

were too close to the highwall during blasts, and that the water in the area added an additional
hazard. Tr. 39.
Just prior to the blast, the miners in the pit area moved to grab their hard hats and called
out to Hoover to ask where they should stand, but Hoover did not respond. Tr. 27, 59-60. Hoover
told investigators he failed to respond because he wanted to be certain that the shock tube fit the
initiating device, and so there was no “sense in telling everybody to clear out of the area” until he
was ready to detonate. Tr. 42. Nonetheless, miners began to move out of the pit.
Two miners made their way to the excavator located nearby and crawled under, while
another moved next to a nearby pickup. Without first unplugging the safety jack, Hoover tried to
“dry fit” the shock tube into the initiating device. Hoover told investigators that he had to whittle
the shock tube down with a pocket knife in the past to make it fit and that he was aware that the
safety jack could be removed, but he did not remove it so that he could more easily grip the
device. While attempting to fit the initiating device with the shock tube, Hoover detonated the
blast.
Softball-to basketball-sized rock shot outward from the face of the highwall and rolled
through the pit area. The larger pieces of flyrock hit the front of the excavator where the two
miners sought shelter, bounced, and rolled underneath. As a result, both of the miners were hit by
the rocks and received serious injuries. The force of the blast was so intense that the miner
standing next to the pickup truck’s tailgate was blown nearly 30 feet past the truck and the truck
itself was blown ahead 20 feet. The miner suffered severe injuries and was airlifted to a Portland
hospital, where he underwent multiple surgeries to address a collapsed lung, crushed pelvis,
crushed spinal cord, and several torn ligaments. Flyrock and debris also caused extensive
damage to the body of the pickup truck, and buried the county road, an estimated 100 feet behind
where the miners had taken cover. Tr. 28, 36, 62.
The following day Inspector Scott Amos, a certified accident investigator for MSHA,
arrived at the mine, accompanied by Inspector Benjamin Burns, an MSHA inspector since 2007,
along with two other MSHA inspectors. The inspectors examined the initiating device, the pit
area, and spoke to the miners. Photographs taken during the investigation and entered into
evidence depict the initiating device with the safety jack intact. Sec’y Ex. 4. A warning label
stamped directly on the initiating device above the firing button reads “NEVER CONNECT
UNTIL READY TO DETONATE.” Sec’y Ex. 4. Inspector Amos explained that it would have
taken the user only seconds to remove the safety jack to prevent accidental discharge while dry
fitting. Tr. 24-25.
A photo of the pit area where the accident occurred, introduced as Secretary’s Exhibit 3,
depicts an overview of the accident scene and the red pickup truck that was in the pit area and
severely damaged by flyrock and other debris. Sec’y Ex. 3, 61-62. The §103(k) order to secure
the accident scene was terminated on December 20, 2017 and was not contested. Citation No.
8998987 and Order No. 8998988 remain at issue in this case.

41 FMSHRC Page 773

A. WEST 2019-0092
Citation No. 8998987
As a result of the investigation into the December 11, 2017 accident, MSHA Inspector
Amos issued a §104(d)(1) citation for a violation of 30 C.F.R. § 56.6308. The citation describes
the violation as follows:
The mine operator failed to follow manufacturer instructions on the EIT
HR-1 Scorpion Style blast initiating device. The device was clearly
marked “never connect until ready to detonate.” The mine operator stated
that he was “dry fitting” the initiating tube into the device and “he didn’t
want to bother with clearing people out” of the blast area, until he was
sure the initiator would fit the NONEL type explosive initiating tube.
Furthermore, the initiating device had a removeable [sic] plugin to “dry
fit” the tubing, without being connected to the device. Reggie Hoover
stated that he knew that the plugin should not be hooked to the device
while dry fitting. Reggie Hoover stated he was aware of the
manufacturer’s warning written onto the device itself. Reggie Hoover
engaged in more than ordinary negligence in that he was aware of the
manufacturer’s stated use of the device, and he chose not to follow written
warnings. This violation stems from an unwarrantable failure to comply
with a mandatory standard.
30 C.F.R. § 56.6308 requires that “[i]nitiation systems shall be used in accordance with
the manufacturer’s instructions.” The Secretary alleges that the mine operator failed to follow the
manufacturer’s instructions on the EIT HR-1 non-electric blast initiating device in that the
manufacturer’s instructions warn the user not to connect the blasting device until ready to
detonate. Hoover concedes that he was aware of the manufacturer’s warning stamped on the
device itself, but argues that it was difficult to read. Hoover argues that he did not knowingly
initiate the blast but instead it was a premature detonation. The violation was designated as
significant and substantial and as an unwarrantable failure, with high negligence. The Secretary
specially assessed a penalty of $55,200.00.
To prevail on a penalty petition, the Secretary bears the burden of proving an alleged
violation by a preponderance of evidence. RAG Cumberland Res. Corp., 22 FMSHRC 1066,
1070 (Sept. 2000), aff’d, 272 F.3d 590 (D.C. Cir. 2001); Jim Walter Res., Inc., 9 FMSHRC 903,
907 (May 1987). The Secretary may establish a violation by inference in certain situations, but
only if the inference is “inherently reasonable” and there is “a rational connection between the
evidentiary facts and the ultimate fact inferred.” Garden Creek Pocahontas Co., 11 FMSHRC
2148, 2152-53 (Nov. 1989).
During the investigation, Inspector Amos examined the initiating device and observed
that the label stamped onto the device above the fire button was clearly marked with a warning
for the user not to connect until ready to detonate. Amos also noticed that the removable safety
jack had been left in the device but, in order to comply with the manufacturers’ direction, it

41 FMSHRC Page 774

should have been unplugged and all miners cleared from the area. When asked about his use of
the initiating device, Hoover replied that he was “dry fitting” the shock tube into the initiator
because he had previously encountered fit issues with a similar device. He intended only to fit
the two pieces together and did not intend to detonate the blast.
Inspector Burns also inspected the blast initiating device, and although he was not
familiar with the specific device, he immediately found the manufacturer’s warning label above
the fire button. Sec’y Ex. 4. According to Burns, the label was obvious to the user and clearly
warned that the initiating device should not be connected with the shock tube until the user was
ready to initiate the blast. If the safety jack had been removed while Hoover was dry fitting the
device, the blast would not have occurred. Tr. 56-57. Hoover, on the other hand, stated that the
device should not have gone off even though he did not engage the safety device, and therefore,
it must have malfunctioned. Tr. 72.
I find that the Secretary has demonstrated that Hoover did not use the initiating device in
accordance with the manufacturer’s instructions. Inspectors Amos and Burns were able to see
clearly that the device was marked “NEVER CONNECT UNTIL READY TO DETONATE”
just above the fire button. I credit Amos’ testimony that it would have taken seconds to comply
with the warning label and remove the safety jack so that Hoover could continue to dry fit the
shock tube into the initiating device. While Hoover argues that the detonation was inadvertent,
he clearly disregarded the warning label printed on the device, failed to remove the safety jack,
and connected the shock tube to the initiating device, which triggered the blast. His actions,
therefore, violated the mandatory standard.
Significant and Substantial
The Secretary alleges that the violation occurred, that any injury could reasonably be
expected to be permanently disabling, and that the violation was significant and substantial. A
significant and substantial (“S&S”) violation is described in Section 104(d)(1) of the Mine Act as
a violation “of such nature as could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(l). A violation is
properly designated S&S “if based upon the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
In Mathies Coal Co., the Commission established the standard for determining whether a
violation is S&S:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor
must prove: (1) the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard—that is, a measure of danger to safety—
contributed to by the violation; (3) a reasonable likelihood that the hazard

41 FMSHRC Page 775

contributed to will result in an injury; and (4) a reasonable likelihood that
the injury in question will be of a reasonably serious nature.
6 FMSHRC 1, 3-4 (Jan. 1984).
The second element of the Mathies test addresses the likelihood of the occurrence of the
hazard the cited standard is designed to prevent. Newtown Energy, Inc., 38 FMSHRC 2033,
2037-38 (Aug. 2016). The Commission has explained that “hazard” refers to the prospective
danger the cited safety standard is intended to prevent. Id. at 2038. For example, Newtown
involved a violation of a standard requiring that equipment be locked out and tagged out while
electrical work is being performed. The Commission determined that the hazard was a miner
working on energized equipment. The likelihood of the hazard occurring must be evaluated with
respect to “the particular facts surrounding the violation.” Id.; see also McCoy Elkhorn Coal
Corp., 36 FMSHRC 1987, 1991-92 (Aug. 2014); Mathies, 6 FMSHRC at 4. At the third step, the
judge must assess whether the hazard, if it occurred, would be reasonably likely to result in
injury. Newtown, 38 FMSHRC at 2037. The existence of the hazard is assumed at this step. Id.;
Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148, 161-62 (4th Cir. 2016). As with the
likelihood of occurrence of the hazard, the likelihood of injury should be evaluated with respect
to specific conditions in the mine. Newtown, 38 FMSHRC at 2038. Finally, the Commission has
found that the S&S determination should be made assuming “continued normal mining
operations.” McCoy, 36 FMSHRC at 1990-91.
Having found the underlying violation of a mandatory safety standard, I find that this
standard, which requires users to heed the manufacturer’s warnings, is designed to promote safe
use of a detonating device and prevent an unplanned detonation. Thus, the standard is designed
to protect against misuse of blasting materials that could result in a premature detonation.
Hoover, while ignoring the warning to not connect until ready to detonate, caused a premature
blast and as a result miners were not prepared or in a safe area when the blast occurred. Given
the conditions at this mine, the violation contributed to a hazard which was highly likely to
occur. The premature blast caused large pieces of rock to be thrown into the area, striking miners
and resulting in serious injury. Therefore, the hazard was reasonably likely to result in injury and
any injury was reasonably likely to be serious, satisfying steps three and four of the Mathies test.
I conclude that the violation is properly designated as S&S.
Negligence and unwarrantable failure
The Secretary alleges next that the violation was the result of high negligence and
constituted an unwarrantable failure to comply with a mandatory standard. As the Commission
has recognized, “[e]ach mandatory standard … carries with it an accompanying duty of care to
avoid violations of the standard, and an operator’s failure to meet the appropriate duty can lead
to a finding of negligence if a violation of the standard occurs.” A.H. Smith Stone Co., 5
FMSHRC 13, 15 (Jan. 1983). In determining whether an operator met its duty of care, the judge
must consider “what actions would have been taken under the same circumstances by a
reasonably prudent person familiar with the mining industry, the relevant facts, and the
protective purpose of the regulation.” Newtown, 38 FMSHRC at 2047; Brody Mining, LLC, 37
FMSHRC 1687, 1702 (Aug. 2015). Commission judges are not limited to the negligence analysis

41 FMSHRC Page 776

contained in Part 100 and instead consider “the totality of the circumstances holistically.” Brody,
37 FMSHRC at 1702-03.
Inspector Burns and Inspector Amos explained that Reginald Hoover, the blaster-incharge, failed to follow the warning label on the initiating device. Hoover mentioned at hearing
that he could not read the label on the device, but as a person experienced in working with
explosives and initiating devices similar to the one used that day, he should have known the
correct way to safely operate the device. By ignoring the warning label, his actions resulted in an
early detonation and caused serious injuries to three miners in the pit area. A reasonably prudent
operator would have followed the explicit manufacturer’s instructions to “NEVER CONNECT
UNTIL READY TO DETONATE” printed on the initiating device. In an attempt to test the
device, a mine operator would have disconnected the removable safety jack from the initiation
tube to prevent a connection to the firing mechanism. Hoover did neither of these things,
demonstrating an aggravated lack of care constituting more than ordinary negligence.
The unwarrantable failure terminology is taken from Section 104(d) of the Act, 30 U.S.C.
§ 814(d). The Commission has explained that unwarrantable failure is “aggravated conduct
constituting more than ordinary negligence. [It] is characterized by conduct described as
‘reckless disregard,’ ‘intentional misconduct,’ ‘indifference,’ or a ‘serious lack of reasonable
care.’” Consol. Coal Co., 22 FMSHRC 340, 353 (Mar. 2007) (citing Emery Mining Corp., 9
FMSHRC 1997, 2001-04 (Dec. 1987)) (citations omitted). In determining whether a violation is
an unwarrantable failure, the Commission has instructed its judges to consider all of the relevant
facts and circumstances in the case and determine whether there are any aggravating or
mitigating factors. Id. Aggravating factors to be considered include
the length of time that the violation has existed, the extent of the violative
condition, whether the operator has been placed on notice that greater
efforts were necessary for compliance, the operator’s efforts in abating the
violative condition, whether the violation was obvious or posed a high
degree of danger, and the operator’s knowledge of the existence of the
violation.
IO Coal Co., 31 FMSHRC 1346, 1352 (Dec. 2009); see also Consol., 22 FMSHRC at 353.
There is generally a high degree of danger involved when handling explosives and
initiating devices and that degree of danger was heightened here when Hoover ignored the
warning label. The warning printed on the device, while stamped in small print, should have
been obvious to a blaster-in-charge who had extensive experience blasting. Hoover knew or at
least should have known the hazard associated with failing to use the safety jack as intended and
should have known not to attempt to fit the shock tube into the initiator with the safety jack
engaged until he was ready to detonate. The hazard was obvious, known to Hoover, and he did
nothing to abate it. The extent of the violative condition was widespread, as the blast area
comprised the entire pit area where miners were located when the explosives were detonated.
While the condition existed for a relatively short period of time, the Commission has
recognized that a brief duration is not necessarily enough to remove a finding of

41 FMSHRC Page 777

unwarrantability. Knight Hawk, 38 FMSHRC at 2371. In Midwest Materials Inc., 19 FMSHRC
30, 36 (Jan. 1997), the Commission reversed a finding of no unwarrantability and took issue with
the judge’s reliance on the brief duration of the condition in light of the condition’s high degree
of danger and obviousness. Similarly, in this case the duration was short due to the nature of the
condition—it took only seconds for Hoover to ignore the instructions on the initiating device and
trigger the blast without warning. Finally, there is no evidence that the mine was placed on notice
that greater efforts were necessary or that the mine had previously been cited for similar
violations. Taken as a whole, the factors analyzed here weigh in favor of an unwarrantable
failure finding.
Order No. 8998988
Inspector Amos next issued a §104(d)(1) order alleging that the mine operator failed to
clear the blast area of persons not essential prior to initiating the blast. In the citation, Amos
described his findings as:
The mine operator initiated a blast which injured three miners. The blast
area had not been effectively cleared of persons not essential to blasting
operations. Effective blasting shelters or safe locations were not utilized.
Reggie Hoover, owner, stated that he was aware of safe blasting
procedures. He stated that he “incidentally” initiated the blast early, while
dry fitting NONEL shot tube into an initiating device. He stated he “didn’t
clear the area” before hooking up to the initiating device, because he
“wasn’t sure” that the initiating tube would fit the initiating device. No
verbal warning was given prior to initiating the blast, giving the miners
little time to prepare for the damage that unfolded shortly afterwards.
Reggie Hoover engaged in aggravated conduct constituting more than
ordinary negligence, in that he stated he was aware of safe blasting
procedures, but knowingly failed to follow them. This violation is an
unwarrantable failure to comply with a mandatory standard. Citations
#8998987 and 8998989 are being issued in conjunction with this order.
The Secretary alleges a violation of 30 C.F.R. § 56.6306(e), which provides that “[i]n
electric blasting prior to connecting to the power source, and in nonelectric blasting prior to
attaching an initiating device, all persons shall leave the blast area except persons in a blasting
shelter or other location that protects them from concussion (shock wave), flying material, and
gases.” 30 C.F.R. § 56.6306(e) (emphasis added). The violation was designated as S&S and as
an unwarrantable failure, with high negligence. The Secretary specially assessed a penalty of
$55,200.00.
In order to substantially comply with § 56.6306(e), an operator must determine the extent
of the blast area. According to 30 C.F.R. § 56.2, “blast area” means “the area in which
concussion (shock wave), flying material, or gases from an explosion may cause injury to
persons.” In determining the blast area, the following factors must be considered: (1) geology or
material to be blasted; (2) blast pattern; (3) burden, depth, diameter, and angle of the holes; (4)

41 FMSHRC Page 778

blasting experience of the mine; (5) delay system, powder factor, and pounds per delay; (6) type
and amount of explosive material; and (7) type and amount of stemming. 30 C.F.R. §56.2.
The Secretary argues that because the blast area was not cleared prior to Hoover attaching
the initiating device, a violation is shown. Amos and Burns agreed that in non-electric blasting,
the person in charge of the blast is responsible for determining the blast zone and clearing the
area or directing miners to seek shelter in a location that protects them from the effects of the
blast. Here, Hoover failed to give a verbal warning and clear the blast area prior to utilizing the
initiating device. Hoover contends that he told the miners present to get in a safe spot, which he
evaluated based on past experience and previous shots. Hoover testified that although it was not
on the video, he told all of the miners in the area to get in a safe place and cleared the area. Tr.
73. Later, Hoover explained that he did not call out to and warn the miners of a forthcoming
explosion, as he normally does in a blast, because he was not in the initiating stage. Tr. 77. Given
Hoover’s contradictory testimony, I credit the inspectors’ testimony that Hoover did not give a
warning or otherwise cause persons to leave the blast area.
As the blaster-in-charge, Hoover did not correctly determine the blast area. Both of the
inspectors explained that in the process of investigating the accident, they determined the blast
area had not been cleared because the miners were not aware of the extent of the blast area and
did not move to a safe location. Hoover failed to adequately take into account all of the factors
articulated in 30 C.F.R. § 56.2. Hoover acknowledged only that he relied on past experience and
“w[h]ere you’re at and that kind of stuff” to determine the blast area. Tr. 81. He explained that he
did not factor in the water and did not consider the specific factors enumerated in the MSHA
standards with respect to this particular blast.
Hoover not only failed to adequately determine the blast area, he also failed to ensure
miners were cleared or adequately sheltered to protect them from flyrock, gases, and other debris
prior to connecting the initiating device. To shield themselves from the blast, two miners sought
shelter underneath an excavator in the pit area. However, as Inspector Amos acknowledged, an
excavator has no protection in the front and is not adequate shelter. Because of the lack of
protection, large rocks from the blast flew under the excavator where the miners were sheltering
and caused serious injuries. In addition, the miner who moved to the side of the pickup was
thrown by the blast and suffered life-threatening injuries. I find that Hoover violated the
mandatory standard when he did not adequately consider all factors in determining the range of
the blast, did not warn miners to clear the area, and did not instruct miners to take adequate
shelter from the blast.
Hoover insists that he was not required to take steps to see that the miners were in a safe
location because he was not ready to blast; he was simply preparing to blast. However, he was in
the process of attaching the initiating device and the standard requires the area to be cleared prior
to attaching that device.

41 FMSHRC Page 779

Significant and Substantial
The Secretary alleges that the violation occurred, was permanently disabling, and was
S&S. As noted in the discussion above, I have found that there is a violation of a mandatory
standard. The standard requires all persons to leave the blast area, or to be protected by adequate
shelter, prior to the connection of the initiating device. The standard is meant to protect against
the hazard of flyrock or other loose material striking miners who are not in a safe and protected
area when a blast is detonated. A miner who either remains in the blast area, or is not in adequate
shelter, will suffer a serious injury. Here, the miners were in the blast area, yet were not in an
adequate shelter. Therefore, an injury was likely to and did occur. As Amos explained, miners
remained in the pit area about 150 to 200 feet from the highwall when the initiating device was
triggered. According to Burns, some miners had moved closer to the excavator in preparation for
the blast, but they were still exposed to the blast area. Three miners were seriously injured either
because of almost complete exposure to the blast and debris, or because of the inadequate shelter
of the excavator. Finally, the resulting injury would be reasonably serious due in large part to the
size of the flyrock and other debris blasted through the pit. Therefore the violation was properly
designated as S&S.
Negligence and unwarrantable failure
I find that the high negligence is an appropriate designation. A reasonably prudent
operator would have taken the steps outlined in 30 C.F.R. § 56.2 to determine the potential extent
of the blast area instead of assuming that the blast area would be the same as previous shots.
Likewise, a reasonably prudent operator would have cleared the blast area or ensured that all
persons in that area were protected from flyrock and debris in a blasting shelter or other safe
location prior to using the initiating device in any way. It was Hoover’s responsibility as blasterin-charge to determine the blast area and see that the area was clear, or that miners were in a safe
place, before connecting the initiating device. He failed to do any of those things.
The Secretary has demonstrated that the violation was the result of an unwarrantable
failure to comply. Here, the obviousness and high degree of danger are important aggravating
factors. It should have been obvious to Hoover that miners must clear the area before he began
using the initiating device, even if he was uncertain the device would work. The failure to clear
or otherwise protect miners in the blast area constituted a high degree of danger and serious
injuries resulted from the flyrock and debris that struck the miners.
The elements of knowledge, extent, and lack of abatement are also aggravating factors in
this case. Hoover knew or reasonably should have known that the blast area needed to be cleared,
or that an adequate blasting shelter needed to be in place prior to attaching the shock tube to the
initiating device. An experienced blaster also should have known that the miners were not in a
safe location. Hoover admitted to investigators that he knew he should have cleared the area, but
he did not want to clear the area until he was certain the blast would detonate. The extent of the
violation was widespread and the mine operator made no effort to abate the violation.
The length of time the condition existed was relatively brief but the condition involved a
high degree of danger and was obvious to Hoover. The Secretary argues that the mine was on

41 FMSHRC Page 780

notice that the miners needed to be further away in order to be clear from the blast area.
However, no evidence was presented that the mine had been cited for similar violations or
otherwise been given notice prior to December 2017. Given the evidence as a whole, I find that
the violation was a result of an unwarrantable failure to comply.
B. WEST 2019-0277
110(c) Agent Case Against Reginald Hoover
The Secretary seeks to impose personal liability pursuant to Section 110(c) of the Act
against Reginald Hoover for his actions at the time of the accident on December 11, 2017.
Section 110(c) provides that:
[w]henever a corporate operator violates a mandatory health or safety
standard . . . any director, officer, or agent of such corporation who
knowingly authorized, ordered, or carried out such violation . . . shall be
subject to the same civil penalties, fines, and imprisonment that may be
imposed upon a person under subsections (a) and (d) [providing for
assessment of civil and criminal penalties against mine operators].
30 U.S.C. § 820(c). The Commission has explained that an agent is liable under Section 110(c)
when the agent “knew or had reason to know of a violative condition. McCoy Elkhorn Coal
Corp., 36 FMSHRC 1987, 1996 (Aug. 2014). The relevant question is whether the agent
knowingly acted; the Secretary need not prove that the individual knowingly violated the law.
Id.; Warren Steen Constr. Inc., 14 FMSHRC 1125, 1131 (July 1992).
The Commission has determined that “[a]n individual acts knowingly where he is ‘in a
position to protect employee safety and health [and] fails to act on the basis of information that
gives him knowledge or reason to know of the existence of a violative condition.’” McCoy, 36
FMSHRC at 1996 (quoting LaFarge Constr. Materials, 20 FMSHRC 1140, 1148 (Oct. 1998))
(alteration in original). Liability under Section 110(c) “is generally predicated on aggravated
conduct constituting more than ordinary negligence” but “does not hinge on whether an agent
engaged in ‘willful’ conduct. Matney, employed by Knox Creek Coal Co., 34 FMSHRC 777, 783
(Apr. 2012). For the purposes of Section 110(c), “knowing” conduct includes deliberate
ignorance and reckless disregard as well as actual knowledge. Freeman United Coal Mining Co.
v. FMSHRC, 108 F.3d 358, 363 (D.C. Cir. 1997).
The Secretary asserts that Hoover is an agent of the mine because he is and was the
owner and president of Hoover Excavating at the time the violations occurred. In addition,
Hoover was the blaster-in-charge at the time of the blast. According to Section 3(e) of the Mine
Act, agent means “any person charged with responsibility for the operation of all or part of a coal
or other mine or the supervision of the miners in a coal or other mine.” 30 U.S.C. § 802(e). The
Commission describes an agent as someone whose job function is crucial to the mine’s operation
and involves a level of responsibility normally delegated to management personnel. See
Ambrosia Coal & Constr. Co., 18 FMSHRC 1552, 1560 (Sept. 1996). Hoover agreed at hearing
that he is the owner and operator of Hoover Excavating, and I find that he is an agent as
described in the Act.

41 FMSHRC Page 781

The Secretary argues next that Hoover, as the mine’s agent, knowingly authorized,
ordered, or carried out each of the violations of the mandatory standards at issue. Amos and
Burns concluded that Hoover was responsible for detonating the blast, and clearing the blast area
or ensuring that miners were in a blast shelter or other protective location prior to using the
initiating device. Hoover argues that he did not knowingly authorize, order, or carry out the
violations. He claims he did not know that the accident would result and would not have
knowingly proceeded with the actions that resulted in the violations.
There is sufficient evidence to demonstrate that Hoover, acting as an agent of the mine,
knew that he was not complying with the warning label on the initiating device on the day of the
accident. Hoover’s actions resulted in the findings of high negligence and unwarrantable failure
for Citation No. 8998987, and can be attributed to Hoover as an agent of the mine. For example,
Hoover had experience working with initiating devices similar to the EIT HR-1 device and knew
that the safety jack should have been removed before attempting to dry fit. Hoover was aware of
the manufacturer’s warning, ignored it, and continued to tinker with the device until the blast
went off prematurely. Experienced blasters and those experienced with explosives should
understand the serious consequences of mishandling the devices they routinely use. While
Hoover testified that he did not intend to initiate the blast, he also testified that he had many
years of experience in blasting and in using similar types of initiators. Hoover knew or should
have known of the manufacturer’s instruction and that he had the option to utilize the safety
device prior to dry fitting the shock tube.
Similarly, there is sufficient evidence to support the finding that Hoover knowingly failed
to comply with 30 C.F.R. § 56.6306(e) as alleged in Order No. 8998988. Prior to attaching the
initiating device, Hoover did not clear the blast area or see to it that miners were protected by an
adequate blast shelter or other location. As Hoover was handling the initiating device, miners
remained in the pit area and one questioned Hoover about what they should be doing. On one
hand Hoover argued that he told miners to leave the area, but on the other hand, he said he did
not “holler” as he usually does because he was not in that stage of initiating the blast, and was
not certain the device would work. Tr. 73, 77. An experienced blaster should know and use all of
the factors in the regulation to determine a blast area and then, before using the initiating device,
be certain that all miners are clear of the hazards associated with the blast. Based on the record as
a whole, I find Hoover individually liable for both violations pursuant to Section 110(c) of the
Act.
II. PENALTY
The principles governing the authority of Commission Administrative Law Judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i)
of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties
provided in [the] Act.” 30 U.S.C. § 820(i). Commission Judges are not bound by the Secretary’s
penalty regulations or his special assessments. Am. Coal Co., 38 FMSHRC 1987, 1990 (Aug.
2016). Rather, the Act requires that in assessing civil monetary penalties, the judge must
consider six statutory penalty criteria: the operator’s history of violations, its size, whether the
operator was negligent, the effect on the operator’s ability to continue in business, the gravity of
the violation, and whether the violation was abated in good faith. 30 U.S.C. § 820(i).

41 FMSHRC Page 782

In keeping with this statutory requirement, the Commission has explained that judges
must make findings of fact on the statutory penalty criteria. Sellersburg Stone Co., 5 FMSHRC
287, 292 (Mar. 1983), aff'd, 736 F.2d 1147, 1152 (7th Cir. 1984); see also Cantera Green, 22
FMSHRC 616, 620 (May 2000). Once these findings have been made, a judge’s penalty
assessment for a particular violation is an exercise of discretion “bounded by proper
consideration of the statutory criteria and the deterrent purpose underlying the Act’s penalty
assessment scheme.” Sellersburg Stone, 5 FMSHRC at 294. The Commission requires that its
judges explain any substantial divergence from the penalty proposed by the Secretary. Am. Coal,
38 FMSHRC at 1990. However, the judge’s assessment must be de novo based upon her review
of the record, and the Secretary’s proposal should not be used as a starting point or baseline. Id.
The Secretary has proposed a penalty of $55,200.00 for the violation cited in Citation No.
8998987, which alleges a failure to use the initiation device in accordance with the
manufacturer’s instructions. The proposed penalty was assessed as a special assessment, but in
determining the penalty, I have considered and applied the six penalty criteria found in Section
110(i) of the Act. The history of assessed violations has been admitted into evidence and shows
five violations by this operator in the 15-month period prior to the accident, none of which
involve a similar standard. Sec’y Ex. 1. I have addressed the negligence and the gravity in the
discussion above and have found that the violation was S&S and the result of high negligence
and an unwarrantable failure to comply with a mandatory standard. Good faith abatement has
been considered.
The mine has not properly raised the ability to pay argument, as “[i]n the absence of
proof that the imposition of authorized penalties would adversely affect [an operator’s] ability to
continue in business, it is presumed that no such adverse [e]ffect would occur.” John Richards
Constr., 39 FMSHRC 959, 965 (May 2017) (citing Sellersburg Co., 5 FMSHRC at 294). Hoover
argues that the penalties assessed were excessive but he could not provide financial information
to support his claim, as he had not completed and filed taxes for a number of years. Tr. 121.
Separate from ability to pay, the record demonstrates that Hoover Excavating is a small operator.
The penalty reflects the gravity and negligence, but is mitigated by good faith abatement, history
of similar violations, and the size of the operator. Therefore, I assess a penalty of $30,000.00.
The Secretary has proposed a penalty of $55,200.00 for the violation cited in Order No.
8998988, which alleges a failure to clear the blast area or provide adequate blast shelter prior to
attaching the non-electronic initiating device. The proposed penalty was a special assessment. In
assessing a penalty, I have considered and applied the statutory penalty criteria. The history of
assessed violations shows no similar violations for this standard in the preceding 15-month
period. Sec’y Ex. 1. Negligence and gravity are addressed in the discussion above, with findings
of high negligence, unwarrantable failure, and S&S. I have considered the operator’s history,
good faith abatement and size as mitigation of the proposed penalty, and I assess a penalty of
$30,000.00.
Reginald Hoover, as the agent named in this matter, has been assessed proposed penalties
of $5,700.00 and $6,300.00 for his actions with respect to Citation No. 8998987 and Order No.
8998988. The same penalty criteria apply to Hoover as an agent and have been addressed above.
Hoover has raised the issue of ability to pay but has provided no evidence in that regard. He does

41 FMSHRC Page 783

not have a history of violations as an agent of the mine. Therefore, I assess penalties of
$5,000.00 for each violation.
Citation/
Order No.

Originally Proposed
Penalty

Penalty Assessed

Docket No. WEST 2019-0092
8998987
8998988
TOTAL

$55,200.00
$55,200.00
$110,400.00

$30,000.00
$30,000.00
$60,000.00

Citation/
Order No.

Originally Proposed
Penalty

Penalty Assessed

Docket No. WEST 2019-0277
8998987
8998988
TOTAL

$5,700.00
$6,300.00
$12,000.00

$5,000.00
$5,000.00
$10,000.00
III. ORDER

Respondent, Hoover Excavating & Trucking, Inc., is hereby ORDERED to pay the
Secretary of Labor the sum of $60,000.00 within 30 days of the date of this decision.
Further, Reginald S. Hoover, as an agent of the operator, is ORDERED to pay the
Secretary of Labor the sum of $10,000.00 within 30 days of the date of this decision.

/s/ Margaret A. Miller
Margaret A. Miller
Administrative Law Judge

41 FMSHRC Page 784

Distribution: (Certified U.S. First Class Mail)
Rebecca W. Mullins, U.S. Department of Labor, Office of the Solicitor, Division of Mine Safety
and Health, 201 12th Street, Suite 401, Arlington, VA 22209
Reginald S. Hoover, Hoover Excavating & Trucking, Inc., P.O. Box 309, Coquille, OR 97423

41 FMSHRC Page 785

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9900 / FAX: 202-434-9954

December 18, 2019
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING:
Docket No. YORK 2019-0025
A.C. No. 37-00202-481040

v.
HOPKINS HILL SAND & STONE, LLC,
Respondent

Mine: Hopkins Hill Sand & Stone

SUMMARY DECISION
Before: Judge Bulluck
This case is before me upon a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”) on behalf of the Mine Safety and Health Administration
(“MSHA”) against Hopkins Hill Sand & Stone, LLC (“Hopkins Hill”), pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d).
The Secretary seeks a civil penalty in the amount of $5,903.00 for an alleged violation of this
mandatory safety standard regarding timely accident notification.
Hopkins Hill filed a Motion for Summary Decision (“Resp’t Mot.”); a Memorandum in
Support of Respondent’s Motion for Summary Decision (“Resp’t Mem.”), including Barry
Manfredi’s Affidavit (“Manfredi Aff.”) and an attached exhibit (“Ex. A”); Joint Factual
Stipulations of the Parties (“Jt. Stips.”); and a Supplemental Memorandum on Behalf of
Respondent In Support of Motion for Summary Decision (“Resp’t Supp. Mem.”). The Secretary
filed an Opposition to Respondent’s Motion for Summary Decision and Cross-Motion for
Summary Decision (“Sec’y Mot.”); a Memorandum of Points and Authority in Support of His
Opposition to Respondent’s Motion for Summary Decision and In Support of Secretary’s CrossMotion for Summary Decision (“Sec’y Mem.”), and attached exhibits (“Exs. P–1 through P–8”),
including a copy of the Citation, MSHA Inspector Jerry Anguiano’s notes, Patrol Officer
Michael Dugan’s Incident Report, and Renzo Marietti’s Witness Statement; and Inspector Jerry
Anguiano’s Affidavit (“Anguiano Aff.”). The following are issues for resolution in this case: (1)
whether Hopkins Hill violated 30 C.F.R. § 50.10(a) and, if so, (2) whether Hopkins Hill was
moderately negligent in violating the standard, and (3) the appropriate penalty.
Pursuant to Commission Rule 67(b), “[a] motion for summary decision shall be granted
only if the entire record, including the pleadings, depositions, answers to interrogatories,
admissions and affidavits, shows: (1) that there is no genuine issue as to any material fact; and
(2) that the moving party is entitled to summary decision as a matter of law.” 29 C.F.R.
§ 2700.67.

41 FMSHRC Page 786

It is well settled that summary decision is an extraordinary measure and the Commission
has analogized it to Rule 56 of the Federal Rules of Civil Procedure, which the Supreme Court
has construed to authorize summary judgment only “upon proper showings of the lack of a
genuine, triable issue of material fact.” Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9
(Jan. 2007) (citations omitted). When considering a motion for summary decision, the
Commission has noted that “the Supreme Court has stated that ‘we look at the record on
summary judgment in the light most favorable to . . . the party opposing the motion,’ and that
‘the inferences to be drawn from the underlying facts contained in [the] materials [supporting the
motion] must be viewed in the light most favorable to the party opposing the motion.”’ Id. at 9
(quoting Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962); United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)). Moreover, Commission Judges should not grant
motions for summary decision “unless the entire record shows a right to judgment with such
clarity as to leave no room for controversy and establishes affirmatively that the adverse party
cannot prevail under any circumstances.” KenAmerican Res., Inc., 38 FMSHRC 1943, 1947
(Aug. 2016) (quoting Campbell v. Hewitt, Coleman & Assocs., Inc., 21 F.3d 52, 55 (4th Cir.
1994)); but see Scott v. Harris, 550 U.S. 372, 380 (2007) (holding that there is no genuine issue
for trial unless a rational trier of fact could find for the nonmoving party).
Based on agreement of the parties to file cross-motions for summary decision and the
facts, as represented by the parties, I find that there is no genuine issue as to any material fact.
For the reasons set forth below, I conclude that the Secretary is entitled to summary decision as a
matter of law, AFFIRM the Citation, and assess a penalty of $5,903.00 against Hopkins Hill.
I.

Joint Stipulations

Stipulations of Fact:1
1. Hopkins Hill Sand and Stone (“the mine”) is an “operator” as defined in Section 3(d) of
the Mine Act, 30 U.S.C. § 802(d), at the crushed stone mining plant at which the Citation
at issue in this proceeding was issued.
2. The mine at issue is located at 190 New London Turnpike in West Greenwich, Rhode
Island.
3. The mine at issue is subject to the jurisdiction of the Mine Act.
4. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designated Administrative Law Judges, pursuant to sections
105 and 133 of the Mine Act, 30 U.S.C. §§ 815, 823.
5. The mine is an open-pit crushed stone plant.
6. On November 29, 2018, General Manager Bernard Alderson, aged 71, reported to work
at the mine site, made his rounds at the plant, left the mine site to get coffee for himself
and others, drove to Warrick, Rhode Island to meet with the owner, and returned to the

1

The Joint Stipulations have been numbered for clarity in this Decision.

41 FMSHRC Page 787

mine site at about 9:45 a.m. Mr. Alderson was in the office area between 9:45 a.m. and
11:00 a.m., not performing any physical duties.
7. At about 11:00 a.m., Mr. Alderson was observed to be lying on the ground face-down by
an employee of the Respondent, Kurt Wilcox. Mr. Wilcox, in turn, informed Steven
Sustakowsky (dispatcher) about Mr. Alderson’s situation, and Mr. Sustakowsky called
“911” and then summoned Renzo Marietti, an employee of the Respondent, by radio to
help Mr. Anderson. Mr. Sustakowsky called the main office at around 11:12 a.m.
8. Mr. Marietti moved Mr. Alderson to level ground and began chest compressions, which
were maintained until the West Greenwich Rescue EMS arrived.
9. The EMS put a heart monitor on Mr. Alderson, but it was flat-lining as Mr. Marietti
observed it.
10. At 11:24 a.m., EMS Paramedic Kelly Guastini called the death of Mr. Alderson.
11. At 11:25 a.m., Police Officer Michael P. Duggan arrived at the mine and began an
investigation. Officer Duggan in his report stated that when he observed Mr. Alderson,
his face was blue in color.
12. At 11:25 a.m., Barry Manfredi, the environmental health and safety director, received a
phone call from Steve Cardi II, Vice President and COO, notifying Mr. Manfredi of Mr.
Alderson’s heart attack.
13. At 12:56 p.m., Barry Manfredi called the MSHA Hot Line to report Mr. Alderson’s heart
attack.
14. At 1:20 p.m., the Medical Examiner took control of Mr. Alderson’s body.

15. Mr. Alderson’s death was a natural death and not accident-related.
II.

Factual Background

On November 29, 2018, Hopkins Hill’s general manager Bernard Alderson suffered a
fatal heart attack while working at the mine site, an open-pit crushed stone plant in West
Greenwich, Rhode Island. Jt. Stips. 1, 2, 5, 6, 10. At approximately 11:00 a.m., Kurt Wilcox
found Alderson lying face-down on the ground and informed the dispatcher, Steven
Sustakowsky, who called “911,” the main office around 11:12 a.m., and then requested help
from Hopkins Hill employee Renzo Marietti. Jt. Stip 7. Marietti arrived on the scene around
11:15 a.m. and moved Alderson onto the ground below the stairs, where he began chest
compressions until West Greenwich Rescue EMS arrived. Jt. Stip. 8; Ex. P–8. According to
Marietti, Alderson was already blue, cold, and unresponsive. Exs. P–7; P–8. At approximately
11:18 a.m., EMS arrived and placed a heart monitor on Alderson, which Marietti observed flatlining. Jt. Stip. 9; Ex. P–6 at 2. At 11:24 a.m., EMS Paramedic Kelly Guastini pronounced
Alderson dead. Jt. Stip. 10; Ex. P–7. At 11:25 a.m., Vice President Steve Cardi called Hopkins
Hill’s environmental health and safety director, Barry Manfredi. Jt. Stip. 12. Manfredi called
MSHA to report Alderson’s death at 12:56 p.m. Jt. Stip. 13; Ex. P–3.
On November 30, 2018, MSHA Inspector Jerry Anguiano was assigned to investigate the
death. Anguiano Aff. After inspecting the scene and interviewing witnesses, Anguiano issued

41 FMSHRC Page 788

the Citation at issue to Hopkins Hill for its failure to report Alderson’s death to MSHA within 15
minutes of the accident. Anguiano Aff.
III.

Findings of Fact and Conclusions of Law

Inspector Anguiano issued 104(a) Citation No. 9412696 on December 3, 2018, alleging a
violation of section 50.10(a) that was “unlikely” to cause an injury, and was due to Hopkins
Hill’s “low” negligence.2 The “Condition or Practice” is described as follows:
The Mine Operator failed to notify the Mine Safety & Health
Administration (MSHA) that General Manager – Bernard Alderson
had suffered a fatal heart attack, while working at the Hopkins Hill
Sand Stone mine site. On Thursday November 29, 2018, at
approximately 11:00 a.m. the Manager was discovered facing
down on the stairway and landing platform that leads to the inside
of the Lab building. The West Greenwich Rescue 2 EMS – Kelly
Guastini, called the time of death at 11:24 a.m. The Environmental
Health & Safety (EH&S) Director – Barry Manfredi was out of
town when the death occurred but, he received a cell phone call
from the Vice President of Operations – Steve Cardia at 11:27 a.m.
At 12:56 p.m. Mr. Manfredi dialed the 1-800 Hot Line, to notify
MSHA about the heart attack. MSHA initiated an investigation on
Friday November 30, 2018.
Ex. P–3. Anguiano terminated the Citation later in the afternoon of December 3, after reviewing
MSHA’s accident reporting requirements with environmental health and safety director
Manfredi, and Respondent established and posted a written plan highlighting the appropriate
actions to be taken under section 50.10(a). Ex. P–3.
A. Fact of Violation
Hopkins Hill argues that it is entitled to summary decision because Alderson’s fatal heart
attack was the result of a non-occupational illness from natural causes rather than any workrelated “accident” within the meaning of sections 50.10(a) and 50.2(h)(1) and, therefore, no
immediate reporting was required. Resp’t Mem. at 1-4. On the other hand, the Secretary takes
the position that he is entitled to summary decision because any death occurring at a mine is a
reportable accident under section 50.10(a). Sec’y Mem. at 3-4.

2

30 C.F.R. § 50.10(a) states that: “[t]he operator shall immediately contact MSHA at
once without delay and within 15 minutes . . . once the operator knows or should know that an
accident has occurred involving: [a] death of an individual at the mine.” (emphasis added).

41 FMSHRC Page 789

In relevant part, section 103(j) of the Mine Act provides:
[i]n the event of any accident occurring in any coal or other mine,
the operator shall notify the Secretary thereof . . . . For purposes of
the preceding sentence, the notification required shall be provided
by the operator within 15 minutes of the time at which the operator
realizes that the death of an individual at the mine . . . has
occurred.
30 U.S.C. § 813(j). Accordingly, section 3(k) of the Mine Act defines “accident” as “a mine
explosion, mine ignition, mine fire, or mine inundation, or injury to, or death of, any person.” 30
U.S.C. § 802(k) (emphasis added).
Section 50.10(a) of the Secretary’s regulations largely mirrors the mandate of the Mine
Act, requiring that the operator report an accident at a mine once it is known or should have been
known within 15 minutes. Included in the definitions of “accident” is “[a] death of an individual
at a mine.” 30 C.F.R. § 50.2(h)(1). Moreover, the Commission has emphasized that questions of
whether an operator should report an accident to MSHA “must be resolved in favor of
notification.” Signal Peak Energy, LLC, 37 FMSHRC 470, 476-77 (Mar. 2015).
Notably, the question of whether the requirement of section 50.10(a) applies to fatal heart
attacks at a mine site was decided in a remarkably similar case, finding a violation, which was
appealed to the Commission. See Richmond Sand & Stone, 41 FMSHRC 12 (Jan. 2019) (ALJ).
In its recent affirmation of the decision, the Commission found that:
[T]he plain language of MSHA’s reporting regulations at 30 C.F.R.
Part 50 unambiguously defines any on-site death as an “accident”
subject to the immediate reporting requirement in section 50.10(a).
Accordingly, [Respondent’s] failure to timely notify MSHA of a
fatal heart attack at the mine site violated the standard.
Richmond Sand & Stone, LLC, 41 FMSHRC 402, 407 (Aug. 2019); see also Consol
Pennsylvania Coal Co., LLC v. FMSHRC, 941 F.3d 95 (3d Cir. 2019) (emphasizing the clarity of
section 50.10 and the critical importance of reporting). As the Commission makes clear in
Richmond, by requiring reporting of all deaths at mine sites, the Secretary is fulfilling Part 50’s
purpose to “implement MSHA’s authority to investigate, and to obtain and utilize information
pertaining to, accidents, injuries, and illnesses occurring or originating in mines.” Richmond, 41
FMSHRC at 405; see also 30 C.F.R. § 50.1. The reporting scheme is critical to MSHA’s
investigations to ensure prospective safety at the mines. In the moment, a miner or the operator
may not be able to readily ascertain the cause of death and, therefore, failure to report could
expose more miners to unknown or unidentified hazards. See Signal Peak, 37 FMSHRC at 477
(citing Emergency Mine Evacuation, 71 Fed. Reg. 71430, 71431 (Dec. 8, 2006)). Immediate
reporting also allows MSHA to gather data that it can analyze in aggregate regarding the causes
of deaths at all mine sites to improve miner safety. See Richmond, 41 FMSHRC at 405-06. All
of this information is crucial for the Secretary to access, but it can only be used if it is timely

41 FMSHRC Page 790

gathered and preserved. Hence, the effectiveness of the reporting requirement in fulfilling the
objectives of the Mine Act depends upon compliance by mine operators.
Using nearly identical language and essentially the same arguments that were
unsuccessfully raised in Richmond, Hopkins Hill relies on Vulcan Construction Materials and
Hanson Aggregates Midwest to support its contention that there was no reportable accident.
Resp’t Mem. at 4-7. In these cases, judges found that nonfatal heart attacks were not injuries for
purposes of mandatory MSHA reporting under section 50.10(b).3 See Vulcan Constr. Materials,
35 FMSHRC 2868, 2874-75, 78 (Aug. 2013) (ALJ); Hanson Aggregates Midwest, 35 FMSHRC
2412, 2416 (Aug. 2013) (ALJ). Hopkins Hill’s reliance on Vulcan and Hanson is misplaced,
however, because these cases contemplate the reasonableness of injuries resulting in death,
rather than deaths occurring at mines, for whatever reasons, whether natural or accident related.
Likewise, Hopkins Hill’s contention that my decision in Nyrstar Gordonsville, LLC, 38
FMSHRC 1819 (July 2016) (ALJ), was wrongly decided has been invalidated by the Richmond
and Consol decisions. See Resp’t Mem. at 7.
Finally, Hopkins Hill argues that sections 50.10 and 50.2(h)(1) do not provide a usable
definition of “accident” because the sections presuppose a predicate accident, not defined by the
regulations, and the inclusion of natural death is overly broad. Resp’t Mem. at 3-4. Therefore,
according to Hopkins Hill, the word “accident” should be construed according to its ordinary
meaning.4 Resp’t Mem. at 4. This argument is also misguided, as “Part 50 unambiguously
defines any on-site death as an ‘accident’ subject to the immediate reporting requirement.”
Richmond, 41 FMSHRC at 407 (emphasis added).
It is undisputed that Alderson had been lying on the ground face-down and unresponsive
around 11:00 a.m. At 11:15 a.m., Marietti moved Alderson and began chest compressions. By
Marietti’s account, Alderson was blue, cold, and never responsive, and the heart monitor placed
by EMS was flat-lining. When EMS Paramedic Guastini pronounced Alderson dead at 11:24
a.m., Vice President Cardi proceeded to call environmental health and safety director Manfredi at
11:25 a.m. Based on these facts, I find that Hopkins Hill management knew or should have
known of Alderson’s death by 11:24 a.m. and, at that time, the 15-minute reporting interval
began to run.
Under these circumstances, having found that Hopkins Hill knew or should have known
that it had experienced a reportable accident at the mine by 11:24 a.m., it had a duty to notify
MSHA by 11:39 a.m. Hopkins Hill contacted MSHA at 12:56 p.m., one hour and 17 minutes
outside of the 15-minute window. Accordingly, I conclude that Hopkins Hill violated the
reporting requirement of section 50.10(a).
3

30 C.F.R. § 50.10(b) requires the operator to immediately contact MSHA within 15
minutes of “[a]n injury of an individual at the mine which has a reasonable potential to cause
death.” (emphasis added).
4

Hopkins Hill’s reliance on a dictionary definition of “accident” sidesteps the Mine Act’s
and regulations’ inclusion of “any death” in a mine within the ambit of the 15-minute reporting
requirement.

41 FMSHRC Page 791

B. Gravity and Negligence
Based on the clarity of the standard and regulatory definition of “accident,” and the
importance of timely notice to MSHA as explained in Commission precedent, Hopkins Hill’s
failure to report Alderson’s death was a significant breach of duty. The record establishes,
however, that Alderson’s death did not occur as a result of an ongoing hazard affecting miners’
safety, and I find that the delay in reporting the accident to MSHA had no likelihood of putting
other miners in peril.
The Secretary contends that Hopkins Hill’s negligence should be elevated to moderate
because environmental health and safety director Manfredi stated that he knew he needed to call
MSHA, but was unaware of the need to call within 15 minutes; therefore, managers who become
aware of a death at a mine should be prepared to adhere to the reporting requirements of section
50.10(a). Sec’y Mem. at 6.
There is a contradiction between Anguiano’s Affidavit, stating that Manfredi was aware
of the reporting requirement, but unaware of the 15-minute mandate, and Manfredi’s Affidavit,
indicating that he believed that only work-related accidents were reportable. See Anguiano Aff.
at 1-2; compare with Manfredi Aff. at 1. In fact, Manfredi claims that the report made to MSHA
was merely informational rather than the result of any perceived duty. Manfredi Aff. at 1.
Taking Manfredi at his word, Hopkins Hill management is responsible for knowing and adhering
to the reporting regulations that govern its operations and, because Alderson’s death was
reported to MSHA within an hour and a half of the mandated 15-minutes, I ascribe less than
ordinary negligence to the violation, consistent with the Citation, as originally issued.
IV.

Penalty

While the Secretary has proposed a civil penalty of $5,903.00, the judge must
independently determine the appropriate assessment by proper consideration of the six penalty
criteria set forth in section 110(i) of the Act, 30 U.S.C. § 820(i). See Sellersburg Co., 5
FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d 1147 (7th Cir. 1984). Notwithstanding
application of Sellersburg criteria, however, the Mine Act imposes a minimum penalty of
$5,903.00 for section 50.10 violations. 5 30 C.F.R. § 110(a)(2). The Commission has found that
its judges are bound by the statutory minimums imposed by the Mine Act. Consol Pennsylvania
5

Section 110(a)(2) of the Mine Act states that an operator “who fails to provide timely
notification to the Secretary as required under 103(j) of [the Mine Act] (relating to the 15-minute
requirement) shall be assessed a civil penalty by the Secretary of not less than $5,000 and not
more than $60,000.” 30 U.S.C. § 820(a)(2). Similarly, section 100.4(c) of the Secretary’s
penalty regulations states that the penalty for failure to provide timely notification to MSHA
“will not be less than $5,000 and not more than $65,000 for the following accidents: (1) the
death of an individual at the mine.” 30 C.F.R. § 100.4(c). In January 2018, the minimum
penalty was increased to $5,903 and the maximum penalty was increased to $70,834 to account
for inflation. 30 C.F.R. § 100.4(c); see also Department of Labor Federal Civil Penalties
Inflation Adjustment Act Annual Adjustments for 2018, 83 Fed. Reg. 7, 15 (Jan. 2018).

41 FMSHRC Page 792

Coal Co., LLC, 40 FMSHRC 998, 1008 (Aug. 2018), aff’d, 941 F.3d 95 (3d Cir. 2019)
(reemphasizing that the statutory minimums imposed by 30 U.S.C. § 820(a)(4) for reviewing
courts must also apply to the Commission). Therefore, in light of Consol, Respondent’s reliance
on E.S. Stone & Structure is misplaced. Resp’t Supp. Mem.; see E.S. Stone & Structure, 33
FMSHRC 515 (Jan. 2011) (ALJ).
Applying the penalty criteria, and based upon a review of MSHA’s online records, I find
that Hopkins Hill is a small operator, with no prior violations of section 50.10(a), and an overall
violation history that is not an aggravating factor in assessing an appropriate penalty. There was
no evidence proffered that the civil penalty proposed by the Secretary will affect Hopkins Hill’s
ability to continue in business. I also find that Hopkins Hill demonstrated good faith in
achieving rapid compliance after notification of the violation. The remaining criteria involve
consideration of the gravity of the violation and Hopkins Hill’s negligence in committing it. I
have found that this was a very serious violation, and that Hopkins Hill demonstrated low
negligence in committing it. Therefore, I find that a penalty of $5,903.00, the statutory
minimum, is appropriate.
ORDER
ACCORDINGLY, the Secretary’s Cross-Motion for Summary Decision is GRANTED,
Respondent’s Motion for Summary Decision is DENIED, and it is ORDERED that Hopkins
Hill Sand & Stone, LLC, PAY a civil penalty of $5,903.00 within 30 days of the date of this
Decision.6

/s/ Jacqueline R. Bulluck
Jacqueline R. Bulluck
Administrative Law Judge

Distribution:
James Polianites, Office of the Regional Solicitor, U.S. Department of Labor, Government
Center, JFK Federal Building, Room E-375, Boston, MA 02203
Girard R. Visconti, Shechtman Halperin Savage, LLP, 1080 Main Street, Pawtucket, RI 02860
/adm
6

Payment should be sent to: Mine Safety and Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please include docket
number and AC number.

41 FMSHRC Page 793

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

December 23, 2019
PETE TARTAGLIA, JR.,
Petitioner,

DISCRIMINATION PROCEEDING
Docket No. WEST 2018-0362-DM
MSHA Case No. RM-MD-18-07

v.
FREEPORT-MCMORAN BAGDAD,
INC.,
Respondent.

Mine: Freeport-McMoran Bagdad Inc.
Mine ID: 02-00137

DECISION AND ORDER
ORDER GRANTING MOTION TO UPHOLD FINAL DECISION APPROVING
SETTLEMENT
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SANCTIONS
Before: Judge Simonton
This case is before me pursuant to section 105(c)(3) of the Federal Mine Safety and
Health Act of 1977, (“Mine Act”), 30 U.S.C. § 815(c)(3) and the Commission’s Order dated
November 7, 2019. Pete Tartaglia, Jr. (“Tartaglia” or “Complainant”) brought this case against
Freeport-McMoran Bagdad Inc. (“Freeport” or “Respondent”), alleging that the company
violated the Mine Act when it terminated him. This case has settled, and the Commission has
now remanded the matter to me to determine whether relief from the final order is warranted and
whether sanctions against any party are appropriate.
I. BACKGROUND
In late April 2018, Tartaglia filed a complaint of discrimination on his own behalf with
this Commission. The case was assigned to me on June 6, 2018. A hearing was held September
19–20, 2018 in Phoenix, Arizona. On those two days, the hearing was periodically paused and
resumed in order to facilitate intermittent discussions of settlement. Ultimately, the parties
reached a settlement and read the terms of the agreement into the record. The parties agreed to
confidentiality as to its terms.
In the months following the hearing, after Freeport produced a written version of the
settlement, the court held a number of conference calls with the parties to address concerns
Tartaglia had with the details and language of the written version. Several revisions were made
to the written document and Tartaglia ultimately signed the agreement, as did the Respondent.
Before the written agreement was entered into the record in this case, however, Tartaglia
allegedly encountered other conflicts at the mine and determined that he no longer wished to and
was no longer required to adhere to the terms of that agreement. Respondent ultimately did not
submit the executed written version of the agreement for entrance into the record.

41 FMSHRC Page 794

On January 14, 2019, this court issued an order which gave Tartaglia ten days to either
provide the court with proof that he had complied with the settlement terms reached at the time
of the hearing, or to notify the court and Freeport that he wished to submit a post-hearing brief
and pursue a decision on the merits. Tartaglia failed to elect either option within the time
provided.
On January 25, 2019, Freeport submitted a motion to enforce the settlement agreement
reached at the hearing as stated on the record and to file that portion of the hearing transcript
under seal. Respondent’s Motion to Enforce Settlement Agreement and Motion to File Hearing
Transcript Under Seal, at 2–3. Freeport contended that under Arizona state law, Freeport’s offer
and consideration and Tartaglia’s recognition and assent to the settlement terms on the record
rendered the agreement enforceable. Id. at 3. Freeport argued that the court should therefore
approve the settlement agreement and enforce its terms as stated in the record. Id.
The court acknowledged receipt of Freeport’s motion and allowed Tartaglia to respond as
to why the settlement should not be approved and this case dismissed. On February 1, 2019,
Tartaglia filed a brief response which reiterated that he would not comply with the settlement
terms. Tartaglia cited alleged “fraudulent criminal activity” that occurred after the agreement
was reached on the record. Complainant’s Response to Order of Acknowledgement, at 2. He
asserted that Freeport was taking money out of his pay in order to satisfy the terms of the
settlement agreement. Id. at 1. These allegations were vague and were not substantiated by any
evidence. More importantly, they did not relate to Tartaglia’s initial Section 105(c)(3) complaint
or to the specific terms of the settlement agreement.
On February 11, 2019, this court issued a Decision Approving Settlement Under Seal and
Order Enforcing Settlement Agreement. In that decision and order, I found that the agreement
entered into on the record during the hearing on September 20, 2018 was valid and enforceable.
Tartaglia had put forth no evidence that Freeport misrepresented or failed to comply with its
responsibilities under the settlement agreement. Instead, Tartaglia had consistently refused to
comply with the terms of the agreement, that he had agreed to at the hearing. Having received no
valid legal justification to set aside the settlement agreement and no request from Tartaglia
stating he wished to pursue a decision on the merits, I granted Freeport’s motion to enforce the
settlement agreement.
The February 11, 2019 decision and order concluded my jurisdiction over this case. 29
C.F.R. § 2700.69(b). Tartaglia then had 30 days to file a petition for discretionary review of the
decision with the Commission. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). He did not
file a petition within that time frame.
On March 14, 2019, one day after the 30-day window for filing a petition for
discretionary review had passed, the Commission received a letter from Tartaglia (“March
Letter”). At that time, the Commission was still within the 40-day window in which it could
direct review of my initial decision in this matter. 30 U.S.C. § 823(d)(1). However, the
Commission did not direct review of the decision and it became final on March 25, 2019.

41 FMSHRC Page 795

Tartaglia’s March Letter remained unaddressed by the Commission for several months.
Furthermore, according to Freeport, Tartaglia never served the Respondent with a copy of the
letter. This court’s review confirms that Tartaglia never provided the Commission with
confirmation that he served the Respondent with the letter. Both Freeport and this court remained
unaware that the letter existed until September 9, 2019, when Tartaglia referenced the document
during a conference call between the parties and the court concerning a separate case brought by
Tartaglia against Freeport. After the call, the court located the letter, sent a copy to Freeport, and
inquired with the Commission as to the status of the document.
On October 9, 2019, Freeport filed a Motion for Clarification with the Commission,
seeking confirmation that the court’s February 11, 2019 decision and order was considered final.
Tartaglia’s response was received by the Commission on October 16, 2019. On October 22,
2019, before the Commission had taken action on the Motion for Clarification, Freeport filed an
Amended Motion for Sanctions against Tartaglia, claiming that Tartaglia’s response to the
motion contained “false, threatening, and slanderous accusations” in violation of Commission
Procedural Rule 80. Respondent’s Amended Motion for Sanctions, at 2–3.
On November 7, 2019, the Commission issued an order confirming that my decision and
order was final, but remanding the case to me nonetheless. The Commission explained that, in
the March Letter, Tartaglia was “essentially requesting review of [my] decision approving the
settlement in the discrimination proceeding.” Tartaglia v. Freeport-McMoRan Bagdad Inc., 41
FMSHRC ___, slip op., at 1, No. 2019-362-DM (Nov. 7, 2019). The case was remanded for me
to determine whether relief from the final order is warranted, and whether sanctions against any
party are appropriate.
On November 25, 2019, Freeport filed with the court a Motion to Uphold Final Decision
Approving Settlement Under Seal and Order Enforcing Settlement Agreement in Docket No.
WEST 2018-362-DM and to Impose Sanctions (“Freeport’s November Motion”). The motion
conveys Freeport’s opinion that the settlement should be upheld and enforced and reiterates its
request for sanctions against Tartaglia. Freeport’s November Motion, at 6–8. After Freeport
submitted this motion, I issued an Acknowledgement of Receipt informing Tartaglia that he had
an opportunity to respond. He submitted a response on December 16, 2019, which essentially
repeats previous nonspecific allegations of fraud and requests review of the record in this case.
II.

DISPOSITION

A. The March Letter
In now reviewing the March Letter and all other filings in this matter, I find that relief is
not appropriate for several reasons. First, if Tartaglia’s March Letter is to be treated as a petition
for review, it is a defective filing. It was late and was not served upon the Respondent.
Commission Procedural Rule 70(a) allows parties 30 days to file a petition for discretionary
review with the Commission, which is effective upon receipt. 29 C.F.R. § 2700.70(a). Tartaglia’s
March Letter was received after this deadline had passed. Additionally, Rule 7(a) requires that
“[a] copy of each document filed with the Commission shall be served on all parties.” Id. §
2700.7. Rule 7(e) mandates that “[a]ll pleadings and other filed documents shall be accompanied

41 FMSHRC Page 796

by a statement setting forth the date and manner of service.” The March Letter was not served to
Freeport, and did not contain a statement asserting the date and manner of service. Even if
Tartaglia was unaware of the requirements of Rule 7, the notice accompanying the Decision
Approving Settlement Under Seal and Order Enforcing Settlement Agreement should have
adequately alerted him to the need to serve filings on Respondent. The Commission has
interpreted the March Letter essentially as a petition for review. The notice states plainly that
“[a] Petition for Review must be served on the opposing party.”
The Commission holds the pleadings of pro se litigants to less stringent standards than
pleadings submitted by attorneys. Martin v. Asarco, Inc., 14 FMSHRC 1269, 1273 (Aug. 1992)
(citations omitted). However, pro se litigants are not exempt from following the agency’s
procedural rules. The Commission has denied requests for relief from final Commission
decisions where pro se litigants have submitted untimely requests without satisfactory
explanations for why the requests were late. See Cusic Trucking, Inc., 21 FMSHRC 701, 702–03
(July 1996); see also Dykhoff v. U.S. Borax Inc., 21 FMSHRC 976, 977-78 (Sept. 1999). Here,
Tartaglia provided no explanation for his late submission. Treating the letter as a request for
relief, this deficiency coupled with his critical failure to serve the letter on Freeport warrant a
finding that relief from the Decision Approving Settlement Under Seal and Enforcing Settlement
Agreement is not appropriate.
Second, prior to issuing the February 11, 2019 decision, and after multiple conference
calls to address Tartaglia’s issues with the written agreement, I gave Tartaglia a choice. He had
an opportunity to either comply with the terms of the agreement or to request that the parties be
permitted to submit post-hearing briefs and seek a decision from this court on the merits of the
case. Tartaglia failed to avail himself of either option. After Freeport submitted its Motion to
Enforce Settlement Agreement, I gave Tartaglia yet another opportunity to address why the
settlement agreement should not be enforced. Though he submitted a timely response, he failed
to address why the settlement agreement should not be enforced. As discussed above, his
allegation that money was being taken from his check to pay the settlement was not relevant to
his initial discrimination complaint or to whether the agreement reached orally at hearing was
enforceable and valid. In his multiple opportunities to speak up before the decision was issued,
Tartaglia did not once claim that the agreement reached at hearing was invalid. On the contrary,
his own references to the settlement support the contention that Tartaglia understood the
agreement to be both valid and enforceable.
Third, even if it had been filed on time and properly served on Respondent, I do not
consider Tartaglia’s March Letter to be an adequate request for relief of the decision approving
settlement. The document consists of one handwritten page dated March 11, 2019, one undated
typed page, copies of Tartaglia’s prior submissions, various copies of employment reports and
letters, and tax records. A close reading of the submission reveals that Tartaglia does not
specifically request a review of the settlement agreement reached at hearing. The March Letter

41 FMSHRC Page 797

does allege fraudulent activity,1 but the claims do not relate to Tartaglia’s initial complaint of
discrimination or to any supposed invalidity of the settlement agreement. Instead, the purpose of
the March Letter appears to be to notify the Commission that Tartaglia had ordered a portion of
the hearing transcript containing one witness’s testimony and to complain about said testimony.
He notes new, unspecified retaliatory activity and brings up an overpayment issue that was
discussed at hearing but that was not material to the settlement reached by the parties. Even
under a generous interpretation, this filing does not request review of the court’s decision
approving settlement.
Fourth is Tartaglia’s currently pending discrimination case against Freeport. Assigned to
this court, Docket No. WEST 2019-0382-DM concerns substantially the same issues as those
addressed by Tartaglia in the March Letter. As noted by the Commission in its order remanding
this case to me, the March Letter and Freeport’s motion for clarification “raise issues that are not
directly or fully addressed in the current record.” Tartaglia, 41 FMSHRC ___, slip op., at 2. This
is an accurate assessment. These issues are, however, being addressed in Tartaglia’s currently
pending 2019 case against Freeport. In his one-page complaint in that case, Tartaglia alleges
fraudulent activity concerning a supposed double-payment of an arbitration award and accuses
Freeport of breaching the settlement agreement. The overpayment issue and any concerns
regarding a possible breach of the valid settlement agreement will be heard by this court at a
hearing currently scheduled for WEST 2019-0382-DM on January 15, 2019. Accordingly, for
this reason and the others noted above, I find it appropriate once again to affirm the validity and
enforceability of the settlement agreement the parties have entered into and dismiss this docket.
B. Freeport’s Motion for Sanctions
On October 22, 2019, Freeport filed an Amended Motion for Sanctions with the
Commission. In its order remanding this case, the Commission directed this court to determine if
sanctions are appropriate in this matter. Freeport alleges that Tartaglia’s response to Freeport’s
motion for clarification contained false, threatening, and slanderous accusations and threats in
violation of Commission Procedural Rule 80, 29 C.F.R. § 2700.80(a). Respondent’s Amended
Motion for Sanctions, at 2–3. Through its motion, Freeport seeks an order of dismissal, “and/or
1

The March Letter contains allegations that Respondent’s counsel and Respondent “have
there [sic] own agenda but its not according to the law, its Flagrant Fraudulent Activity at will to
[sic] the level of criminal activity .” March Letter, at 2. It further alleges that Respondent’s
witness lied on the stand at hearing. Id. at 1. The decision I issued in this matter solely approved
the parties’ settlement agreement reached orally at the hearing held in this matter. Because I did
not issue a decision on the merits of this case, no testimony or other evidence presented at
hearing factored into the final disposition of this case. Accordingly, these allegations are
immaterial to the issue before me—the settlement. Though I may refer disciplinary concerns to
the Commission in the form of a referral pursuant to Procedural Rule 80(c), I choose not to do so
in this case because I do not have actual knowledge of circumstances which warrant disciplinary
proceedings. To the extent that Tartaglia wished to make a disciplinary referral to the
Commission either in the March Letter or in subsequent filings, he has not done so under the
procedure set forth in the rules. If he wishes to now make such a referral, he must follow the
procedure outlined in Rule 80(c). The entirety of Rule 80 is attached as Appendix A.

41 FMSHRC Page 798

other appropriate disciplinary action, including monetary sanctions, against Tartaglia for
engaging in unprofessional conduct and failing to follow Commission Rules in failing to serve
his prior pleading before the Commission on [Freeport’s] counsel,” and also seeks an order
“barring Tartaglia from appearing before the Commission or Commission Judges.” Id. at 4.
At this time, I find that dismissal based on Tartaglia’s allegations and unprofessional
conduct unnecessary.2 Additionally, I will not impose monetary sanctions on Mr. Tartaglia or
prohibit him from appearing before me. However, I grant Freeport’s request, in part, for “other
appropriate disciplinary action” by issuing Tartaglia a warning about his actions and behavior
before this court. Tartaglia’s response to Respondent’s Motion for Clarification contained
inappropriate, unsubstantiated accusations. These have no place in the filings before this court or
the Commission. Tartaglia is hereby instructed to treat counsel for Freeport with an appropriate
level of respect and professionalism in all future matters before this court. Personal attacks by
either party toward each other will not be tolerated in future conference calls between the court
and the parties, in filings, or at the hearing scheduled for Docket No. WEST 2019-0382-DM.
Tartaglia is also hereby placed on notice that the Federal Mine Safety and Health Review
Commission does not refer cases for criminal prosecution. Tartaglia’s requests to this effect,
such as his most recent demand that counsel for Freeport be placed on “the list to be Prosecuted
[sic] to the fullest” are inappropriate and unwarranted. Complainant’s Response to Respondent’s
Motion for Clarification, at 1.
I find it necessary to reiterate here that I am not making any rulings on the issue of breach
of the settlement agreement in this decision. To whatever extent the parties still have yet to
comply with the terms of that agreement, they should effectuate compliance now. Issues
pertaining to any potential breach by either party may be addressed at the hearing scheduled in
WEST 2019-0382-DM.
III. ORDER
As detailed above, Respondent’s Motion for Sanctions against Complainant is
GRANTED IN PART AND DENIED IN PART. For the aforementioned reasons, I find that
relief from the final decision issued in this matter is unwarranted. Freeport’s Motion to Uphold
Final Decision Approving Settlement is GRANTED. Freeport and Tartaglia are ORDERED to
comply with the terms of the settlement agreement entered into on the record at hearing.
Accordingly, this case is DISMISSED.

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge
2

This case is being dismissed based on my finding that relief from the Decision
Approving Settlement Under Seal and Order Enforcing Settlement Agreement is not warranted.
See supra Part II.A. If Respondent wishes to pursue a disciplinary proceeding against Tartaglia,
it may do so under the procedure provided by Rule 80(c). Rule 80 is attached as Appendix A.

41 FMSHRC Page 799

Distribution: (U.S. First Class Mail and e-mail)
Pete Tartaglia, Jr., 8340 N. Thornydale Road, #209 Suite 110, Tucson, AZ 85741
Laura E. Beverage, Karl F. Kumli, Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver,
CO 80202

41 FMSHRC Page 800

APPENDIX A
§ 2700.80 Standards of conduct; disciplinary proceedings.
(a) Standards of conduct. Individuals practicing before the Commission or before Commission
Judges shall conform to the standards of ethical conduct required of practitioners in the courts of
the United States.
(b) Grounds. Disciplinary proceedings may be instituted against anyone who is practicing or has
practiced before the Commission on grounds that such person has engaged in unethical or
unprofessional conduct; has failed to comply with these rules or an order of the Commission or
its Judges; has been disbarred or suspended by a court or administrative agency; or has been
disciplined by a Judge under paragraph (e) of this section.
(c) Disciplinary proceedings shall be subject to the following procedure:
(1) Disciplinary referral. Except as provided in paragraph (e) of this section, a Judge or
other person having knowledge of circumstances that may warrant disciplinary
proceedings against an individual who is practicing or has practiced before the
Commission shall forward to the Commission for action such information in the form of
a written disciplinary referral. Whenever the Commission receives a disciplinary referral,
the matter shall be assigned a docket number.
(2) Inquiry by the Commission. The Commission shall conduct an inquiry concerning a
disciplinary referral and shall determine whether disciplinary proceedings are warranted.
The Commission may require persons to submit affidavits setting forth their knowledge
of relevant circumstances. If the Commission determines that disciplinary proceedings
are not warranted, it shall issue an order terminating the referral.
(3) Transmittal and hearing. Whenever, as a result of its inquiry, the Commission, by a
majority vote of the full Commission or a majority vote of a duly constituted panel of the
Commission, determines that the circumstances warrant a hearing, the Commission's
Chief Administrative Law Judge shall assign the matter to a Judge, other than the
referring Judge, for hearing and decision. The Commission shall specify the disciplinary
issues to be resolved through hearing and may designate counsel to prosecute the matter
before the Judge. The Judge shall provide the opportunity for reply and hearing on the
specific disciplinary matters at issue. The individual shall have the opportunity to present
evidence and cross-examine witnesses. The Judge's decision shall include findings of fact
and conclusions of law and either an order dismissing the proceedings or an appropriate
disciplinary order, which may include reprimand, suspension, or disbarment from
practice before the Commission.
(d) Appeal from Judge's decision. Any person adversely affected or aggrieved by the Judge's
decision is entitled to review by the Commission. A person seeking such review shall file a
notice of appeal with the Commission within 30 days after the issuance of the Judge's decision.

41 FMSHRC Page 801

(e) Misconduct before a Judge. A Judge may order the removal of any person, including a
representative of a party, who engages in disruptive conduct in the Judge's presence. If a
representative is ordered removed, the Judge shall allow the party represented by the person a
reasonable time to engage another representative. In all instances of removal of a person for
disruptive conduct, the Judge shall place in the record a written statement on the matter. A party
aggrieved by a Judge's order of removal may appeal by requesting interlocutory review pursuant
to § 2700.76 or, alternatively, may assign the Judge's ruling as error in a petition for
discretionary review.
29 C.F.R. § 2700.80.

41 FMSHRC Page 802

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

December 30, 2019
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 2019-8
A.C. No. 36-07416-474254

v.
CONSOL PENNSYLVANIA COAL CO.,
LLC,
Respondent.

Mine: Enlow Fork Mine

DECISION AND ORDER
Appearances:

Brian P. Krier, Esq., Office of the Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for the Secretary of Labor
Patrick Dennison, Esq., Fisher & Phillips, Pittsburgh, Pennsylvania, for
the Respondent

Before:
I.

Judge Lewis
STATEMENT OF THE CASE

This case arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (the “Act” or “Mine Act”). A hearing was held in Pittsburgh, Pennsylvania wherein the
parties presented testimony and documentary evidence.
At hearing the parties indicated that they had reached a partial settlement regarding 16 of
the citations associated with the within docket. (see also Petitioner’s brief outlining partial
settlement). On August 29, 2019, this Court issued a decision approving this partial settlement.
The remaining Citation Nos. 9079297 and 9077387 were litigated at hearing. The parties
have submitted post hearing briefs and reply briefs which have been fully considered in reaching
the within decision.
FINDINGS OF FACT AND CONCLUSION OF LAW
The findings of fact are based on the record as a whole and the undersigned’s careful
observation of the witnesses during their testimony. In resolving any conflicts in the testimony,
the undersigned has taken into consideration the interests of the witnesses, or lack thereof, and
consistencies, or inconsistencies, in each witness’s testimony and between the testimonies of the

41 FMSHRC Page 803

witnesses. In evaluating the testimony of each witness, the undersigned has also relied on his
demeanor. Any failure to provide detail as to each witness’s testimony is not to be deemed a
failure on the undersigned’s part to have fully considered it. The fact that some evidence is not
discussed does not indicate that it was not considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th
Cir. 2000) (administrative law judge is not required to discuss all evidence and failure to cite
specific evidence does not mean it was not considered).
II.

JOINT STIPULATIONS
The parties’ joint stipulations are contained in Joint Exhibit 1 and read as follows:
1.
The Respondent was an “operator” as defined in § 3(d) of the
Federal Mine Safety and Health Act of 1977, as amended (hereinafter “the Mine
Act”), 30 U.S.C § 802(d), at the mine at which the Citation(s)/Order(s) at issue in
this proceeding were issued.
2.
Enlow Fork Mine is a “mine’ as defined in § 3(h) of the Mine Act,
30 U.S.C. § 802(h).
3.
Operations of the Respondent at the mine at which the Citations
were issued are subject to the jurisdiction of the Mine Act.
4.
This proceeding is subject to the jurisdiction of the Federal Mine
Safety and Health Review Commission and its designated Administrative Law
Judges pursuant to Sections 105 and 113 of the Mine Act.
5.

Enlow Fork Mine is owned by the Respondent.

6.
Payment of the total proposed penalty of $2,850.00 for the two
remaining citations in this matter will not affect the Respondent’s ability to
continue in business.
7.
The individual whose name appears in Block 22 of the Citations in
contest was acting in an official capacity and as an authorized representative of
the Secretary of Labor when the Citations were issued.
8.
The Citations contained in Docket No. Penn 2019-0008 were
issued and served by a duly authorized representative of the Secretary of Labor
upon an agent of Respondent at the date, time and place stated in the Citations, as
required by the Act.

41 FMSHRC Page 804

9.
Exhibit “A” attached to the Secretary’s Petition in Docket No.
PENN 2019-8 contains authentic copies of Citation Nos. 9077387 and 9079297
with all modifications or abatements, if any.
J-1.1
III.

CITATION NO. 9077387
SUMMARY OF TESTIMONY

At hearing Walter Young appeared and testified on behalf of the Secretary.2 On August 8,
2018, Young had written a violation for a branch line that was not connected to a refuge chamber
(T. 19). Consol Safety Inspector Matthew Roebuck was escorting Young.3 Roebuck and Young
walked up the No. 2 entry through the crosscut at 44 wall, toward the No. 1 entry. (T. 98). While
investigating the branch line, Young noticed another hazard at number 44 crosscut where the
1

References to the transcript of the hearing in this matter are designated “T.” followed by
the page number. References to joint exhibits are designated as “J” followed by the number.
References to the Secretary of Labor’s exhibits are designated as “GX.” References to
Respondent’s exhibits are designated “R.” References to the Secretary’s Post-Hearing Brief are
designated “SB” followed by the number. References to the Secretary’s Reply Brief are
designated “SRB” followed by the number. References to the Respondent’s Post-Hearing Brief
are designated “RB” followed by the number. References to Respondent’s Reply Brief are
designated “RRB” followed by the number.
2

He had been working for MSHA for approximately 14 years. (T. 16). At the time of
hearing, he was currently working as a mine safety specialist/ventilation and had worked for a
few months as a field office supervisor. (T. 17). He had nearly 36 years of experience in
underground mining. (T. 17). Previously, he had worked as a mine foreman, weekly examiner, a
fire boss, section foreman on both longwall and development, field and shift foreman, and field
and construction foreman. (T. 17).
Young had worked at Enlow Fork for 15 years. (T. 18). He had West Virginia miner’s
papers, Pennsylvania miner’s papers, Pennsylvania mine foreman certificate, federal electrical
cards, and federal dust certification. (T. 18). He had previously conducted 44 quarterly E01
inspections at Enlow Fork over the span of approximately 11 years. (T. 18).
3

Matthew Roebuck appeared and testified on behalf of Respondent. He had worked for
Consol for approximately eight years, his jobs including industrial trainee, foreman trainee, and
safety inspector. (T. 91). In August 2018 he was working as a safety inspector. (T. 91). This
position involved escorting MSHA and state mine inspectors approximately four to five days per
week. (T. 93).
Roebuck had taken written notes regarding Young’s inspection which he had transcribed
on his computer approximately five to seven days after receiving the citation. (T. 95; see also RA).

41 FMSHRC Page 805

mine roof and part of the rib were not being adequately supported. (T. 20; GX-16). The lower
half of the right outby corner was undercut—likely as a result of mobile equipment going around
it—and had the rib torn away, creating an overhang or brow. (T. 21). Young cited a violation of
section 75.202(a), which requires that roof, face, and ribs of areas where persons work or travel
be supported or otherwise controlled. (T. 21). The brow measured 28 inches in length, 32 ½
inches in height, and 30 inches at base.4 (T. 22). The overhang’s weight was calculated to be
about 621 pounds. (T. 22).
The average ceiling height at Enlow Fork Mine was roughly 8 feet, which means that a
miner could have walked underneath the cited condition. (T. 23). If the full weight of the
overhang had fallen on a miner, the resulting injury would have been fatal.5 (T 24). Young
observed the brow being scaled down by Roebuck. (T. 116). Once the point of the bar was stuck
into the fine crack at the roof and got a foothold, he testified that it took “hardly nothing to pull it
down.”6 (T. 25). The crack at the roofline into which the scaling bar was placed was a hairline
crack and not a gaping 3 to 4 inch gap. (T. 66). If there were a large gap in the crack, the
overhang would have been on the ground. (T. 66). Young testified that except for the overhang,
which should have had a post or crib placed under it, the roof and ribs in the cited area were in
“decent” condition. (T. 74).
Young described “a lot of” foot traffic going through the cited area. (T. 25). The easiest
way to get materials to the working section was through the open crosscut. (TT.26-27, 32).
Additionally, the examiner and contractors would travel through the area. (T. 27). People might
also travel through the area to avoid mud in the track entry. (T. 27). Miners would travel or work
in the area multiple times a shift. (T. 28). Additionally, there would be multiple examinations in
the area, including a required exam every 8 hours. (T. 28). Further, the lifeline to the primary
escapeway ran through the area and under the overhang.7 (T. 30). Roebuck testified that men on
foot would have been in the cited area when they were assisting the can setter. (T. 120). A preshift examiner, depending upon his route of travel, would need to come up through the primary
4

Young had used a tape measure in taking the rib’s measurements and stood
approximately six feet—2.3 feet plus his arm’s length—from the corner. (T. 55). Young was not
permitted to pull down the overhang himself due to workers’ compensation considerations. (T.
86).
5

On cross-examination, Young agreed that there could be circumstances where a roof fall
could occur without a violation of section 75.202(a). (T. 42).
6

Roebuck testified that the process involved six to ten minutes of pulling down the piece
which was in a “semi-higher spot.” (T. 117). He stated that Young stood back 6 to 6 ½ feet from
the area. (T. 117). Roebuck did not remember Mr. Young standing and taking measurements. (T.
117).
7

Young had used poor wording in his notes when he stated that the lifeline was rerouted
to the center of the entry as a result of pulling down the corner. (T. 67). The rerouting was
actually to the crosscut. (T. 67).

41 FMSHRC Page 806

escapeway and cited area to examine where cans were being set, the crosscut, the roof/rib
conditions. (T. 122).
It appeared that some type of mobile equipment—likely the scoop hauling materials to
the face—had damaged the corner while making the turn. (T. 28). Multiple trips had knocked off
multiple pieces of the corner creating the overhang. (T. 28). On the date he issued his citation,
Young did not personally observe a scoop travel in the cited area or undercut the rib at issue. (T.
51). He had not interviewed any scoop operators as to whether they had undercut the cited
corner. (T. 52). Similarly, Roebuck had not spoken with any scoop operators regarding the
citation. (T. 111). Roebuck had observed cracks in the corner cited by Young, but stated that the
roof conditions were “fairly good.” (T. 112, 114). However, based upon Young’s 36 years of
experience and the facts that no other ribs were blown off or deteriorated “that bad,” and that
there were scoop tracks up through the entries, he concluded that a piece of equipment had
undercut the corner. (TT. 52-53).
The citation had been evaluated as “low negligence” because—although Young had
suspected that the condition had “probably” lasted more than one shift—he could not prove it.
(T. 32). Young has past experience with such hazards. He had seen in the past where corners
could pop or start to deteriorate quickly. (T. 32). There was therefore “a reasonable chance” that
the condition had only become existent since the last pre-shift was conducted. (T. 32). Young
conceded that the unsafe condition could have occurred after the last pre-shift examination—
which would have been conducted between 5:00 am and 8:00 am that morning. (T. 71-72). He
further agreed that management’s lack of knowledge regarding an unsafe condition would lessen
the degree of negligence. (T. 73). He did not encounter anyone during his inspection who knew
of the cited condition. (T. 76). In finding low negligence, Young opined that the operator should
have known of the violative condition. Further, in terminating the condition, the operator had no
question of what brow was being referenced in the citation or when they moved the lifeline. (T.
78).
The violation was listed as affecting one person because it was deemed unlikely that, in
the event of a rib fall, more than one person at a time would be injured. (T. 33). Any injury could
reasonably be expected to result in lost workdays. (T. 33). Young had witnessed roof falls in the
past. In one instance he observed the upper part of a rib fall off, resulting in a chunk
approximately the size of a softball striking a miner’s foot and fracturing his metatarsal bones.
(TT 33-34).
Given the size and the weight of the brow at issue here, the types of injury could range
from a “fatality to a concussion, to broken bones, to contusions, lacerations, evulsions,
concussions.” (T. 34). In assessing the likelihood of injury as being “reasonably likely” rather
than “highly likely,” Young described himself as being “pretty kind” to Respondent in that a
falling 641 pound piece or quarter of such could easily cause more than broken bones. (T. 77).
Young, in his notes, had written that the lifeline for the primary escapeway had been
installed directly under the corner. (T. 56; GX-16). Roebuck disagreed with Young’s contention
that the lifeline for the primary escapeway was located directly underneath the cited corner. (T.
98). He explained that the line was a branch line. (T. 98). Between Enlow Fork’s secondary

41 FMSHRC Page 807

escapeway, which was in the No. 2 entry, and the primary escapeway, which was in No. 1 entry,
Consol had a branch line on the long wall face going from the secondary to primary. (T. 98-99).
Roebuck asserted that Consol had been forced to install such and that it was confusing to miners.
(T. 99-101). On August 21, 2018, the branch line was yellow with red fiber nylon rope. (T. 106).
It had no cones or reflectors. (T. 106). It only had the spiral, which was directly where the
secondary escapeway lifeline met the branch line. (T. 106). Going to the left of a can, it was
connected to the primary escapeway lifeline. (T. 106). If an issue arose necessitating the use of
an escapeway, Roebuck would travel outby, taking the easiest route, the No. 2 entry. (T. 106).
However Young explained that it was not a “branch line” because under the law “branch
lines” only go to de-refuge chambers and SCSR caches. (T. 56). However, Consol trains its
people to follow the branch to the lifeline in the primary escapeway. In the event of an
emergency, Consol had also trained people to use the No. 2 entry to get to the track. (T. 57).
However, if there were smoke coming up the track, the No. 2 entry would not be used. (T. 57).
Young stated that the lifeline for the primary escapeway, which was located in the No. 1 entry,
was not located directly underneath the corner, stating thusly: “That is true. The branch line that
connects the two escapeway lifelines would run underneath it, yes sir.” (T. 57).
Roebuck testified that cans were located in the No. 1 entry as a permanent floor to roof
support to support the entry for bleeder travel and bleeder examination.8 (T. 107). The can
closest to the area cited by Young was two to three feet away. (T. 107). One could not get
equipment into the crosscut with the can there. (T. 108). Roebuck, however, could not say when
the can was built there. (T. 108). Roebuck did not recall seeing anyone working in the No. 1
entry while he accompanied Young. (T. 110). The only supplies that could be hauled into the No.
1 entry would be cans for permanent roof support, wall sealant, wall replacement, and building
supplies. (T. 110).
Young had seen evidence of scoop tracks in the No. 1 entry, which was the primary
escapeway. (T. 79). Scoops could not tram past the No. 2 entry which was the secondary
escapeway. (T. 70). There were no objections voiced regarding Young’s measurements of the
overhang at the scene. (T. 82, 131).
Roebuck disagreed with the S&S designation, stating that in the event of an emergency a
miner would “more than likely” use the No. 2 entry and would not be expected to be traveling by
the cited corner. (T. 115).
A. CONTENTION OF THE PARTIES
The Petitioner contends that the Respondent had failed to maintain the roof and rib at a
right outby corner, allowing a hazardous overbrow to form in violation of § 75.202(a). Given the

8

Young could not recall if there were cans in the entry, but testified that if there were
cans then a scoop could not have traveled in the entry of the 44 crosscut, unless scoops had
traveled in the area before cans were set. (T. 64).

41 FMSHRC Page 808

size and location of the overhang, including its proximity to foot and vehicle traffic, the violation
was S&S in nature.9
The Respondent contends that the cited area was not traveled regularly and that
examiners traveled in the middle of the entry and not near the cited corner. Respondent further
contends that the cited corner was not loose and not reasonably likely to fall and was, in fact,
difficult to pull down. Any violation of § 75.202(a) could not survive a Mathies/Newtown S&S
analysis.
B. BURDEN OF PROOF AND STANDARD OF PROOF
The burden of persuasion is upon the Secretary to prove the gravamen of a violation by
the preponderance of the evidence. Jim Walter Resources, Inc., 28 FMSHRC 983, 992 (Dec.
2006). RAG Cumberland Resources, Corp., 22 FMSHRC 1066, 1070 (Sept. 2000). Jim Walter
Res., Inc., 9 FMSHRC 903, 907 (May 1987). This includes every element of the citation. In re:
Contests of Respirable Dust Sample Alteration Citations: Keystone Mining Corp., 17 FMSHRC
872, 878 (Aug. 2008).
Commission precedents have held that “[t]he burden of showing something by a
‘preponderance of the evidence’ the most common standard in the civil law, simply requires the
trier of fact ‘to believe that the existence of a fact is more probably than its nonexistence.’” RAG
Cumberland Resources Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), quoting Concrete Pipe &
Products of California, Inc. v. Constr. Laborers Pension Trust for S. California, 508 U.S. 602,
622 (1993).
The United States Supreme Court has held that “[b]efore any such burden can be satisfied
in the first instance, the factfinder must evaluate the raw evidence, finding it to be sufficiently
reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the
requisite degree of certainty.” Concrete Pipe & Products of California, Inc. v. Constr. Laborers
Pension Trust for S. California. 508 U.S. 602, 622 (1993). The assessment of evidence is a
process of weighing, rather than mere counting: “[T]here is a distinction between civil and
criminal cases in respect to the degree or quantum of evidence necessary to justify the [trier of
fact] in finding their verdict. In civil cases their duty is to weigh the evidence carefully, and to

9

The Secretary further argued that the second prong of the S&S analysis should be less
burdensome and that its position should be entitled to deference. (SB at 16). Because this Court
finds that the Secretary met its burden under the Newtown analysis, the question of whether the
Secretary’s test for S&S is entitled to deference is left for a future case.

41 FMSHRC Page 809

find for the party in whose favor it preponderates.” Lilienthal’s Tobacco v. United States, 97 U.S.
237, 266 (1877).10
While the Secretary must prove the elements of a citation by a preponderance of the
evidence, this Court’s factual determinations must be supported by substantial evidence.11
As to this and other controverted matters discussed intra, this Court has credited the
opinions of Young, an experienced MSHA inspector.12 (see also Harlan Cumberland Coal Co.,
20 FMSHRC 1275, 1278-1279 (Dec. 1998) and Buck Creek Coal, Inc. v. MSHA, 52 F. 3d 133,
135-136 (7th Cir.) re crediting opinions of experienced MSHA inspectors).
This Court observes that the applicable “degree of certainty” is particularly pertinent to
the present controversy. For example, in evaluating the testimony of the MSHA inspectors, this
Court was guided by a civil “more probable than not” standard. If the within matters were
criminal in nature requiring that the government establish proof of violation(s) beyond a
reasonable doubt, the within outcome may have been different.

10

“What is the most acceptable meaning of the phrase, proof by a preponderance, or
greater weight, of the evidence? Certainly the phrase does not mean simple volume of evidence
or number of witnesses. One definition is that evidence preponderates when it is more
convincing to the trier than the opposing evidence. This is a simple commonsense explanation
which will be understood by jurors and could hardly be misleading in the ordinary case.” 2
McCormick On Evid. § 339 (7th Ed.). emphasis mine. Indeed the notion of justice being an
assessment by weighing has ancient roots, extending at least as far back as the Iliad’s Book
XXII: “Then, at last, as they were nearing the fountains for the fourth time, the father of all
balanced his golden scales and placed a doom in each of them, one for Achilles and the other for
Hektor.” HOMER. THE ILIAD, BOOK XXII, trans. Samuel Butler, 1898.
11

When reviewing the finding of fact by a lower court, the Commission will decline to
disturb the determination if is supported by substantial evidence. Wolf Run Mining Co., 32
FMSHRC 1669, 1687 (Dec. 2010), U.S. Steel Mining Co., 8 FMSHRC 314, 319 (Mar. 1986).
This test of factual sufficiency has been a part of Commission jurisprudence since its inception,
required by the plain text of the Mine Act itself. 30 U.S.C. § 823(d)(s)(A)(ii)(I). Substantial
evidence has been described by the Commission as “such relevant evidence as a reasonable mind
might accept as adequate to support [the judge’s] conclusion.” Rochester & Pittsburgh Coal Co.,
11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)).
12

With respect to Citation No. 9079297, infra, this Court similarly credits the opinions of
Inspector Yates for the same legal reasons.

41 FMSHRC Page 810

C. ANALYSIS
1. The Secretary has proved by a preponderance of the evidence that there was a
violation of 30 C.F.R. § 75.202(a).
At hearing, MSHA Inspector Young credibly described his discovery of an overhanging
brow at the right outby corner of the No. 1 entry, the overhang measuring 28 inches in length, 32
½ inches in height, with a 30-inch base and weighing approximately 620 pounds. (T. 20-22; GX16).
Young observed the lower corner being pulled down with a slate bar and noted that it had
taken “hardly nothing to pull it down.” (T. 25).
Section 75.202(a) provides, in pertinent part:
The roof, face, and ribs of areas where persons work or travel shall be supported
or otherwise controlled to protect persons from hazards related to falls of the roof,
face, and ribs…
The cited condition patently appears to be in violation of this mandatory safety standard.
Neither at hearing nor in its briefs has Respondent offered persuasive evidence or argument to
contest the fact of violation.
The Secretary has carried its burden of proving that section 75.202(a) was, in fact,
violated.
2. The Respondent’s violation of section 75.202(a) was S&S in nature.
For nearly a generation the Commission’s analytical framework for evaluating purported
S&S violations rested upon the four step process set forth in Mathies Coal Co., 6 FMSHC 1, 3-4
(Jan. 1984).
Mathies required that the Secretary prove: (1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard; (3) a reasonable likelihood that the hazard
contributed to will result in injury; (4) a reasonable likelihood that the injury in question will be
of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, (Jan. 1984).
In MSHA v. Newtown Energy, Inc., 38 FMSHRC 2033, 2036-2040 (Aug. 2016), the
Commission modified Mathies by shifting the “reasonable likelihood” inquiry to the second step.
Under Newtown, the S&S analysis inquires whether:
(1) there has been a violation of a mandatory safety standard;
(2) based upon the particular facts surrounding the violation, there exists a
reasonable likelihood of the occurrence of the hazard against which the
mandatory safety standard is directed;

41 FMSHRC Page 811

(3) based upon the particular facts surrounding the violation, the occurrence of
that hazard would be reasonably likely to result in an injury; and
(4) any resultant injury would be reasonably likely to be reasonably serious.
MSHA v. ICG Illinois, LLC, 38 FMSHRC 2473, 2483 (Oct. 2016) (Althen Dissenting).
The Commission, in Newtown, held that the proper focus of the second step in Mathies
was the likelihood of the occurrence of the hazard the cited standard is designed to prevent.
Newtown, 38 FMSHRC at 2037, FN 8. The majority further emphasized that it was essential for
the judge to adequately define the particular hazard to which the violation allegedly contributed.
Id. at 2038. The starting point for determining the hazard should be the actual cited section. Id..
For the following reasons, this Court finds that the Secretary has established that all four
prongs of Mathies/Newtown have been met.
a. Violation of a Mandatory Safety Standard
The discrete safety hazard presented by the within violation was the danger of falling
materials upon individuals passing near to or under the overhanging brow. The Secretary has
proved the existence of particular facts surrounding the violation of section 75.202(a) to establish
that the occurrence of falling materials would be reasonably likely to result in an injury.
b. Reasonable Likelihood of the Occurrence of the Hazard
i. Exposure to the Unsafe Condition
At hearing Inspector Young credibly described the cited area as one involving “a lot of”
foot traffic. (T. 25). Persons in this area could have easily walked directly underneath or nearby
the unsupported brow. (T. 23). Miners, contractors, and examiners (pre-shift, on-shit, and
weekly) could have been exposed to the hazard. (T. 27-28).
Miners driving scoops near the rib corner had apparently contributed to the overhang and
were in its vicinity. This exposure of so many individuals who might walk or operate machinery
near or under the overhang increased the likelihood of this occurrence of the hazard. (T. 18; see
also Young testimony re scoop tracks. TT. 52-53).
This Court has carefully considered the arguments advanced by Respondent that the cited
area was less heavily traveled than contended by the Secretary and that access to the cited area
would be difficult.13 (see inter alia R-B at 10-11). This Court, however, is persuaded that various
individuals, including equipment operators, did travel in vicinity of the area and could have been
exposed to the hazard. This Court takes further note of the Commission decisions cited by the
Secretary upholding an S&S designation where only a weekly examiner was exposed to the
unsafe condition. (see SB at p. 24).
13

Regardless of disputes in lifelines, the area was travelled.

41 FMSHRC Page 812

ii. Size and Weight of Overhang
This Court found the size and weight of the overhang to constitute other particular facts
surrounding the violation which contributed to the reasonable likelihood of the occurrence of
falling materials. (see also T. 22-23).
At hearing and in its briefs, the Respondent offered little evidence or argument contesting
the size and weight of the overhang.
iii. Existence of Cracking in the Overhang
At hearing Inspector Young credibly described a crack at the roof line of the overhang
and the certain collapse of the overhang if there were a large gap. (T. 66).
Given the size and weight of the overhang, its beginning roof line cracking and
considering the inexorable force of gravity, this Court found said factors to increase the
likelihood of falling materials.
iv. Ease of Abatement
As noted supra the overhang was scaled down without much difficulty, a reasonable
inference flowing from such that the overhang could easily have fallen during continuing mining
operations.
Considering all of these particular facts surrounding the within violation, there was a
reasonable likelihood of the occurrence of falling materials so as to satisfy Newtown step 2
requisites.
c. Occurrence of the Hazard Would Be Reasonably Likely to Result in an Injury
There was a reasonable likelihood that if the 600-plus pound brown fell, it would result in
would reasonably result in a serious injury to a miner standing or traveling beneath it. Inspector
Young testified that he had observed roof and rib falls that resulted in serious injuries. (T. 3334).
d. Any Injury Resulting from the Occurrence of Falling Materials Would Be
Reasonably Likely to Be Serious in Nature
At hearing MSHA Inspector Young credibly testified regarding the serious injuries that
could be caused by roof/rib falls. (TT. 33-34). Given the size and weight of the overhang in
question, the occurrence of falling materials would reasonably be likely to result in a serious
injury, if not a fatal one.14
14

This Court takes judicial notice that roof falls remain the leading cause of miner
fatality. See inter alia, Sep. 8, 2017 “Fatalgram” reporting death of 62 year old section foreman
killed in West Virginia mine by a 3 foot by 2 foot rock-fall between roof bolts.

41 FMSHRC Page 813

3. The inspector’s gravity assessments of lost work days or restricted duty and of one
person being affected is supported by the record.
Considering the serious nature of any injury involving the large overhang at issue, the
inspector’s gravity assessment of lost work days is more than supported by the record.
Likewise, the inspector’s assessment of one person affected, given the unlikeliness of
more than one person affected, given the unlikeliness of more than one person at a time being
injured by the falling corner, is supported by the record. (see also T. 32).
4. The low level of negligence designated by the inspector is supported by the totality of
the circumstances.
29 C.F.R. § 100.3(d) provides that low negligence is where “the operator exercised
diligence and could not have known of the violative condition or practice.” As noted supra,
Commission judges are not required to apply the definitions of Part 100 but may evaluate
negligence from the starting point of a traditional negligence analysis, considering the
circumstances holistically. (see also Brody Mining, LLC, 37 FMSHRC at 1702). After carefully
considering the testimony at hearing, including that of Inspector Young who conceded that
corners can pop or start to deteriorate quickly (T. 32), this Court is persuaded that the low
negligence was a proper finding.
5. The Secretary’s proposed penalty of $363.00 is affirmed.
This Court affirms the penalty of $363.00 and finds no reason to diverge from such
pursuant to Sellersburg, supra. In arriving at this conclusion this Court has considered the six
statutory factors in section 110(i) of the Act. This Court noted that Respondent stipulated that
Secretary’s proposed penalty would have no effect on his ability to continue in business and that
the size of Consol is relatively large. The operator does have a history of similar violations. (see
GX-18). As found within, the violation was S&S in nature but involving only low negligence.
The operator did display good faith in attempting to achieve rapid compliance.

41 FMSHRC Page 814

IV.

CITATION NO. 9079297
SUMMARY OF TESTIMONY

On August 26, 2018, Bryan Yates was conducting an E02 spot inspection for methane.15
(T. 140). Yates was escorted by Respondent’s safety inspector, Daniel Colby.16 (T. 199; R-D).
During Yates’s inspection, he noticed an energized cable going to a feeder, which was hanging
down. (TT. 142, 144). He performed a visual observation and noted possible damage to the
cable, which was located in the center of the entry. (T. 143, 146-149). Colby testified that he did
not see any damage to the cable which Yates requested be taken down. (T. 203).
After Colby disconnected the power, Yates examined the cable. Yates testified that he
would literally put his hands on the cable or slide cables through his hands. (T. 159). He could
tell “in a heartbeat” if there was a deformity in the cable. (T. 160). Yates found two damaged
locations: one area was approximately three-fourths of an inch wide with no visible damage to
the inner conductors; the second area was one and three-fourths of an inch wide with visible
damage to the white inner conductor.17 (T. 144, 166; GX-13). One location involved damage to
the white inner conductor which carried electricity to the feeder. (T. 146).
Yates was 5 feet 8 inches in height, but the cable was 7 to 10 feet high. (T. 160, 175,
201). Colby had to help Yates get the cable off the J-hook using a four-foot sounding stick. (T.
174-175, 201). Before Yates and Colby had taken down the cable, it was still energized. (T. 174175). Yates did not know why the sensitive ground fault had not been working. (T. 182-183). He
had not talked to anyone from Consol who knew that there was damage to the cable. (T. 183184).
15

At hearing Bryan Yates appeared and testified on behalf of the Secretary regarding the
issuance of Citation No. 9079297. Yates had worked for MSHA for 4 ½ years as an underground
coal mine inspector. (T. 138). Prior to joining the agency he had worked in underground mining
for approximately 13 years. His jobs involved equipment operator, belt shoveler, scoop operator,
fireboss, and section foreman. (T. 139). His certifications included miner’s foreman’s papers,
Kentucky miner emergency technician, CPR instructor, and Kentucky miner instructor’s
certifications. (T. 139).
16

At hearing Daniel Colby appeared and testified on behalf of the Respondent. Colby had
worked for 18 years for Consol, all of which were at Enlow Fork mine. (T. 195). His positions
included production maintenance person, tuber event person, bolter, center bolter, rib bolter, side
bolter, machine runner, longwall shield operator, safety technician, and safety inspector. (TT.
195-196). At the time of hearing, he was working as a safety inspector and had been doing so in
August 2018. (T. 196). He did PPE ordering for the miners. (T. 197). He escorted federal
inspectors during their mine inspections. (T. 197). These escorts took place four out of five days.
(T. 197).
17

Yates measured the damaged area with a tape measure. (T. 156). Yates had placed his
lock on the lockout/tagout device to protect himself from unauthorized re-energization of the
cable. (T. 144). The cited cable had 480 volts. (T. 150).

41 FMSHRC Page 815

The hazard to which miners would be exposed would be contacting an energized lead and
getting electrocuted. (T. 149, 223). The injury would be fatal. (T. 150). Yates himself had once
been badly shocked when he had attempted to pick up a damaged cable to prevent equipment
from running over it. (TT. 150-151). The shock nearly killed him. (T. 145). This experience had
made him “very observative” on cables. (T. 151). Yates also described a fatality in 84 Mine
where a ram car pinched a cable on the rib, energizing the car and killing a miner attempting to
exit. (T. 154). It was possible for electricity to track through a pinhole in the cable. (T. 191). A
fatality can take place even without obvious evidence that the outer jacket is damaged. (T. 192).
The likelihood of injury was assessed as “reasonably likely.” (T. 150; GX-11). A major
factor taken into consideration was “exposure.” (T. 150). If a shuttle car, ram car, or scoop were
to knock the cable off its J-hook, a miner, in attempting to rehang it, might grab the cable on its
damaged area and sustain a serious or fatal electrical injury. (T. 150). In the past, Yates had
witnessed energized cables knocked off J-hooks, falling to the bottom, and being rehung by
miners. (TT. 150-151). When considering the factor of exposure to the cited hazard, Yates took
into account the number of miners working in and traveling by the area. (T. 186). Yates could
physically reach the cable while standing on the bottom. (T. 188). He had measured the cable
damage from side-to-side of the tear and not just the hole itself. (T. 190). The other damaged
area did not have damage to the inner conductors. (T. 191).
On the date the citation was issued, Yates had observed ram cars, loaded high with coal,
passing through the area, with rock coming into contact with the energized cable. (T. 152).
Furthermore, miners standing on the bottom could have touched the cable. (T. 152). The area
where the cable was located—2 east mains outby, 98 wall—was considered “wet.” (T. 153).
Given the way the ram cars were set up and loaded high, a cable could be struck, requiring
miners to get out of their cars and rehang the cable. (T. 153).
Yates opined that miners often traveled through the area, including scoopers cleaning the
feeder. (T. 154). He determined that only one person would be affected because not more than
one person would be grabbing the damaged area of the cable at a time. (T. 155). He agreed that a
feeder would move less frequently in a main section than in other sections. (TT. 175-176).
Referring to the photograph of the damaged cable contained in GX-3, Yates denied that
he had manipulated the cable in any way before the photograph was taken. (T. 156). However, he
testified that he “probably” had twisted the cable to help “get the coal and stuff” out. (T. 173).
Yates testified that he had dug into damaged cables in the past in order to make certain they were
safe. (T. 156, 172). He would do so only in instances where it was necessary, but testified that he
did not do so in the instant case. (Tr. 156). He did not believe that twisting or turning a cable
could damage an inner conductor. (T. 173). He was uncertain as to how the cable was damaged.
(T. 172). He also denied digging into the cable with any tool. (T. 156, 172). On crossexamination, Yates testified that he could not remember what he had used to tap out the debris
from the damaged cable’s tear. (T. 165). In the past he’d use a walking stick or screwdriver. (T.
165). Colby testified that Yates used a small screwdriver to clean out the hole, prying it open and
twisting the cable. (T. 204-205).

41 FMSHRC Page 816

Colby had never before witnessed an inspector actually rotate a cable and torque it during
his inspection. (T. 205). Colby could not detect any inner conductor damage in viewing the
photograph contained in GX-13 nor did he recall seeing any such damage in other photographs.
(TT. 205-206). Colby referred to his notes in which he stated that he had observed a cut “large
enough and deep enough to damage the white conductor cable.” (T. 206). He did not, however,
observe this tear before Yates had manipulated the cable. (T. 206). Colby did not think that Yates
would intentionally damage the cable, although in his notes he described Yates’ rotating the
cable to embellish the opening. (TT. 218-219).
Yates assessed the violation as being the result of “Moderate” Negligence. (T. 158). He
did so because a boss is required to do a pre-shift and on-shift examination of the feeder area. (T.
157). The cable had been last examined on August 25, 2018, the day before Yates’ inspection.
(T. 158). A member of mine management as well as an examiner should therefore have known of
the condition. In order to do a thorough examination or inspection, one should go “hand-overhand” on the cable. (T. 159). However, there was a lot of dust on the cable, indicating that the
examiner had not performed an adequate examination in order to find the problem. (T. 159).
Yates did not know when the cable was last examined nor did he attempt to locate and question
the previous examiner. (T. 179). He did not know if Respondent had mined on August 25, 2018,
or the last time Consol had dumped coal on (No. 13) feeder. (T. 180). Due to Respondent’s
problems with damaged cables, Yates was starting to issue citations designating high negligence
because the mine operator had now been put on notice of this unsafe condition. (T. 162).
General maintenance foreman Travis Stout noted that there had been an electrical repair
on the feeder on August 14, 2018.18 (T. 235; R-E). The cable in the packing gland on the main
contractor panel had pulled out of the gland and the mechanic put it back in the gland and had
repaired it. (T. 235). Reviewing an electrical exam report on August 25, 2018, Stout noted that a
ground fault associated with the No. 13 feeder had been detected. (T. 236). Consol had a 1 amp
fault current limit which was tripped at 300 milliamps—which was 25 times less than the law
required. (T. 237). Stout further testified that if the inner conductor was damaged and the
sensitive ground fault tripped the breaker, power would not be expected to remain on the cable.
(TT. 237-238). However, there was no issue with the sensitive ground fault on the No. 13 feeder
at the time Yates had issued his citation. (T. 238).
Colby conceded that he had witnessed damage to the inner white conductor. (T. 220). He
further conceded that a ram car conductor might exit his vehicle to rehang the cable, if it were
knocked off the J-hook. (T. 221). The feeder cable is inspected every week so the damage could
potentially be there for that length of time. (T. 221).

18

At hearing Travis Stout appeared and testified on behalf of the Respondent. He had
worked for Consol for 25 years and for Enlow Fork Mine for 18 years. (T. 232). His current
position was that of general maintenance foreman or master mechanic, a position which he had
held for approximately seven years. (T. 232). His other jobs included shift maintenance foreman,
electrical foreman, long wall maintenance coordinator, assistant master mechanic, and
maintenance trainee. (T. 232). He had a B.S. in Electrical Engineering. (T. 232).

41 FMSHRC Page 817

A. CONTENTION OF THE PARTIES
The Petitioner contends that Respondent had failed to maintain an energized 480 volt
power cable which provided power to a feeder. The MSHA inspector found two damaged areas
on the cable, one area measuring one and three-fourths inch in length, having exposed damaged
inner conductor and copper. This constituted a clear violation of § 75.517 which requires that
power cables be adequately insulated and fully protected. Given the area and traffic where the
cable was located, there was a reasonable likelihood that a miner would be exposed to electrical
shock satisfying the S&S requirements of Mathies/Newtown.
The Respondent contends that the cable in question was, in fact, adequately and safely
maintained. Only after the inspector had twisted, contorted, and manipulated it and misused a
screwdriver during his examination, did the cable become damaged and unsafe. Further, even if
the cable’s tear was existent prior to the inspector’s manipulations, there was no reasonable
likelihood of the occurrence of the hazard against which the mandatory safety standard was
directed pursuant to the Commission’s holding in Newtown.
B. ANALYSIS
1. The Secretary has proved by a preponderance of the evidence that there was a
violation of 30 C.F.R. § 75.517.
Section 75.517 provides, in pertinent part, that power cables shall be insulated adequately
and fully protected. 30 C.F.R. § 75.517. At hearing the Secretary presented testimonial and
photographic evidence that the cable supplying power to the No. 13 feeder was damaged in two
places, one of which posed a clear danger of electrocution to miners.
The Respondent has argued that there was no damage to the cable in the cited area until
MSHA Inspector Yates had unreasonably bent, twisted, torqued or otherwise manipulated the
cable and until Yates had improperly examined the tear itself with a small screwdriver.
This Court initially observes that the Respondent presented no persuasive evidence,
expert testimony or otherwise, that manipulating power cables, such as those found at Enlow
Fork, would actually cause the type of tear or damage, including exposure to copper, found in the
cited cable.
Indeed, as to the fact of violation, Respondent’s own witness, Dan Colby, conceded that a
violation existed, stating:
“I’ve seen a lot of citations. I don’t disagree that it’s not a citation. But…I don’t
believe it’s S&S…” (T. 208) (emphasis added).
Considering Yates testified to near fatal electrocution in the past, this Court recognizes
that Yates may be abundantly cautious—to a fault—in enforcing electrical safety standards. This
Court further recognizes that Yates’ vigorous manipulations may have embellished the cable’s
opening. (see Colby’s comments regarding such at R-D). However, this Court does not find that

41 FMSHRC Page 818

Yates’ examination techniques, however unorthodox or embellishing, created the cited cable’s
inner damage. Yates provided ample reasons why he may need to manipulate a cable, such as
removing coal and other debris or making certain the cable was safe. (T. 156, 172, 173). As
opposed to this, Respondent presented little or no evidence as to what should be the proper or
preferred techniques for examining and photographing damaged cables.
The undersigned has practiced law for over 40 years and is not naïve regarding the
regrettable truth that witnesses sometimes lie on the stand.19 This Court further understands that
Yates’ personality and zealotry have raised antipathy and suspicion on the part of the
Respondent. However, having considered all the evidence presented by the Secretary and
Respondent, in toto this Court ultimately rejects Respondent’s arguments, express or implied,
that Yates had deliberately or recklessly damaged the cable so as to have self-created the
violation and then had given perjured testimony in support of such.
There may have been some inconsistencies and self-serving exaggerations in Yates’
testimony, but this Court neither finds Yates to be a fundamentally mendacious individual nor
did it observe any instances where Yates engaged in fabrications.20 On the whole, and as to the
particular facts of the cable’s tear and inner conductor exposure, this Court found the inspector’s
testimony to be credible and reliable.21
This Court essentially concurs with the arguments advanced by the Secretary at hearing
and in his briefs that there was a violation of section 75.517 and finds that the Secretary has
presented sufficiently probative and credible evidence establishing this underlying violation of a
mandatory safety standard.

19

See Professor Anthony Salzman’s observation: “witnesses have violated their judicially
administered oaths to tell the whole truth since the beginning of American jurisprudence…”
Journal of Criminal Law & Criminology, Vol. 67, No. 3, p. 273.
20

To recall Big Daddy’s lines from Tennessee Williams’ Cat On a Hot Tin Roof: “There
ain’t nothing more powerful than the odor of mendacity…you can smell it. It smells like death.”
Tennessee Williams, Cat on a Hot Tin Roof, 166 (2004).
21

See inter alia Respondent witness Colby’s observations of the cable’s damaged white
inner conductor and exposed copper. (T. 218).

41 FMSHRC Page 819

2. The Respondent’s violation of section 75.517 was S&S in nature.
This Court hereby incorporates the review of S&S requirements recited supra. The
Secretary has established that all four prongs of Mathies/Newtown have been met. In determining
whether a violation is S&S, the finding must be made on the facts that existed at the time of
issuance of the citation and must assume continual normal mining operations absent abatement.
U.S. Steel Mining Company, Inc., 6 FMSHRC 1573, 1574 (July 1984). Many of the “facts”
surrounding the within violation, as noted supra, are in dispute and must ultimately be resolved
by the undersigned who is sitting both as trier-of-fact and trier-of-law. The following facts,
supportive of an S&S designation, are found in favor of Petitioner.
a. Violation of a Mandatory Safety Standard
The Secretary has proved the existence of particular facts surrounding the violation of
section 75.517.
b. Reasonable Likelihood of the Occurrence of the Hazard
In the within matter, the particular hazard against which section 75.517 is directed is
electrical shock or electrocution due to a miner coming into contact with inadequately insulated
or not fully protected power cables.
The majority in Newtown recognized that “reasonable likelihood” was not an exact
standard which could be calculated in precise percentage terms. Newtown, 38 FMSHRC at 2039.
Further the “reasonable likelihood” standard was a “matter of degree” evaluation with particular
focus on the facts and circumstances presented regarding the risk involved. Id.22
The majority noted that the Commission had never construed “reasonable likelihood’ in a
narrow or cramped manner that would hinder the achievement of the Mine Act’s objective of a
safe and healthy mining environment. Id., at 2040.
Considering the particular facts surrounding the within violation of section 75.517 and
the Commission’s directives in Newtown, this Court finds that there was “a reasonable
likelihood” of the occurrence of the hazard against which the mandatory safety standard was
directed.
In finding “reasonable likelihood” this Court specifically notes that it has rejected many
of the Respondent’s suggested findings of fact in favor of those argued by the Secretary. As
noted supra, this Court finds that the area where the cable was located was frequently traveled by
miners on foot and on motor vehicles, including ram cars, that the cable, whether in a hanging
position or knocked to the floor, was accessible to miners traveling or working in the area, that
the damage to the cable existed prior to Yates’ examination and was of such character that it
22

The majority rejected (for the time being) an “at least somewhat likely” standard, also
noting “more probable than not” did not mean “reasonably likely.” Newtown, 38 FMSHRC at
240, fn 12.

41 FMSHRC Page 820

could cause electrocution. The area in question was considered “wet.” (T. 153). Miners usually
do not wear electrocution-protective gloves or gear. These particular facts also increase the
likelihood of electrocution. (see also T. 9, 132).
In reaching the within S&S determination, this Court has not considered the redundant
safety features utilized by Respondent. Such safety precautions, including the mine’s sensitive
ground fault, do not bear upon an S&S inquiry as to whether the hazard is “reasonably likely” to
occur. (see Brody Mining, LLC, 37 FMSHRC 1687, 1691 (Aug. 2015) and Secretary’s arguments
with which this Court concurs, including at SB, p. 18).
This court also notes that Newtown upheld that whether miners would exercise caution is
not relevant under the Mathies test. (Newtown, 38 FMSHRC at 2044); See Also Eagle Nest, Inc.,
14 FMSHRC 1119 (July 1992).
In light of the foregoing matters not to be considered in the S&S inquiry and considering
the totality of the circumstances, including those facts found in favor of the Secretary, this Court
finds that Newtown’s second prong is met. There was a reasonable likelihood of exposure to
electrocution due to damaged power cables which section 75.517 was directed against.
i. Access/Exposure to Cable: Height of Cable
The height that the cable hung from the bottom has been disputed by the parties. (see
inter alia Colby testimony that entry height was 8 feet to 10 feet. T. 201).
Inspector Yates, who is 5 feet 8 inches tall, testified that he could reach the cable while
standing upright on the bottom. (T. 152). He estimated the roof in the cited area to be 7 to 7 ½
feet in height and the cable to be 6 feet from the bottom. (T. 160). Although the Respondent
presented testimony that the cable was difficult to reach because of the height of the entry (T.
203), it presented no testimonial or photographic evidence that the hanging cable could not be
touched by someone standing on the bottom. In fact, Respondent’s witness, Dan Colby,
acknowledged that the cable hung lower than the roof. (TT. 216-217).
This Court concludes that miners could have grasped the cited hanging cable—albeit less
easily if they were shorter than the 5 feet 8 inches tall Yates or more easily if they were taller. In
any case, the potential for coming into contact with the low-hanging cable by grasping it was
existent.
ii. Access/Exposure to Cable: Cable on the Mine Floor
At hearing the Secretary presented evidence that coal loaded on top of ram cars could
contact the hanging energized cable and knock it to the floor. (see T. at 152, 221, and Summary
of Testimony supra). This created the reasonable potential for a miner who, attempting to
retrieve or happening upon the energized cable, could come into contact with it.

41 FMSHRC Page 821

iii. Access/Exposure: Trammable Feeder; Belt and Power Moves
At hearing the Secretary also presented testimony that the 480 volt cable powered a
trammable feeder which miners moved frequently. (T. 161). While there was some dispute as to
how often the feeder in the cited area was moved, there was no dispute that miners would be
handling the energized cable during feeder movement, thus creating another occasion where
miners might be exposed to electrocution. (see also S-B at p.15 for discussion of such).
iv. Access/Exposure: Frequently Traveled Area
At hearing the Secretary also presented evidence that the area was frequently traveled,
this factor also increasing the likelihood of a miner coming into contact with the damaged cable.
(see also T. 153-155).
v. Exposure to Damaged Cable Could Lead to Electrocution
At hearing there was some question as to whether the size and character of the cable
damage would allow electrocution. Inspector Yates credibly testified that even a pinhole sized
puncture could result in a fatality. (T. 191). The damage to the cable at issue was much larger
and more extensive. (see Harlan Cumberland Coal Co., 20 FMSHRC 1275 (Dec. 1998), where a
violation of § 75.715 was found for a tear in the outer jacket of a cable.) In assessing Yates’
testimony regarding the danger posed by a pinhole sized tear in the inner conductor (T. 190-92),
this Court notes the Commission holding in Sec’y of Labor v. Wolf Run Company, 30 FMSHRC
1947, at 1955-1956, wherein the Commission upheld the ALJ’s crediting of MSHA inspector’s
testimony regarding the danger posed by a telephone wire lacking a required lightning arrester.
Accordingly, this Court finds that the damage in the cited cable was in fact sufficiently extensive
so as to have created the hazard of electrocution to any miner coming into contact with such.
c. Based upon the particular facts surrounding the violation of section 75.517, the
occurrence of an electric shock/electrocution hazard would be reasonably likely to
result in a serious injury.
In Newtown the Commission noted that the third step in Mathies was primarily concerned
with gravity and that the analytical focus now shifted from the violation to the hazard whose
existence had already been established in the analysis. (Newtown., 38 FMSHRC at 2037).
Assuming the existence of an electric shock or electrocution hazard, the occurrence of
such would reasonably be likely to result in injury.
Given this Court’s above findings and conclusions of law, any resultant electric
shock/electrocution injury would be reasonably likely to be reasonably serious or fatal.

41 FMSHRC Page 822

3. The expected injury arising from the violation would be fatal, would be expected to affect
one person, and involved moderate negligence.
At hearing Inspector Yates credibly testified that the expected injury resulting from a 480
volt shock would be death, the gravity designation of fatal being therefore reasonable and proper.
(see also TT 149-150; GX-11).
Given that only one person at a time would likely handle the energized cable, the gravity
designation of one person who would be affected was also reasonable and proper. Respondent
did not contest such. (T. 155; GX-11).
In Sec’y of Labor v. Brody Mining, LLC., 37 FMSHRC 1687, at 1701 (Aug. 2015) the
Commission affirmed that, in making a negligence determination, Commission judges are not
required to apply the definitions of Part 100, may evaluate negligence from the starting point of a
traditional negligence analysis, and are not limited to an evaluation of allegedly mitigating
circumstances and could consider “the totality of the circumstances holistically.”
At hearing Yates again credibly testified that the operator knew or should have known of
the violative condition. (T. 153, TT. 158-159). This Court affirms the “moderate” negligence
designation.23
4. The penalty assessment of $2,487 is affirmed.
In Thunder Basin Coal Co., FMSHRC 1495, 1503, the Commission held that all of the
statutory criteria in § 110(i) should be considered in the court’s de novo penalty assessment but
not necessarily assigned equal weight. In Musser Engineering, Inc. 32 FMSHRC 1257, at 1289
(Oct. 2010) the Commission held that, generally speaking, the magnitude of the gravity of the
violation and the degree of operator negligence are important factors, especially for more serious
violations for which substantial penalties may be imposed. Here, the gravity of the violation as to
injury was designated as fatal.
This Court notes the parties’ stipulation that imposition of the total proposed penalties
would not affect Respondent’s ability to remain in business. (see J-1, paragraph 6).
Enlow fork is a large mine run by a large operator/controller with a history of violations.
(see also GX-18). The degree of negligence, as discussed supra, was “moderate.”
In reaching his own independent penalty assessment, this Court has placed greater weight
on the gravity of the violation and the size of the business of the operator than the other § 110(i)
factors. In light of such this Court sees no reason to deviate from Secretary’s proposed penalty
and affirms the $2,487.00 penalty that had been assessed. (see also Sellersburg Stone Co., 5
23

This Court notes the Third Circuit’s holding in Consol v. FMSHRC, 666 Fed. Appx.
165, 168-169 (3rd Cir. 2016). that even a “high” negligence finding may be warranted in certain
instances despite the presence of mitigating circumstances.

41 FMSHRC Page 823

FMSHRC 297, 298 (Mar. 1983), Aff’d 736 F. 2d 1147 (7th Cir) regarding ALJ’s duty to explain
substantial deviation from Secretary’s proposed penalty.)
ORDER
The Respondent, Consol Pennsylvania Coal Company, is ORDERED to pay the
Secretary of Labor the sum of $2,850.00 within 30 days of this order. 24

/s/ John Kent Lewis
John Kent Lewis
Administrative Law Judge

Distribution:
Brian P. Krier, Esq., The Curtis Center, 170 S. Independence Mall West, Suite 630E,
Philadelphia, PA 19106
Patrick Dennison, Esq., Fisher & Phillips LLP, 6 PPG Place, Suite 830, Pittsburgh, PA 15222

24

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

41 FMSHRC Page 824

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9987 / FAX: 202-434-9949

November 6, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on
behalf of TYLER HERRERA,
Petitioner,

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEST 2019-0364-DM
MSHA Case No. RM-MD-2019-11

v.
FIELD LINING SYSTEMS, INC.,
Respondent.

Mine: Freeport-McMoRan Safford Inc.
Mine ID: 02-03131

ORDER GRANTING TEMPORARY ECONOMIC REINSTATEMENT1
Before:

Judge Rae

This matter is before me upon a joint motion to approve the Settlement Agreement for
Temporary Economic Reinstatement (“Agreement”) filed on November 4, 2019, pursuant to
Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2).
Section 105(c) prohibits operators from discharging or otherwise discriminating against miners
who have engaged in safety related protected activity, and authorizes the Secretary of Labor
(“Secretary”) to apply to the Commission for miners’ temporary reinstatement, pending full
resolution of the merits of their discrimination complaints. The Secretary seeks an order
requiring Field Lining Systems, Inc. (“Respondent”), to temporarily economically reinstate Tyler
Herrera (“Herrera”) in lieu of actual temporary reinstatement.
In a Decision and Order issued July 11, 2019, I ordered Respondent to reinstate Herrera
to the position he held on April 20, 2019, with restoration of pay, allowances, and benefits
retroactive to the date he was discharged. On November 4, 2019, the parties filed for approval of
the Agreement, which stated that Respondent stopped employing Herrera on September 3, 2019
and that the parties agreed Respondent will economically reinstate Herrera in lieu of actual
reinstatement. The essential provisions of the Agreement are as follows:
1. Respondent agrees to economically reinstate Herrera to his position as laborer
effective September 3, 2019. Respondent agrees to pay Herrera at his regular pay,
which is $910.00 per week at a calculated at a rate of $14.00 per hour for 50
hours, and an overtime rate of $21.00 for 10 hours each week.
1

The Secretary filed this Settlement Agreement for Temporary Economic Reinstatement
under the related substantive discrimination docket WEST 2019-0489, which concerns the merits
of Herrera’s discrimination claim. This Order is properly filed under docket WEST 2019-0364 as
an amendment to the July 11, 2019 Decision and Order.

41 FMSHRC Page 825

2. Respondent agrees to pay Herrera retroactively between September 3, 2019 and
November 4, 2019, the period for which Herrera should have been employed by
Respondent under the July 11, 2019 Decision and Order.
3. Respondent shall provide benefits (including but not limited to health insurance,
retirement plan, and seniority accrual) associated with Herrera’s employment and
consistent with those provided pre-termination. Respondent may deduct all
applicable tax withholdings and other withholdings on the same basis as generally
required for payment of other benefits pursuant to its policies and practices
applicable to other employees.
4. The first payment shall be due to Herrera on Respondent’s first regular weekly
payday after the date this Agreement is executed by the parties. All subsequent
payments shall be due on Respondent’s regular weekly paydays. All payments
shall be made by regular payroll or certified check to “Tyler Herrera” and sent to
the following address:
Tyler Herrera
900 East Hollywood Lot #213
Safford, AZ 85546
Proof of each payment shall be forwarded by email within five days of payment to
the undersigned counsel for the Secretary at melendez.veronica@dol.gov.
5. Respondent agrees to provide a neutral job reference for Herrera if contacted by
potential employers.
6. If Respondent fails to provide payment and benefits as required by this
Agreement, the Commission may sanction it.
7. Herrera’s temporary economic reinstatement shall terminate upon a final order on
the underlying discrimination complaint or by an order of the Judge.
WHEREFORE, the motion to approve the Settlement Agreement for Temporary
Economic Reinstatement is GRANTED, and it is ORDERED that Field Lining Services,
Inc. TEMPORARILY ECONOMICALLY REINSTATE Tyler Herrera, in accordance
with all terms set forth in the parties’ Settlement Agreement for Temporary Economic
Reinstatement of November 4, 2019.

/s/ Priscilla M. Rae
Priscilla M. Rae
Administrative Law Judge

41 FMSHRC Page 826

Distribution:
Veronica Melendez, U.S. Department of Labor, Office of the Solicitor, 90 7th Street, Suite 3700, San Francisco, CA 94103
Paul S. Gerding, Kutak Rock LLP, 8601 North Scottsdale Road, Suite 300, Scottsdale, AZ 85253
Kristy Lagumas, Field Lining Systems, Inc., 439 S. 3rd Ave., Avondale, AZ 85323
Tyler Herrera, 900 East Hollywood Lot #213, Safford, AZ 85546
/smp

41 FMSHRC Page 827

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE N. W., SUITE 520N
WASHINGTON, D.C. 20004-1710
TELEPHONE NO.: 202-434-9933
TELECOPIER NO.: 202-434-9949

December 19, 2019
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on behalf of
JASON EBERT,
Applicant

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEVA 2020-0133-DM
MSHA Case No. MORG-CD-2020-04

v.

THE MARSHALL COUNTY COAL
COMPANY,
Respondent

Mine: Marshall County Mine
Mine ID: 46-01437

ORDER GRANTING TEMPORARY REINSTATEMENT
Appearances: Ryan Atkinson, U.S. Department of Labor, Office of the Regional Solicitor,
Philadelphia, Pennsylvania for the Petitioner
Philip K. Kontul, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Pittsburgh,
Pennsylvania, for the Respondent
Before:

Judge William B. Moran

This matter concerns the Secretary of Labor’s (“Secretary”) Application for Temporary
Reinstatement of miner Jason Ebert to his position at The Marshall County Coal Company
(“Respondent”), filed pursuant to the Secretary’s authority under section 105(c) of the Federal
Mine Safety and Health Act of 1977 (“Mine Act”). Application for Temporary Reinstatement,
December 6, 2019, (“Application”). On December 11, 2019, Respondent, pursuant to its right
under Commission Procedural Rule 45(c), 29 C.F.R. § 2700.45(c), requested a hearing on the
Secretary’s Application. A hearing convened on December 17, 2019 in Wheeling, West Virginia.
The only issue considered at the hearing is whether the Secretary’s application was frivolously
brought.
For the reasons described herein, the Court, finding the Application not frivolously
brought, GRANTS the Secretary’s Application for temporary reinstatement of Jason Ebert,
effective as of the date of this Order.

41 FMSHRC Page 828

Statement of Facts
As noted, the Respondent requested a hearing on the Secretary’s Application for
temporary reinstatement. The Secretary called for its first witness Jason B. Adkins, who is the
Supervisor of Human Resources for the Respondent mine. Tr. 26. Not long into Mr. Adkins’
testimony an evidentiary issue arose. The Court directed that a recess occur for the purpose of
having counsel for the Secretary and for the Respondent to confer regarding that issue. The Court
excused itself, retiring to chambers while the parties’ counsels privately conferred.
Subsequently, the parties’ counsels informed the Court that they had completed their
conferencing and the proceeding then resumed on the record. At that point, counsel for the
Respondent stated that it was withdrawing its request for a hearing. Tr. 68. The Court responded
that, pursuant to Respondent’s withdrawal of the hearing request, it would treat the matter as
effectively operating under 29 C.F.R. § 2700.45(c), titled “Request for hearing.”
That provision states, in relevant part, “If no hearing is requested, the Judge assigned to the
matter shall review immediately the Secretary's application and, if based on the contents thereof
the Judge determines that the miner's complaint was not frivolously brought, he shall issue
immediately a written order of temporary reinstatement.” The parties agreed to the Court’s
construction of the applicability of the subsection, effectively treating the matter as if no hearing
had been requested. Tr. 69.
Principles of Law
In order for a miner to receive an order granting temporary reinstatement, the Secretary
must prove that the miner’s complaint was not frivolously brought. 30 U.S.C. § 815(c) (“[I]f the
Secretary finds that such complaint was not frivolously brought, the Commission, on an
expedited basis upon application of the Secretary, shall order the immediate reinstatement of the
miner pending final order on the complaint.” In drafting section 105(c) of the Mine Act,
Congress indicated that a complaint is “not frivolously brought” when it “appears to have merit.”
S. Rep. No. 181, 95th Cong. 1st Sess. 36-37 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong. 2nd Sess., Legislative History of Federal Mine
Safety and Health Act of 1977, at 6240625 (1978). As part of a temporary reinstatement
proceeding, the Commission has recognized that “[i]t [is] not the judge’s duty, nor is it the
Commission’s, to resolve the conflict in testimony at this preliminary state of the proceedings.”
Sec’y of Labor on behalf of Deck v. FTS Int’l Proppants, 34 FMSHRC 2388, 2390 (Sept. 2012).
While the Secretary is not obligated to make out a prima facie case of discrimination
during a temporary reinstatement proceeding, evaluating the Application with regard to the
elements of a discrimination claim is a useful method to assess whether an application is not
frivolously brought. There are two elements to an act of discrimination: first, that the employee
engaged in protected activity, and second, that the adverse action complained of was motivated
in part by that activity. Turner v. Nat’l Cement Co. of Cal., 33 FMSHRC 1059, 1064 (May
2011); Sec’y on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept. 1999); Sec’y
on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981).

41 FMSHRC Page 829

The determination of whether an application is frivolously brought is not limited to the
four corners of the discrimination complaint. The statutory scheme provides to miners an
administrative investigation and evaluation of an allegation of discrimination. Hatfield v.
Colquest Energy, 13 FMSHRC 544 (Apr. 1991). In Hopkins Cty. Coal, LLC, 38 FMSHRC 1317
(June 2016), the Commission expounded upon its Hatfield decision, stating that “the miner’s
complaint establishes the contours for subsequent action.” Hopkins, 38 FMSHRC at 1340. It
noted in Hopkins that the complainant’s original complaint was general in nature and contained
no indication of the new matters apparently alleged for the first time in the amended complaint.”
Id. at 1341 (citing Hatfield, 13 FMSHRC at 546). The Commission held that the initial complaint
formed the basis of MSHA’s investigation. Id. The key element in these matters is that the
determination of the scope of the complaint is not constrained entirely by the four corners of the
miner’s complaint, but is also informed by MSHA’s ensuing investigation:
The Commission has previously held that ‘the Secretary’s decision to proceed
with a complaint to the Commission, as well as the content of that complaint, is
based on the Secretary’s investigation of the initiating complaint to [him], and not
merely on the initiating complaint itself.’ Sec’y o/b/o Callahan v. Hubb Corp., 20
FMSHRC 832, 837 (Aug. 1998); see Sec’y o/b/o Dixon v. Pontiki Coal Corp, 19
FMSHRC 1009, 1017 (June 1997); Hatfield, 13 FMSHRC at 546. If the content
of a discrimination complaint filed with the Commission is based on that which is
uncovered during the Secretary’s investigation, then it follows that the Secretary’s
authority to investigate in the first instance cannot be circumscribed by the early
and often uninformed statements made by a miner in his charging complaint.
[Hopkins], at 1326 n.15.
Mulford v. Robinson Nevada Mining, 39 FMSHRC 1957, 1959-60 (Oct. 2017)(ALJ).
Accordingly, the Court need not limit itself strictly to considering the miner’s initial
discrimination complaint, so long as the additional evidence considered stems from the
Secretary’s investigation, its application for temporary reinstatement, and evidence evinced at
hearing.

41 FMSHRC Page 830

The Court’s Determination
The Court has reviewed the Secretary’s Application. The Application includes various
jurisdictional prerequisites, which were also read into the record at the commencement of the
hearing.1 The Application also represents that:
Complainant Jason Ebert, was hired by Respondent to work at its Marshall
County Mine operation to work as a laborer, and is a "miner" within the meaning
of Section 3(g) of the Mine Act, 30 U.S.C. § 802(g). [ ] Carl Ebert, Complainant's
brother, is a miner employed by Respondent who has a long history of being a
vocal safety advocate, and who has filed two § 105 (c) discrimination complaints.
[ ] On or around January 30, 2019, Respondent became aware that Jason Ebert
and Carl Ebert are brothers.[ ] On January 30, 2019, Respondent gave Jason Ebert
a choice: resign, or be terminated. [ ] Respondent informed Complainant that, had
Respondent been aware that he was Carl Ebert's brother, Respondent would not

1

These stipulations were as follows:

Stipulation 1. At all relevant times to this proceeding Respondent, The Marshall
County Coal Company, was an operator of the Marshall County Mine, Mine ID
46-01437.
Stipulation 2. The Marshall County Mine is a mine. That term is defined in
Section 3(d) of the act, 30 U.S.C. Section 802(d).
Stipulation 3. Respondent Marshall County Coal is engaged in the operation of a
coal mine, is therefore an operator as defined in Section 3(d) of the act, 30 U.S.C.
Section 802(d).
Stipulation 4. At all times relevant to this proceeding products of Marshall County
Coal entered commerce or the operations or products thereof affected commerce
within the means and scope of Section 4 of the Mine Act, 30 U.S.C. Section 803.
Jason Ebert was previously employed by Marshall County Mine. Jason Ebert is a
miner within the meaning of Section 3(g) of the Mine Act, 30 U.S.C. Section
802(g). Marshall County Coal is subject to the jurisdiction of the Federal Mine
Safety and Health Review Commission. The presiding administrative law judge
has the authority to hear this case and issue a decision regarding this case.
Tr. 11-12. The stipulations are adopted by the Court as findings of fact for purposes of
this temporary reinstatement proceeding.

41 FMSHRC Page 831

have hired him.2 [ ] On January 30, 2019, Complainant resigned his employment
with Respondent.3 He filed a discrimination complaint with MSHA. [ ] After
receiving Jason Ebert's complaint, MSHA supervisory investigator J. Cajetan
Stepanic conducted a discrimination investigation. [ ] Stepanic's investigation
determined that Complainant's complaint that on or about January 30, 2019,
Respondent discriminatorily forced him to resign from his employment as a
laborer with Respondent because he was related to an individual who had
repeatedly engaged in protected activities, was not frivolously brought. [ ] …
Application at 2-3.4
Based on the Court’s review of the four corners of the contents of the Secretary’s
Application and upon application of the relevant case law for evaluating such temporary
reinstatement applications, as set forth above, the Court has determined that the miner's
complaint was not frivolously brought. Complainant’s employment with Marshall Coal began on
January 28, 2019 and he was terminated from employment on January 30, 2019. Application at
2

Administrative Law Judge Kenneth R. Andrews recently examined prior decisions
regarding alleged discrimination against a miner for protected activity committed by a relative:
“[t]here is decisional support for the proposition that a miner is protected under
105(c) from retaliation based on the protected activity of a relative.” Sec'y of
Labor on behalf of Kizziah v. C&H Company, Inc., 14 FMSHRC 1362, 1366
(Aug. 1992)(ALJ Melick) citing Mackey and Clegg v. Consolidation Coal Co., 7
FMSHRC 977 (Jun. 1985)(ALJ Broderick); See also Sec'y of Labor on Behalf of
Flener v. Armstrong Coal Co., 34 FMSHRC 1658, 1665-1666 (Jul. 2012)(ALJ
Simonton)(rejecting a strict reading and interpretation of 105(c) that would
“require that the complaining miner be the only individual who is protected from
reprisal for complaining about a health and safety concern.”)
In one particularly well-reasoned instance, Judge Zielinski faced a substantially
similar situation: “[t]he central issue raised… is whether a discrimination action
can be maintained on behalf of Jimmy Caudill based upon his father's protected
activity.” Sec'y of Labor on behalf of Jimmy Caudill and Jerry Michael Caudill v.
Leeco, Inc. and Blue Diamond Coal Co., 24 FMSHRC 589, 590 (May 2002).
Kingston Mining, 37 FMSHRC 1282, 1294 (June 2015)(ALJ). Though not precedential,
the Court finds these ALJ decisions to be well-reasoned and persuasive.
3

That Ebert officially “resigned” does not cast the situation out of the realm of adverse
action. See, e.g., Simpson v. FMSHRC, 842 F.2d 453, 461 (D.C. Cir. 1988) (“[c]onstructive
discharge doctrines simply extend liability to employers who indirectly effect a discharge that
would have been forbidden by statute if done directly.”).
4

Government Ex. 1 was entered as an exhibit at the hearing. It is titled “Statement of
Jason Barrett Adkins,” but it is not signed by Mr. Adkins. The Court’s determination in this
matter did not rely upon the statement at all.

41 FMSHRC Page 832

2; Tr. 47. Based on the Application, for purposes of the frivolously brought standard of review,
Respondent discriminatorily forced the Complainant to resign from his employment as a laborer
with Respondent because he was related to Carl Ebert, who had repeatedly engaged in protected
activities. Id. There is a sufficient nexus between the protected activity and adverse action to
support temporary reinstatement. Sec’y of Labor on behalf of Shaffer v. Marion Cty. Coal, 40
FMSHRC 39, 43 (Feb. 2018).
ORDER
Having determined the Application was not frivolously brought, it is hereby ORDERED
that Respondent, The Marshall County Coal Company, reinstate Jason Ebert to his former
position at the same rate of pay and with all other benefits that he enjoyed prior to his discharge,
effective immediately upon issuance of this Order. This Order shall terminate by operation of
law upon the Secretary’s determination that a violation of section 105(c) did not occur, or upon
resolution of a complaint of discrimination filed under section 105(c)(2) of the Mine Act,
whichever occurs first.

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

Distribution:
Ryan Atkinson, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 170 S.
Independence Mall West, Suite 630E, The Curtis Center, Philadelphia, PA 19106
Christopher H. Rider, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 170 S.
Independence Mall West, Suite 630E, The Curtis Center, Philadelphia, PA 19106
Philip K. Kontul, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., One PPG Place, Suite
1900, Pittsburgh, PA 15222
Jason Ebert, 1619 Diamond Street, Moundsville, WV 26041

41 FMSHRC Page 833