March 1981
Commission Decisions
4-11-81
4-16-81
4-24-81
4-24-81
4-26-81

Indian Coal Land Co.
WEVA 80-5
Waukesha Lime & Stone Co. - Halquist Stone Co. VINC 79-66-PM
Old Ben Goal Co.
VINC 75-83-P
Standard-Sign & Signal Co.
PIKE 77-57
United Mine .Workers of America
WEVA 80-333-R

Pg.
Pg.
Pg.
Pg.
Pg.

605
606
608
613
617

Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
pg.
Pg.
Pg.
Pg.
Pg.
Pg.

622
623
625
633
638
640
665
673
676
678
692
704

:f'g.

7;.~

Administrative Law Judge Decisions
4-04-81
4-05-81
4-10-81
4-11-81
4-11-81
4-18-81
4-18-81
4-19-81
4-20-81
4-20-81
4-24-81
4-2'5-81
4-26-81
4-27-81
4-27-81
4-30-81
4-30-81
4-31-81
4-31-81

Mettiki Co~l Corp.
Monterey '.Coal Co.
Kaiser Cement & Gypsum
White Pine Copper Division, Copper Range Co.
Asarco Inc.
Kentucky Carbon Corp.
Sweet City Quarries
El Paso Rock Quarries, Inc.
Cyprus Industrial Mineral Corp.
Consolidation Coal Co.
Zeigler Coal Co.
Evansville Materials Inc.
T & W Sand & Gravel Co.
North American Sand & Gravel co.
Madison Granite Co.
Brown Brothers Sand Co.
Grundy Mining Co., Inc.
Whitely Developement Corp.
Mark Segedi, et al

YORK 80-125
HOPE 78-469
WEST 79-50-M
LAKE 80-139-M
WEST 80-303-M
KENT 80-145-D
SE 80-49-M
DENV 79-139-PM
WEST 80-19-M
WEVA 80-160-R
LAKE 80-292-D
LAKE 80-82-M
WEST 80-110-M
LAKE 80-349-M
WEST:\80-101-M
BARB 79-312-PM
BARB 78-168-P
KENT 79-366-D
'l"\T"t........ -

,... ....

-

-

717
723
726

734
744

Commission

Decisions

MARCH

The

following

Secretary

(Judge

of
Labor,
Broderick,

were

Directed

MSHA

v.

Default

Labor,
America,

of

for

Indian

Review

Land

Coal

5,

February

Dec.

White

MSHAv.

of

Secretary
Workers

19,

cases

Pine

WEVA

Company,

March:

of

month

the

during

80-5;

1981)
Company

Copper

Steel

United

v.

February

Broderick,

(Judge

LAKE

79-202-M,

80-24-M;

the

Following

Cases

during

the

Secretary

of

Labor,

WEVA

1981)

Review was
Ranger

Melick,
Magma
Carlson,
Secretary

(Judge
Secretary

Dodge
Richard

(Judge

in

Denied

v.
Corporation
28, 1981)

Fuel

March:

of

month

(Judge

79-218-R;

January

Company

Copper

of

February

Corporation,
Neal

Laurenson,

MSHA

Labor,

v.

WEST

Wayne

MSHA,

Labor,

of

WEST

(Judge

79-382-M;

1981)
MSHA

Labor,

Koutras,
of

Secretary

v.

4,

February

Allied

5,

1981)

and

United

80-134-M;

Boich

February

v.

of

Steelworkers

(Judge

W.B.
d/b/a
12, 1981)

HOPE

Corporation,

Chemical

Merlin,
Coal

America

February

Company,

LAKE

v.

12,

78-722-P;

Phelps
1981)

80-I05-D;

MINE

FEDERAL

AND

HEALTH

K STREET

NW, 6TH

SAFETY
1730

WASHINGTON,

SECRETARY

FLOOR

1981

LABOR,

OF

SAFETY

MINE

COMMISSION

20006

D.C.

Ii,

March

REVIEW

AND

HEALTH

Docket

(MSHA),

ADMINISTRATION

W-EVA

No.

80-5

Petitioner

V.

COAL

INDIAN

LAND

COMPANY,

Respondent
DIRECTION

The

Petition

for

of

Default

dated

the

Judge

Order
remanded
submission

to
to

the

Review

filed

February
for

Commission

REVIEW

FOR

further
dated

the

by
5,

AND

ORDER

operator

is

is

vacated

and

proceedings
February

in

1981

25,

light

The

granted.
the

case

the

of

is

operator's

1981.

-,"

A•. E..:

Marian

Law

on, *Commissioner

Pearlman

Nease,

Commissioner

81-3-4

FEDERAL

MINE

SAFETY
1730

AND
K

HEALTH

STREET

NW.

WASHINGTON,

D.C.

March

WAUKESHA

LIME

AND

16,

REVIEW

6TH

COMMISSION

FLOOR

20006

1981

STONE

COMPANY, INC.,

Docket

No.

VINC

79-66-PM

Docket

No.

VINC

79-I18-PM

Vo

SECRETARY
MINE

OF

LABOR,

SAFETY

AND

HEALTH

ADMINISTRATION

HALQUIST

(MSHA)

STONE

COMPANY,

INC.,

v.

SECRETARY

OF

LABOR,

SAFETY

MINE

AND

ADMINISTRATION

HEALTH

:

(MSHA)
ORDER

Further
the

decision

(D.

Wis.

prob.

1981),

administrative

proceedings

by

Court

1980),

•ris.
or

noted
further

the

Supreme
appeal
filed,
sub
order

nom.

by

49
Donovan
the

in

these

cases

stayed

pending
963
Supp.
4, 1980)(No.
80-901),
3531
Jan.
(U.S.
26,
are

•

in

Marshall

USLW

v.

(U.S.
49
Dewey,

3456

v.

•,
Dec.
USLW

493

F.

Commission.

•a•,•m•one
Fran;.••
r

rian

Pea•)i2,

q•06

Co•issioner

81-3-6

Distribution

Francis
Jan

Croak,

R.

Esq.
Esq.

Cook

&

Kearnery,
Franke,

S.C.

600

East

Mason

Street

E.

Milwaukee,

Binzak,

Esq.
Binzak,

and

Menomenee

S.C.

Wisconsin

McCord,

A.

Dept.

of

Office

of

the

4015

Wilson

Esq.

Justice

Solicitor

Va.

22203

Broderick

James

A.

Chief

Administrative

Law

FMSHRC
K

N.W.

Street,

Washington,

53051

Boulevard

Arlington,

1730

Inc.

Avenue

Appleton
Falls,

Michael
U.S.

Co.,

53187

Wisconsin

Kraemer
16800

Stone

708

Box

Waukesha,
Paul

and

Lime

Waukesha
P.O.

53202

Wisconsin

D.C.

20006

Judge

FEDERAL

MINE

SAFETY
1730

AND

HEALTH

STREET

NW, 6TH

K

WASHINGTON,
March
SECRETARY

OF

24,

COMMISSION

FLOOR

20006

1981

LABOR,

SAFETY

MINE

D.C.

REVIEW

AND

HEALTH

ADMINISTRATION

(MSHA)

Docket

Nos.

Petitioner

VlNC

75-83-P

VlNC

75-230-P

V-

OLD

COAL

BEN

COMPANY,
Respondent

IBMA

No.

76-86

DECISION

Mine

This

penalty

Health

and

proceeding
Act
Safety

1977)
(the
Act).
dismissed
judge
i04(c)(2)
orders

the

dismissed

related

After

and

Safety
we
follow,

an

in

Respondent
penalty

Ben's

of

proceedings
reasoned,
decision

and

those

proceedings

the

in

l__/Order No.
No.

Order

No.

Order

No.

Department

to

had

dated
dated
dated
dated

been

February
February
February
February
February
February

to

Withdrawal

and

MESA

orders
heard

cases

could

to
prejudice
proceedings.

moved
four

those

review.

on

dated

the

Company

in

I-HG,
I-HG,
2-HG,
I-HG,
I-HG,
I-HG,

No.

Coal

by

13,

law

violation

that

Order

agreed

Old

because

judge

in

The

judge

time
dismissed

before

review
final

the

penalty
ultimately

if

refile

continue

to

withdrawal

expected.

to

and

Enforcement

reasons

another

he

section

part.•/

considerable

a

Therefore,
MESA's
right

5,
6,
6,

of

were

be

the

For

r--emand in

Related

related

there

review

2/Notice

Mining

and

Coal

(amended

four

to

of

reverse

Federal

administrative

regard
The

that

the

the
with

d

the

(1976)

notices

decisions

without

successful

hearing,

of

801-960

four

orders

orders

109
§

assessment

Proceedings
Ben

however,
of

Order

Old

section
U.S.C.

penalty
proceedings.2/
(MESA) appeal•d.3/-and

proceedings

contest

for

part

Penalty

the

30

withdrawal,l/vacate

Administration
affirm

under

1969,
evidentiary

petition

of

their

arises
of

1974.
1974.
1974.
1974.

6, 1974.
Notice
No.
dated
7, 1974.
Notice
No.
dated
I-JWD,
December
12, 1972.
Notice
No.
dated
December
I-BP,
19, 1972.
this
8, 1978,
3/On March
case
was
on
before
pending
the
appeal
Secretary
of
Interior'sBoard
of
Mine
Operations
under
the
Appeals
1969
Act.
This
is
before
the
appeal
Commission
for
under
disposition
section
301
of
the
Federal
Mine
and
Health
Safety
Amendments
Act
of
30
U.S.C.
§ 961
1977,
(Supp. lll
MESA's
1979).
enforcement
transferred
were
responsibilities
to

and

MSHA

•/Because
of

withdrawal

is

of

Labor's

substituted
of

common
are

as

questions
treated

Mine

Safety
petitioner

the

of

jointly.

law

and
The

and

Health

in

this

(MSHA),

Administration

fact,

the

appeal.
appeals

notices

are

treated

as

to

the

orders

separately.

81-3-10

of

advantages
that

has

stay

of

previously
proceedings

of

policy

a

stay

would

Commission

This

matter

a

as

a

A

appropriate.

more

eliminate

would

and

ing

the

by

caused

passage

removing
The

his
the

gained
does

judge's

decision
to

for

petition

penalties

related

of

withdrawal

is

reinstated

and

remanded

I-HG,

2/6/74

notice

This

surfaces

not

area

was

by

section

alleged

that

float

return

air

courses

in

30

CFR

an

"active

of

violation

75.400.

318(g)(4)
in

worked

the

the

The

the

notice

this

that

showing

refiling

appeal

of

the

judge

subject
proceedings.

failed

MESA

occurred

accumulation

in

reversed.

is
four

the
further

because

the

outweigh

on
was
deposited
2,500
approximately
defended
by contending
by 30 CFR 75.400
6/
assumed
that
no
judge

for

Act.•/

vacated

refil-

rock-

dust

coal

Respondent
working"
required

of
and

area

of

burden

No.

be

of

to

by
not

docket

of

dusted

the

any

assessment

Notice

the

benefit

for

orders

attendent

resolve

hold

would
task

the

partiesof

to

from

dismissal.Z/

We

circumstances

problems

that

proceedings
Accordingly,

considerations.

these

the

relieve

believe

We

penalty

the

stay

advantages

a

instant

dis-

and

the
than

the

in

potential
any
of
time
necessary

order.

underlying

considered
rather

in

feet

in

the

cited

and

defined

miners
to

carry

"active

an

working."

area

that

the

was

traveled

that

these

uses

under

the

standard.

a

cited

was

an

escape

Coal

Notice

were

stored

in

75.1104.8/

This

standard

in

kept
Since

evidence

no

oil,

on

or

up

in

place

a

coal

2

"Coal

of

Mid-

IBMA

open
top
track
a

5-gallon

judge's

the

no

and

CFR

be

lubricating

a

was

30

grease
containers.

effective
fluid

hydraulic

of

violation
oil

less

hydraulic

of

cans

in

entry

lubricating

FMSHRC

dust,

loose

coal,

2777

other

combustible

and

accumulate

materials,

workings,

active

in

permitted
added].
[Emphasis
"'Active
Act
working'
provided:
to
miners
are
normally
required
to

deposited

dust

coal

float

1980).

9,

(October

2774,
including

be

not

therein."
the

where

mine

working

2/7/74

that

Corp.,

equipment

318(g)(4)

•/Section

find

We

active

an

notice.

the

and

of

510
(1974);
489,
(1972).
Accordingly,
further
proceedings.
3

other

or

shows

week,

a

once

periodically.

rock-dusted

that

presented

surfaces,
cleaned

electric

on

off

requires

vacated

rock-dusted
be

eight

Coal
Associated
75.400
provides:

CFR

shall

that

containers
was

judge

5/Eastern

•/30

metal

closed

the

a

least

257

for

crosscut

alleged

notice

This
fluid

at

particular

a

record

the

requirements

250,

I-HG,

No.

inspected

was

Corp.,

IBMA

remanded

and

reversed,

is

Steel
i

Co.,

working,

travel

and

Kaiser
Coke

&

and

route,
work

the

meet

be

to

of

alone

active

an

as

function

the

not

or
area

required

area
as

Continent

the

qualifies

mine

in

decision

whether

determining

Without

any

means

work

or

travel."

8/30
oil

CFR
and

grease
materials

prepared
in
kept
metal

75.1104

all
containers

Secretary."

"Underground

provides:
be

shall

of

fireproof
by the

approved

underground
or

in

areas

other

[Emphasis

no

less

Secretary,
a

coal
effective

supplied].

q09

mine

Except

containers

be

in

specially

for
oil

lubricating
shall

lubricating

for

places

storage

construction.

and

grease

closed

fireproof
approved

by

the

MESA
fluid

contends

was

presented

the

such
of

request

evidence

the

an

unresolved

time

of

the

hearing
as

of

the

(1974).
that,

In

finding

in

case,

affirmed.

available
the

that
ventilation

the

its

contents,

notice

find

that

To

trial.

appeal

on

that

such
MESA

matter,

should

deny

Respondent

notice
was

Camp Coal

Co.,

of

notice

we

failed

in

its

proper,
burden
of

Notice

No.

the

planWas

Also

notice

on

falls

Valley

an

afforded.

itself

fluid

have

MESA's

allow

would

value

hydraulic

MESA

within

of

the

IBMA

3

183-4
176,
holding
only

are

proof.

judge's

The

12/12/72

I-JWD•

violated
30
CFR
Respondent
75.316
by
the
plan.
itself
However,
plan
that
the
refused
Finding
Respondent
the
vacated
plan,
this
notice.
judge

evidence.
of

taken

hydraulic

vacation

its

While

this

whether

standard.

alleged
as

in

MESA

requirements

made

probative

to

the

this

with

comply

cited

is

MESA

first

whatever

issued

purview

decision

notice

have

we
However,
judge
during

the

to

rebut

to

at

oil.

judicial

opportunity

should

judge

lubricating

a

failing

to
not

was

stipulate

to

available

not

and
would
not
Respondent
stipulate
read
and
inspector,
remembered
having
the
testified
as
to
what
plan,
the
in
relation
plan
provided
the
to
alleged
His
non-compliance.
was
testimony
supported
and
by area
was
practice,
not
contradicted
Under
these
defined
by Respondent.
MESA
circumstances,
was
not
to
the
obligated
relevant
of
produce
the
to
part
plan
support
this
notice.
the
decision
Accordingly,
to
as
this
judge's
notice
is
and
remanded
for
reversed,
further
proceedings.
to

as

the

MESA

Notice
This

notice

alleged

the

mine

the

daily
reports
judge,
finding
countersigning
to
regulation

The
the
the
then

found

that

9/30

CFR

75.323

by
MESA

vacated

the

of

and

he

and

the

examinations

disclose

hazardous

persons
the
area

be,
to

in

section

superintendent
and

shall

countersign

read

for

create

from,

or

mine

hazardous

affected

104(d)

by
of

any
such

the

assistant

or

the

daily

that

neither

countersigned

assistant

the

mine

time

foreman.

involved

shall

read

examiner

and

assistant

promptly

the

weekly

conditions.
be

shall

from

person

conditions,
until
Act,

here

weekly

reports

' 10

as

those

person

danger

is

abated.

the

mine

shall

except

of

mine
report

such

shall

operator

of

countersign

reports
If

promptly.

entering,

such

and

Where

corrected
the

danger,

superintendent
and

in
had

time
no
limit
for
placed
assistant,
interpreted
such
The
signing.
judge

for

foreman

they

prevent

the

that

preshift
countersign

imminent

an

time

the

conditions,

9/

75.323

notice.

"The

provides:
daily
reports

conditions

CFR

superintenden--t

evidence

no

the

such

30

reasonable

a

presented

promptly
foreman,
covering

all

of
assistant

examiner
and
preshift
the
subject
regulation
the
his
or
superintendent

provide
and

12/19/72

BP,

the
that

unreasonable

was

the

nor

of

I

violation

a

superintendent

No.

such

the

persons."

withdraw
case

may

referred
The
also

mine
read

On

for

the

tendent's
for

appeal,

MESA

purpose
attention

of

such

reasonable

of

regulation
this
same
fact,
regulation
be
done
promptly.
neither

While

iO/

sion

that
reliance

reading

or

a

the

doing,
reading

we

so

and

In

No.

2/6/74
notices

of

2/7/74

and

No.

the

judge's

decision

and

No.

opinion.

four

withdrawal

12/12/72,

I-JWD,
and
With

I-BP,
remanded

respect

the
orders,
for
of
assessment
penalties
further
proceedings.

is

and
safety
allowing

judge's

for

further

penalty
decision

with

is

proceedings
proceedings
is

judge.

practices

in

case

Marian

10/30

U.S.C.

§ 863(v).

son,

Commissioner

Pearlman

Nease,

E./L•
4/

Notices
No.

reversed,

the

to

the
is

I-HG,

with

consistent
related

the

petition

remanded

/

A.

In
the

Notices

reversed,
the

to

respect

respect

evidence

any
the

to

decision

and

reinstated,

affirm

dilatory

With

the

of

absence

affirmed

12/19/72.

to

assistant's

his

we
or

judge's
is

the

In

signing

sacrificing
prompt
interpretation

the

to

other

statutoryproviboth
required,
corrected
promptly

or

in
and,
unreasonable,

desire

the

countersigning.

judge's

the

indifferent
reports.

reinstated

this

without

these

signing

be

conditions

was

condoning

supporting
countersigning

shift

working
be

may

..........

time

reasonable

a

all

superintendent's

signing

here

not

are

summary,

I-HG,

such

involved

period

its
the

accept

we

for

require

nor

for

Accordingly,

action,
for
period

such

period

expressly

hazardous
mine

to

next

While
time

no

certain

the

upon

reasonable

that

reports.

regulation

reported

signing.

corrective

health

-

all

provide
without

the

is

requirement
the
superin-

superintendent's

the

does

time

a

countersigning
in
question
reports
and
that
dispatch

provides

this

provides

the

be

would

execution

the

the

with

the

MESA,

that

bringing

countersigning

following
of

contends

Commissioner

for

Distribution

Thomas

A.
L.

Cynthia

Mascolino,
Attwood,

Office

of

U.S.

Department

4015

Wilson

the

Ben

125

South

of

Labor

Virginia
J.

Old

Solicitor
Blvd.

Arlington,
Edmund

Esq.
Esq.

22203

Moriarity,
Company

Esq.

Coal

Chicago,

Wacker

Drive

Illinois

Administrative

60606
Law

Judge

Charles

Leesburg

Pike,

10th

Floor

Center

#2

FMSHRC
5203

Skyline
Falls

Church,

Virginia

22041

C.

Moore,

Jr.

FEDERAL

MINE

SAFETY
1730

AND

HEALTH

STREET

NW, 6TH

K

WASHINGTON,
March

D.C.

24,

REVIEW

COMMISSION

FLOOR

20006

1981

MAYNARD

JOSEPH

Docket

v.

STANDARD

SIGN

&

COMPANY

SIGNAL

No.

l•iA

77-57

PIKE

77-48

No.

DECISION
This
whether

1969.

of

the

for

relief

assistant
several

notices

Maynard

also

of

issued

orders

that

responded
shift

coal

The

and

and

third

shifts

he

did

had

notices

and

issue

state

is

a

miner's

a

claim

upon

to

proceed

with

asked
the

orders

section

violations

of

accumulations,

he

the

ii0

of

16,
February
unabated,
supervisor
why he had
were
issued
Maynard
and
the
third
thought
then

fired

the

Maynard

1969

panel

not

he

because

violations.

loose

coal

violations.

on

company's

the

and

other

correct

of

production

that

was

of

to

violations

could

alleges
all

the
the

but

finding
by a

he

corrected

superintendent

correct

told,

what

violated

dust

on

was

He

an
Joseph
Maynard,
issued
inspector
1977.
i/
15,
February

mine

company
the
night

When

not

affidavit

by

which

rest.

cited

coal

Health

Mine

to

federal

and,

corrected

discharge

excessive

he

as

for

the

and

failure

would

returned

had

correct

the

asserts

could

withdrawal.

he

would
run

he

conditions

the

for

the

to

told

was

inspector
of

corrected

1/

he

that

states
Maynard
the
mine
1977,

had

violation

second

Coal

The
Seq. (1976).
erred
in
dismissing

and
accompanying
that
a
alleges

alleges

the

Federal
et

granted.

violations

because

the
§801

judge
discharge

of

be

application
foreman,

mine

whatever

under
U.S.C.
law

review

can

his

In

30

administrative

application
which

arises

proceeding

Act

Safety

Coal

•/

Act.

roof

control

board

covers

plan,
on

buggies.

2/

Section

ll0(b)(1)
No

criminate
criminated

against
against

sentative

of

miner
his

or

or

danger,

any

by

or

instituted

testified

or

resulting

from

provisions

miner

(A)

Act
in

or

be
or

of

reason

representative

(B)

Coal

to

cause

miners

authorized

1969

discharge

representative

or

or

the

the

of

shall

person

has

fact

notified
of

of

this

or

or

Secretary

alleged

any
this

represuch

that
the

violation

caused

Act,

dis-

way
dis-

or

authorized

any
the

filed,
instituted,
under
proceeding
any
is
about
to
in
testify
administration

other

discharged

has

the

provided:
any

tO
or

any
proceeding
enforcement

(C)

be

filed

has

of

Act.

q 13

81-3-11

The
which

moved

company
could

relief

Maynard

Mr.

section

discharged

not

the

Act.

because
he

cannot

has

of

of

construed

violations,

even

supervisor.

If
has

probably

failure

to

protect

of

action

the

the

stating:

violations
for
result

affidavit

somewhere,

of

purview

[Maynard]

abate

the

upon

motion

within

is

claim

a

the

employee

an

failure

of

state

admission,

own

allegations

cause

to

granted

himself

that

the

failure

judge

brought
By his
his

to

if

a

fDr
The

granted.

...

ii0

dismiss

to

be

and

his

failure

of

instructions
is

it

the

Act

to

ahate

by

a

[Maynard]

true,

are

but

was

not

this

in

tribunal.

the
dismissal
Following
moved
for
Maynard
reconsideration
arguing,
among
that
his
things,
did
state
a
application
of
cause
action.
He also
that
the
argued
was
to
Secretary
conduct
an
required
of
investigation
his
under
the
1969
Coal
complaint
that
he
had
failed
Act,
do
and
to
so
that
it
was
error
to
dismiss
his
to
such
complaint
an
prior
investigation.
the
to
Maynard
requested
the
judge
and
to
order
reopen
a
proceeding
factual
of
investigation
the
by the
Interior.
Secretary
The
3/
judge
denied
the
motion.
The
stated
that
he
judge
was
still
of
the
opinion
that
did
Maynard's
not
state
complaint
a
of
cause
action
and
that
neither
the
1969
Coal
Act
the
nor
Secretary's
the
investiregulations
required
gation
sought
by Maynard.
other

The

decision

the

matter

While
Division

of

1977,

expressing

into

the

upon

this

the

Federal

Mine

facts

offer,

Health

and

Safety,

sent

the

Secretary's

Mine

and

concur

in

the

judge's

to

state

a

claim

under

protected

when

in

We

also

required
complaints.

to

that

agree
conduct

and

under

Until

Interior.

an

Board

to

do

not

Coal

took

did

not

act

when

jurisdiction

our

effect.

30

the

application

Act.

We

U.S.C.

for

review

with

agree

light

most

favorable

come

within

the

perimeters

the

Secretary

to

the
the

Maynard,
of

the

ll0(b)(1).
the

1969

Act

investigation
established
by

procedure
an

Coal

administrative

review--satisfied

the

not

was

discrimination

of

law

the

of

the

Federal

1969

Coal

Act

His
501

were

transferred

took

the

in

before

the

section
us,

The

that

1969

prosecutorial-type
the

enactment

of

the

letter

a

conduct

to

Appeals.
Solicitor,
on
25,
July
investigation

Secretary--adwith
judge,

Secretary's

admini-

responsibilities

ll0(b).

enforcement
under

Operations
Associate

Board

1977

of

conclusion

under

a

judicial

section

Mine

Deputy
the

Act

the

complaint
by section

adjudication

strative

of

transferred

was

Health

viewed

the

Rather,

versarial

Board

1979).

III

activities

3--/

matter

Safety

even

the

to

willingness
Maynard's
complaint.

the

and

that
judge
allegations

Act

Secretary's

We

fails

to

the

underlying

§961(c)(3)(Supp.

of

appealed
pending

was
was

effect.

of

enforcement
the

30

U.S.C.

and
Safety
responsibility

the

functions,
Coal

1969
to

Mine
was

the

Act

and

of
Secretary
§961(a)
(Supp.

Health

those

except

those

expressly

Labor

when

III

Act

of

1979).

of

1977,
Secretary
to
him
assigned
the

transferred
the

1977

Mine

We

that

however,

note,

Maynard's

of

vestigation

Secretary's
Secretary's
participation
offer

the

Accordingly,
review
remand

We

plaint
a

the

60

valid

•¢•red

in

he

if

may,

the

to

adjudicatory

proceed

to

establish
on
prevail
adjudication

an

he

one

the
on

the

is

party

merits.

A

public

fault

of

of

his

own.

Maynard

to

amend

facts

which

is

able,

so

the

intervening

the

factual

chaff•

E.

entitled

was

of

his

hearing
contemplated
evidentiary
hearing

that

no

his

for

•J
com-

do

state

the

period,
investigation

letter.

1977

that

the

denied

was

the
cases

leave

undertake

dismissal

to

theapplication
be
can
granted.

Marian

to

respect
discharge

relief

In

A.

claim

that

with

which

he

ll0(b).

mindful

and

dismissal

Ri

Maynard's
4/
hearing"
prior

policy

in-

an

are

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Maynard
through

upon

if

chooses,

25,

July

that

afford

allege,

section

under

claim

Secretary

days

claim
to

conduct

to

discrimination

judge's

the
a

however,

case,

within

change

in

investigation

state

to

yet

and

Act,

an

affirm

we

failure

for

Coal

such

a

offer
extant.

unlawful

in

of

benefit

is

complaint
represented

1969

the

under

brought
possible

Secretary's

the

entitled

"public
record.

•

'a

••Cqh

•

....

La•?n,
lommissioner
Commissioner

Nease,

Pea•an

to,

but

denied

is
without
application
need
ll0(b)
by section
if
and
prior
pleadings
or
by law
undisputed

hearing"

irm•/

a

in

this

context

"public

a

The

merit.
of

not,

course,

procedures
facts
is

to
an

Distribution

L.

Thomas

Center

Galloway,
for

1751

N

Law

&

Street,

Policy

N.W.

Washington,
Michael

Esq.
Social

D.C.

20036

T.

Heenan,
Esq.
Smith,
Esq.
Smith,
Althen
&
Heenan,
iii0
Vermont
N.W.
Ave.,
D.C.
Washington,
20005
David

S.

Cynthia

L.

Thomas

A.

Attwood,
Mascolino,

Office

of

the

Department

4015

Wilson

of

Labor

Blvd.

Virginia

Administrative

Esq.
Esq.

Solicitor

U.S.

Arlington,

Zanoli

22203

Law

Judge

Charle•

Leesburg

Pike,

10th

Floor

Center

#2

FMSHRC
5203

Skyline
Falls

Church,

Virginia

22041

C.

Moore,

Jr.

1730

HEALTH

K STREET

NW, 6TH

WASHINGTON,

CONSOLIDATION

COAL

FLOOR
20006

D.C.

1981

26,

March

COMMISSION

REVIEW

AND

SAFETY

MINE

FEDERAL

COMPANY

v.

Docket
OF

SECRETARY
MINE

WEVA

No.

80-333-R

LABOR,

SAFETY

HEALTH

AND

(MSHA)

ADMINISTRATION

:

and

UNITED

MINE

OF

WORKERS

AMERICA

(UMWA)
DECISION
This

proceeding

(Consol)
violation

1977,

of
30

On

The

24,
was

is

UMWA

selves

to

miners

for

advised

the

by

the

he

under
the

the

MSHA

inspection

permit

the

International

not

Consol

been

submitted
to

issued

a

and

Those

regulations
pertaining

in

MSHA

the
of
of

the

act;

require,

of

limitation."

were

identified

themof

An

the

MSHA

inspector
representatives

safety
safety
to

director
the

enter

to

admit

Consol

as

"representatives

in

30

subsequently
103(f)

section

among

"[a]

and

or

miners.

them

an

order

of

the

mine,

because

their

Part

CFR

for

of

i_/

40.

failure

1977

Mine

to

Act.

part:

representative
the

local.

committee,

mine

regulations

other

to

position"

the

safety

Consol's

and

The

UMWA

of

103(f).

of

(MSHA)

the

International

representatives
with
to
manager,
copies
operators
is
"the
of
name
the
required

official

of

a

Act

inspection.

an

union

required

abate

Act).

Administration

section

Secretary's

of

Mine

Division,
as
representatives

UMWA

not

citation,

1977

representatives
to

violation

a

Safety

Health

who

team.

was

the

to

and

representative
local

Company

failure

committee

inspectors

wanted

that

Mine

Safety

MSHA

purposes

that

i/

statement

the

the

for

1979)(the

safety
bargaining
of

Coal

issued

the

request
International

and

charging

as

conduct

requested

provides

named

Health

to

mine

section

purposes

and

Safety

That

or

III

walkaround

MSHA

formation
district
information

(Supp.

Mine

pursuant

abate,

seq.

et

UMWA

ground

miners"

Federal

Consol's

Consol

had

names

the

collective

Consol

the

of

1980,

at

to
accompany
refused
to
on

103(f)

at

the

Also

present,
members
of

withdrawal

§801

arrived

Consolidation

of

section

April

when

order

an

U.S.C.

inspectors
inspection

initiated

was

contested

if

the

miners
of

is

the

the

certain

filed

person

the

mine.

"title

his

or

position
for

authority

is

MSHA

Among

or

representative
and

in-

with

affected

representative"

representative's
30
CFR
§§40.3(a)(i)

q17

that
be

the

that

statement

miners

things,

of

all

limited,

a

(4).

81-3-16

Subject
the

regulations

tO

and

an

opportunity
during

given

representative
made

mine

Secretary

contested

the

representatives
entitles

an

section
violation

The

affirm

we

40

Part
Part

of

miners

1978,
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received

again
of

to

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sentatives

Act.

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have

in

the

plays

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miners"

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to

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identified

basis,

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representatives

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failure

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however,

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still

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with

(6)

preamble

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several

shall
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representative

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we

1978,
safety

22,
its

of

constituted
filing
7, 1978)(paragraph
the
UMWA
1979,
local

wish."

March

members

effect.

so,

regulation.

81

was

do

to

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indication

intent

an

81

listed

clear

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headed

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(July

Committee

personnel,

section

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assisting
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the
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safety
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1948
for
(1979),
petition
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We are
26, 1979).
not
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file

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enforcement

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party

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Magma Copper
Co,
review
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Cir.
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filed,
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of

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provision

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participation
held
disagreed,

judge

the

entry

as

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refusing

law

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regulations

argues

the

the

1969

walkaround

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(a)

walkaround

persons

requirements

personnel

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any

that

be

authorized

can

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filing

40

of
shall

coal

permit
representatives

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on

contained

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day it
filed
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the

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took

81

CFR

of

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representative

subsection

one

inspection,

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than

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to

occurred,

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citation

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inspection

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aid

number

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promulgating
language

in

the

of

clear

a

the

filing

Part

40.

regu-

/

light/of

In
a

the

representative

operator

to

103(f).

This

an

operator

who

failed

cular

that

is

not

to

absent
for

basis
of

representative
that

lacked

it

division

to

a

personnel

say

persons
of
the

there

filing,
believing

an

operator

that

they

and

why

judge

is

affirmed.

they

however,
the

purported

to
was

its

mine.

The

40

identify
preamble

miners'

requirements
filing
representatives

to

40

noted,

exercise

many

his

duties

Part

Part
of

representatives."
40

Secretary,
in

the

103(c),

43
among
and
to

serves,

processes

103(g),

other
assure

Fed.

the

were

for

the
29508

Reg.

things,
such

contemplated
105(b),
105(a),

"requires

Act

under

section

where

In

faith

be

well

and
aware

a

parti-

person

lack

makes

a

claim

no

safety
authorized

were

of

who

the

these
decision

ji•o•s

promulgated
103(f)
purposes.
the

a

International

Accordingly,

not

to

authorized

an

Consol
U•qA

••s•e
3/

section

circumstances

fact

in

as

an

participation

that

Consol
at

were

entitle

se

requirements.
in
good
may
is

file

to

person

under
be

person

case,

believing

who

Indeed,

were

a

this

a

per

never

may

filing

were

not

walkaround

40's

for

does

participation

Part

In

of

failure
40

refuse

representatives.

miner

that

miners.
basis

that

Part

walkaround

person

legitimately
with
comply

situation,

hold

we

under

miners

deny
can

reasonable

above,

of

s

merely

of
Secretary
in
with
Act
cooperation
(July
7, 1978).
Filing

i one

r

to
As

Labor

the
to

miners'
under

Part

such
to
the
representatives
identify
be
that
will
included
representatives
they
sections
Act.
101(e),
See,
by the
e.g.,
107(b),
109(b),
305(b).
105(d),
107(e),
to

Distribution

Samuel

P.

Skeen,

Consolidation

Coal

1800
Washington
PA
Pittsburgh,

15241

Esq.
Esq.

Kramer,

Office

of

U.S.

Department

4015

Wilson

the

Solicitor
of

Labor

Blvd.

Virginia

Arlington,
Mary

Road

Attwood,

Cynthia
Stephen

Esq.
Company

Lu

Jordan,

15th

St.,

22203

Esq.

UMWA
900

Washington,
Chief

N.W.
D.C.

20005

Administrative

Law

FMSHRC
1730

K

N.W.

Street,

Washington,

D.C.

20006

Judge

James

A.

Broderick

Administrative

Law Judge

Decisions

FEDERAL

SAFETY

MINE

OFFICE

AND

ADMINISTRATIVE
LAW

2

SKYLINE,
5203

MINE

OF

10th

FLOOR

LEESBURG

PIKE

CHURCH,

VIRGINIA

JUDGES

MAR

Penalty

1981

.4

Proceeding

HEALTH

AND

(MSHA)

ADMINISTRATION

COMMISSION

22041

Civil

LABOR,

SAFETY

REVIEW

OF

FALLS

SECRETARY

HEALTH

Docket

,

A/O

Petitioner

No.

80-125

YORK

18-00652-03024V

No.

V.

Gobblers
COAL

METTIKI

Knob

Mine

CORPORATION,
Respondent
DECISION

Covette

Appearances:

Rooney,

Ralph

M.

P.A.,

500

Burnett,

The

above-captioned
the

At

moved

tive

her

petition

a

of
the

transcript

that

case

of

violation

inspector's

&

Crawford,
for

Maryland,

Respondent,

Accordingly,

the

government

Indeed,

any

could

only

have

the

Solicitor's

the
of

assessment

As

is

was

well

failed

to

Based

of

based

motion

was

administrathe

upon

facie

prima

a

the

showing

factual
and

speculation

upon

from

granted

for

penalty
the

in

taken.
make

3,

Solicitor

civil

a

forth

set

determination
been

February

on

testimony

75.200.

CFR

motion

the

involved

surmise.

Eiswert

scheduled

as

inspector's
for

30

existed.

circumstances

heard

was

the

Solicitor's

testimony

violation

Burnett,
Oakland,

Market

MSHA;

Corporation.

conclusion

withdraw

to

alleged

3535

Merlin

Judge

1981.

the

Coal

U.S.

Solicitor,
14480-Gateway
Bldg.,
for
Pennsylvania,
Petitioner,

Esq,,
Center,

Thayer

the

of

Room

Philadelphia,

Mettiki

Before:

Office

Esq.,
Labor,

of

Department
Street,

the

bench.

Upon

the

and

The
and

of

receipt

reviewed

the

matter

hereby

is

the

withdraw

to

this

transcript

from

motion

Solicitor's

this

administrative

determination

bench

is

the

petition

matter

hereby

AFFIP•D.

is

hereby

again

was

GRANTED

DISMISSED.

Paul

Merlin

Assistant

Chief

Administrative

Law

Judge

Distribution:

Covette

Rooney,

Labor,
19104

PA

Ralph

Room

M.

Center,

Office

Esq.,

of

the

14480-Gateway
Bldg.,
(Certified
Mail)

Burnett,

Oakland,

Esq.,
•

Solicitor,
3535

Burnet•,

Eiswert

21550

(Certified

U.S.

•rket

&

St.,

Crawford,
Mail)

of

Department

Philadelphia

P.A.,

500

Thayer

FEDERAL

SAFETY

MINE

OFFICE

OF

SKYLINE,
5203

COMMISSION

LAW JUDGES

lOth

FLOOR

LEESBURG

PIKE

CHURCH,

FALLS

MAR

VIRGINIA

COMPANY,

COAL

REVIEW

ADMINISTRATIVE

2

MONTEREY

HEALTH

AND

:

Contests

:

Docket

of

19t)t

5

22041

Citations

Contestant

HOPE

78-469

:

HOPE

78-470

:

HOPE

78-471

:

HOPE

78-472

HEALTH

:

HOPE

78-473

(MSHA),

:

HOPE

78-474

:

HOPE

78-475

:

HOPE

78-476

Vo

LABOR,

OF

SECRETARY

SAFETY

MINE

AND

ADMINISTRATION

WORKERS

MINE

UNITED

OF

(UMWA),
Respondents

AMERICA

GRANTING

and

Michels,

for

its

right
In

of

view

Michels'

Judge

further

adjudication,

disposition
the
directing

of

for
and

o

the

inform

frame

for

thescheduling

which

may

be

Any

additional

motion

litigation

to

withdraw
was

1981,

18,
its

pending

the

to

contests
the

on

and

a

1981,

13,

time

hearings

additional

any

me

following:

the

tried

be
of

information

of

in

the

parties

on

enable

to

as

so

may
to

me

cases.

to

response

Secretary

which

dispositions

or

the

by

contemplated
dispose
timely

February

order

an

to

as

to
assigned
adjuciation

timely
January

required.

be

On

issued
me

to

Commission.

the

were

the

the

1980,

before

cases

under

Appeals

prejudice

raised

the

further

17,

without

insure

to

remain

that

issues

issues

order

in
I

cases,
to

premature

the

retirement,

and

parties
The

i.

of

13,

for

of

Court

November

on

as

P.

November

petition

a

Circuit

and

decision,

petition

filed

Company

Franklin

On

him

to

cases

Fourth

the

review

further

seek

to

the

Coal

with

Act

Monterey's

dismissed

remanded

1979.

15,

February

on

Judge

by

adjudicated

were

Monterey

Commission's

the

of

review

Court

reversed

and

the

of

106(a)(1)

section

decisions

Subsequently,

proceedings.

Proceedings

cases

his

issued

he

Commission

the

1979,

review

consolidated

These

CONTESTS

OF

the

of

Statement

WITHDRAW

TO

MOTION

NOTICE

DISMISS

AND

Mine

Wayne

:

ORDER

Nos.

the

my

ground
promulgated

order,

filed

contestant

while

that
new

its

regulations

a

court

regarding

of
imposition
liability
them
under
or
their
by
those
have
regulations
before

contestant

that

it

has

Contest
of

be

and

On

February
that

need

that

made

from

I

decide

that

on

its

be

additional

1981,
it

for

and

Inc.,

have

the

violations

its

caused
fact

that

the

contestant

filed

asserts

105(d)

the

are

UMWA

of

Notice

withdraw

these

response

to

notices

that

states

in

required,

and

any

additional

briefs

if

MSHA

filed

does

not

they

should

reached

settlement

a

in

its

does

not

to

be

required.

to

response

the

my

withdraw

to

fact

the

that

Frontier-Kemper
the

civil

penalties

that

has

payment
contestant's

the

oppose

should

intend

motion

of
and

questions,

may

that

documentary

not

the

believes

Michels,

submit

opposecontestant's
that
considering
independent
contractor,

it
dockets

submit

or

facts

these

it

order

my

additional

any

by me
Judge

before

are

to

its

there

decision

respondent

MSHA

violations,

withdraw

to

made

asserted

Monterey,

those

motion

UMWA

and

does

MSHA

contests.

for

§

Further,

willing

that

assessed

by

these

that

witnesses
be

would

27,

Contractors,

litigated

dockets,

believe

hearings

stated

Secretary,

the

these

its

vlolatlons

Given

pursuing
that

record

present

February

and

45.

issue

respondent

not

litigated.
adjudication

the

but

On

Part

major

in
in

requests

1981,
does

additional

any

evidence,

order

18,
it

to

be

put

and

further

any

the

for

contractors

C.F.R.

granted.

stated

which

resolved

interest

proceedings,

contest

30

Commission

the

further

no

independent

on

control,

made

been

motion

to

contests.

ORDER

In

of

view

presented

by

withdraw

its

the

the

foregoing,

parties

in

is

contests

and

consideration

upon
to

response

and

GRANTED,

my

they

of

the

contestant's

order,

arguments
motion

DISMISSED.

are

Distribution:

M.
Timothy
Biddle,
DC
Washington,

Lawrence

W.

4015

Wilson

Esq.,

Moon,

Esq.,

Blvd.,

Mary Lu Jordan,
Esq.,
(Certified
Mail)
William

H.

Washington,

Howe,
DC

Crowell

U.S.

of

22203

VA

900

Esq.,

Loomis,

20006

(Certified

ii00

Connecticut

Labor,

Office

Ave.,

NW,

the

Solicitor,

Mail)

Department

Arlington,
UMWA,

Moring,

&

(Certified

20036

15th

Owen,

St.,

Fellman

Mail)

q24

(Certified

of

Mail)

Washington,

NW,

&

Howe,

2020

DC

K

20005

St.,

NW,

to

FEDERAL

SAFETY

MINE

AND
333W.

HEALTH

COLFAX

REVIEW

AVENUE

COLORADO

DENVER,

COMMISSION

80204

|0
SECRETARY
AND

SAFETY

MINE

LABOR,

OF

(MSHA),

ADMINISTP•TION

HEALTH

188,!

Petitioner,

PROCEEDING

CIVIL

PENALTY

DOCKET

NO.

•ST

79-50-M

DOCKET

NO.

WEST

79-197-M

VQ

A/O
CEMENT

KAISER

and

04-04075-05002

NOS.

04-04075-05003

GYPSUM

AND

CORPORATION,
Plant

Cement

Permanente

MINE:

Respondent.

Appearances:
Andrea

Robinson,

Office

of

United

States

For

Kaiser
800

Esq.

Corporation
Drive

Lakeside

California
For

John

Labor

itioner

Cement

Oakland,

Before:

of

Department
pet

Lewis,

Cora

Esq.
Solicitor

the

respondent

Carlson

A.

Administrative

Judge

Law

DECISION

consolidated

These

December,
mandatory
Act

of

inspection

1978

petitioner

safety
1977,

30

of

§

801

San

et

Francisco,

seq.(the

under

"Act").

the

California,

Federal

from

arose

Plant.

Cement

Permanente

citations'charging

promulgated

standards
U.S.C.

in

respondent's
twelve

issued

Secretary

tried

cases,

The

violations

of

Mine

Safety

various
and

Health

a

At

the

relevant
is

of

would

not

stipulations
violations

that

establish

violation.

reaffirmed

here.

for

assessment

its

contest

decide

will

Review

The

motion

and

374882

citations

penalties

where

Commission's

the

to

374869,

investigation
lacked
petitioner
was
at
orally
granted
will

be

vacated

374872

374870,

consultation

of

sufficient

the

with

proof

trial,

and

and

counsel

and

to

action

that

is

proposals

attendant

dismissed.

are

moved
time,
for
proposed

same

made

upon

of

under

Commission

citations

the

record

these

in

the

amounts

discussion

of

the

evidence

Rule

374874,
concerning

citations,
proposed

assessed

19,
at

Wall

Unguarded

--

December

standard

30

1978,
§

U.S.C.

the

by

presented

withdraw

to

and

374876,

374877.

gravity,

good

granted.

was

The

Secretary.
the

on

ii

the

motion

the

five

remaining

be

Sarja

issued

56.11-12

which

provides:

above,
which

protected

•ere

it

tective

the

third

level

Opening

inspector

Openings
through

In

These

assessing

that

elements

be

business.

stipulated

and

citations

the

in
in

follows.

CITATION

On

shown

the

abatement

citations

the

had

penalties
representations

and

dismiss

to

further

that

at

of

moved

then

remain

cases.

penalty

Respondent,

faith,
penalties

these

Those

of

Following

Permanente

and
that
good;
the
of
to
impair
ability
respondent
were
and
will
be
considered
approved
affirmed.
The
are
further
parties

Secretary
representing
personnel

enforcement

the

several
to
of
facts
the
parties
stipulated
It
was
that
penalties.
agreed
respondent
is
that
its
operation
large;
prior
of
assessment
the
proposed
penalties

the

is

to

The

of

company;
violation

jurisdiction

374881,

hearing
appropriate

the

assessment

large

a

history

of

outset

to

men

below,

or

or

materials

by railings,
is
impractical
devices,
adequate

shall

be

of

respondent's

citation

a

of

travelways

near

may

barriers,

shall

fall

covers.

or

install

such

warning

signals

to

violation

for

pro-

installed.

number

6

mill
noted
an
inspector
Sarja
feet
wide
and
5 feet
bottom
of
The
opening,
approximately
high.
the
was
2
feet
above
floor
and
to
opening
approximately
level,
according
Sarja,
would
allow
a
worker
to
30
feet
some
should
fall
into
he
the
The
drop
opening.
maintained
that
the
blower
situated
the
inspector
on
servicing
anyone
large
third
level
would
work
close
the
assertions
to
These
were
by and
pass
opening.
disputed.
nowheredirectly
exterior

wall

4

Respondent

limited

most

maintenance

would

than

the

that

blower;

its
be
the

defense

to

testimony

that

the

required)

was

situated

much

farther

required

a

blower

itself

q26

filter

(on

separator
from

change

the

only

which

opening
every

other

week;

were

intended

The
blower

and

replacement

as

a

in

raised

matters

the

Upon
This
the

had

whole
I

by

respondent

by

is
chiefly
and
opening,

do
the

one

removal

not

bear

of

duration
of

which

of

would

been

have

the

most

stipulated

brief

modest

a

and

infrequent

evidence

that

respondent

intended

Hill

Walkway

Guardrail

1978,

inspector
on
missing
mandatory

lack
to

factors

were

of

penalty
fatal.
likely

is

$90.00

discussed

elements

penalty
penalty

$90.00

could

and

relevant

are

These

proposing

the

blower

exposure
--

violation.

in

proposed

the

worker

of

the

near

louvres

the

upon

the

that

because
the

in

it

by any worker
opening.

wall

--

including

record,

so

the

Secretary
occurred,

convinced

am

louvres

the

the
vicinity
filter
required

in

floor

whenever

misstep

A

through

but

determination,
penalty
considered
presumably
where
an
accident,

removed

had

The

blower

the

fall

negligence

operator

previously,

to

maintenance.

long

a

air,

added

get

violation.

travelway

other

or

direct

to

opening.

the

establishes

resulted

The

of

cover

evidence
served

have

workers,

that
to

appropriate.

presence
that
the

of

citation

charging

that

the

drive

C.F.R.

§

workers

opening

near

be

covered.

CITATION

374871

On

December

section
end

of
of

Ball

12,

guardrail

ball

a

-

was

mill.

The

issued

Sarja

J.

elevated

an

standard

a

adjacent
walkway
violated,
allegedly

to

30

a

provides:

56.11-2,

elevated

Crossovers,

of

be

Where

ramps,

substantial

and

handrails,

condition.

elevated

walkways,

shall

stairways
with
provided
and

necessary,

construction

maintained

in

good

toeboards

shall

be

provided.
Inspector
metal

guardrail

mill

(Tr.

he

chains

to

the

took

Sarja,
photograph

in

in
was

those

the

rebuttal,
missing
chains

time

time

the

of

suggested
at

the

exactly."

tile

the

that

time

of

considerable

He

portion
inspection,
also

I).

acknowleged

the

(Tr.
of
and

gap

in

the

ball

contributed
testified

and
that
47);
were
walkway

two

71).
the

rail

said

he

that

the

a

introduced

Schultz

(Tr.

across

a

to

controversy

by and
supervisor,

citation"

a

of

leading

taken

exhibit

height
railing
inspection"

approximate

at

of

because

walkway

continued,
however,
A photograph
regional
safety

"the

at

citation

the

elevated

the

(respondent's

controversy

photograph

of

edges

physical
respondent's

issued

he

that

facts.

that

hanging
at
place

shown

"already

"remember

hearing

Schultz,

substantially
that

As
the

Donald

through

the

13-16).

concerning

arose

testified
Sarja
protecting

shown

in

could

not

chain

the

"may

have

been

before"

there

between

(Tr.
of

photographs

subject

the

of

question
was
walkway

the

evidence

the

ball

mill;

by

that

shows

short

a

mill

the
point
alleged

and

an

inspector
unguarded

became

occurred

if

confused
which

armature

was

(Tr.91).

becomes

then

blocked

another

At

ball

citation

another

The

the

89).
the

whether

chains.

the

existed

space

that

guardrails

permanent

open

violation

any

conclude

I

meets
small
a
concrete
walkway
platform.
42).
(Tr.
(In
this
the
regard
photograph
because
metal
a
of
the
misleading
portion
extension
an
of
the
guardrail.)

did
the

on

did.

none

not

side

guard

I]

the

over

the

mill

of

way

to

as

much

the

conceded

exhibit

to

review

where

witness

[respondent's

entrance

all

extend

left-hand

Respondent's
mesh

the

Careful

be

can

be

to

appears

testified
Respondent's
without
contradiction
safety
supervisor
that
the
had
function
no
to
allow
access
to
the
ball
walkway
mill
for
except
No
repair.
could
take
he
unless
repair
the
mesh
place,
said,
was
and
large
guard
removed,
to
this
build
must
accomplish
a
wooden
carpenters
(which
temporary
platform
would
have
its
own
presumably
the
rails
the
perimeter
on
guarding),
beyond
(Tr.
48-49).
walkway.
all

When

he

that
on

the

no

mention

of

itself

greater
either

of

"walkway."

The

inspector's

entrance

to

view

In

must

is

considered

recollections

of

it

becomes

facts.

His

together,
the

physical

clear
notes

introduced

without
objection.
These,
however,
the
citation
itself
made-no
originally
issued,
chains
or
instead
it
refers
to
section
guardrails;
a
missing
As
amended
two
it
referred
to
days
later,
missing
"guardrail."
notes
include
a
removable
a
chain
across
the
drawing
showing
with
this
notation:
"12-20-78
removable
chain
walkway
provided
were

certainty.

As

"

here.

of

the

testimony

independent

firm

citation

provide

inspector's

the

lacked

of

respondent

inspection,

and

conclude

that

's

evidence

that

the

inspector's

admitted

the

chains

across

were

the

chains

at

present

were

uncertainty

as

to

that

the

time

fact,

one

walkwayl/.

the

i/

Respondent's
be
since
might
end,

but

Secretary;
actually

witness
it
the

not
and

hung

used

leaves
other.

given
across

"in
This
is
phrase
place."
that
the
chains
possibility
burden
of
violation
showing
is,

the
open
The

a

the

lack

the

walkway's

of

any

credible
entrance,

evidence
we

were.

q28

are

not
were

precise

as

attached

however,

that

the

obliged

to

chains
assume

it

as

at
upon

one

the

were

not

that

they

Sarja
appears
his
in
noting
with
accepted

Inspector
abatement,
chain

was

violation

would

protection

than

direct

precautions

were

not

taken

established

and

there

can

374875

CITATION

December

On

standard

the

persons

be

guarded.

Specifically,
screen
covering
the
at
opening,

walkway
by two

guardrails

(photograph

respondent's

the

at

88).

(Tr.

his

of

time

visit

admitted

The
the
not

chains

The
of

means

chains

guard

protected

protection;
up._/

were

armature
a
posed
guarding.

to

from

the

not

when

the

as

maintained

that

have

rotating

been

so

in

did

°

standard
that

however,
floor

the

on

was

72-73).

(Tr.

employees

expose
when

on

chains

the

were

violated.

was

place.

duty

that

chose

Respondent
insure

to

contends,

Secretary

inspector
as

a

mechanical

was

insulated.

threat

of

one.

That

mechanical

the

unguarded

the

that

other

or

screen

a

here

circumstances
Even

a

the

mesh

double

issue

need

not

injury

and

therefore

screen

chain
could

was

have

a

been

posed

area

an

decided.

be

when

fixed

a

that

lacks

barrier
removed.

clearly

constituted

guardrail

would

chains

are

merit.

substantially

of

form

some

place,

in

the

that
armature

The

required

hazard

electrical

contending

this,

Respondent

denied

whether
seemed
unsure
chains,
inspector
that
and
only
a--dequate protection,
suggested
be
to
The
92-93).
(Tr.
appeared
implication
with
That
be
removed
ease.
position
they
may

rail.

other

armature

3/The

a

the

height,

knee

respondent's

therefore

Otherwise,

may

of

height
testified,

the

This

driveshaft,

enclosed

and
the

Sarja

missing

mill.

finish

a

in

existed

opening

for

at

and

standard

the

one

was

floor

shall

motor

2).

this

persons

motor

exhibit
was

contacted

wedge-shaped

a

drive

that

necessary.

was

The
2/
a--s well

no

it

injury

that

be

may
to

of

violation

pertinent,

here

as

which

parts

that

from
extending
opening,
to
injury
adjacent
walkway
in
place.2/ Consequently,

is

for

citation

a

large
the
paralleling
chains
s•spended

chain

one

Schultz

Mr.

a

issued

provides,

cause

shows
a

barricaded

ordinarily

was

of

additional

violation

no

is

there

Because

use.

such

that

Motor

Sarja
which

may

of

armature

edge

blill

machine

which

evidence

the
the

walkway
acknowledged
adequate

provide
in

was

unfastened
lines.

further

could

removable

a

was

safety

He

down,

were

Finish

inspector

and

by

4B

moving

exposed

...

chains

the

chain

chained-off

the

that

to

§ 56.14-i

C.F.R.

wore

that

penalty.

no

of

1978,

12,
30

at

when

be

Guarding

-

walkway

employees.
extended
guardrails
down
and
the
walkway
or
circumstantial,

was

evidence,

the

adequate

as

citation

when

so,

hazard

fully

chain

the

affirmative

no

correctly

and

present

other

the

on

chains

the

the

on

that

workers

acknowledged,

when

accepted

"reservation"

the

actionable

no

methods

that

ultimately
action"
"subsequent

unless

occur

thus

He

presented

have

to

an

suffice

enough

not

Under

because

the
as

effective

as

now

consider

since

the

We

likely
therefore

penalty.

offered

walkway.

Even

directions

to

strike

the

should

penalty

the

exposed

known

that

and

December

On

violations

of

56.12-23.

That

should

374884

Electrical

of

The

bus

in

be

assessed.

of

inspector

Sarja

electrical

was

concerned

in

some

located

their

maintained

Sarja

of

be

segment

several

armature

chains

of

the

possible

not

size,
I

Electrical

Components
citations

two

published

standard

other

and

determine

the

issued

and

obvious,
in
place.

was
were

of
findings
decision,

of

Guarding

--

panels

generators,

should

short

one
one

the

tile

outset

resistor

and

to
impractical
is
protection
provided

bar

openings

had

with

the

connections

inspector

The

number

of
barrier

or

unless

but

he

It

that

for
30

at

a

alleged
§

C.F.R.

provides:

standard

difficult

in

area

along
at

19, 1978,
mandatory

the

traversing

fall

the

factors

$114.00

374883

CITATIONS

unless

not

was

level.

armature.

stipulated
of

possible,
knee

at

was

worker

while
to

while

armature

passing

a

have

hand,

these

injury,

the

fall

have

matters

statutory

to
or

would

he

then,

Considering
civil

hazard

stumble

to

Other

the

On

respondent

of

part

little

enough

unfortunate

Significant

unprotected

these

several

were

be

direct
room

the

on

which

covers

that

that

that

shall

current

and

some

the

and

generators

a

unguarded.

were

floor

exposed
"connections"

are

guarded

location.

by

electrical

an

grids

insulate

on

armatures

could

and

elevated

an

platform,
Inspector

brushes.

and

transmit

lethal

a

shock.4/
The

bus

testified

bars,

fatal,

and

I

4/
of

issue

provided

was

's

Respondent
240

electrical
brushes

dispositions

direct
these

480

volts.

touching

inspector

The

of

a

bar

could

of

generators

Respondent's
units

without

ultimately

made

respondent

as

questioi•ed

meaning

current

•ether,

contends,

location.

director
the

hazard.
on

carried
inadvertent

an

is

presented

by

safety

within

volt

that

find.

so

"connections"

uninsulated,

contradiction

principal

The

protection

design

by

without

of

tile

these

whether
and

insisted

in

any

event,

he

claimed,

standard,
did

not,

electricians,
them
off
turning
these
citations,

resolved.

G30

(Tr.
this

62).
conflict

components

were

that

the

present

an

routinely

replaced
of

Because

will

armature

not

the

be

be

The

inside

chain
electrical

an

link

undisputed.

The

respondent's

safety

Respondent
and
workshop

is

storage.

some

an

enclosure

since

of

the

with

dealt

that

sense

from

that

compliance

at

times

all

director

a

unintended

workers

with
and

that

content

was

they

were

were

not

room

is

bus

the

bars

the

the

storage

did

also

used

not

to

enter

the

no

other

workers

63).

(Tr.

enclosure

the

of
is

use

generators

the

not

are

insulation.

with
of

guarding
for

electrical
those

or

and

covered

individual

for

its

enclosure

that

and

are

and

locked.

kept

there,

customarily

are

"Restricted

latched,

within

alone

chain

facts

electricians

let

was

two

notice:
These

employees

own

by

which
of

one

this

stored

were

that

which

through

doors

than

building,

possibilities
taken
approach

the

contrary,

apparent

that

other

the

clear

makes

components

evidence

the

items
in

be

to

evidence

The

that

workers

enclosure,

Only."

Personnel

agreed

electrical

only

electrical

gained
only
sign
displaying

formed

enclosure

an

this

to

be

conceded

for

occasion

have

would

could

director

in

were

Entrance

a
large
Qualified

was

Voltage,
inspector

invitation

constitute

panels

bar

that
the
however,
emphasized,
electricians
used
(its
only
by
director
Its
acknowledged
safety
that
He
maintained,
however,

contractors).
for

fencing.

each

High

Danger,

bus

workshop,

Beside

doors.

Area,

the

link

and

generators

floor-to-ceiling

devices.

the

On

embodied

both

types
No

parties
of
an
isolating
acceptable
provides
way
insisted
But
the
with
such
contact
inspector
equipment.
be
locked
enclosure
that
the
further
standard
the
requires
electricians
safety
Respondent's
keys.
only
possess
and
latched
that
the
signs
warning
wer•
enclosure,
gates,
witnesses

by

an

enclosure

fenced

enough.
I

must

electricians,
could
doors

be

trusted

be

keptnot

respondent.

cognizant

of

virtually

The

enclosure.

marked

and

Moreover,
location"

used

as

inspector's
of

as

most

in

insistence

standard

shows

that

locks

as

5/

See

the
a

than

of

concern

would
that

operator
a

lock

"protection
imply

shall

be

locked

there

was

would

enter

electricians,

signs.5/_
by
prudent

most

and

the

Perhaps

his
understanding
provides:

with
which

against

the

provided

...

the

to

associated

§ 56.12-68,

and

except
and

fencing

essentiaL.

was

C.F.R.

that

the

that

was

concern

unauthorized

anyone

phrase

somehow

30

to

by

lock

a
was

keep
however,
electrician
an

location

scarcely

real
out

un-

entry.
lends

draftsmen

precautionary

photograph,

the

standard

enclosures

authorized

other

restricted

standard,

Transformer

That

anyone

me,

that

devices,

uninsulated

the

His
to

persuades

important,

on

electrical

another

locked

nothing
a

the

mine

safety-conscious

evidence
that

in
fence.

the

also

satisfied

appeared

inherent

within
but

closed

contained

area

clearly

was

the

The

inspector

The
hazards

safely

work

to

only
employees.
no
possibility

unskilled

and

with

agree

no

of

to

support
the

It

exhibit

Secretary's
electrical

extensive

measure.

respondents

the

also

shows

3.

q31

rules

that

Instead,

position.
they

had
were

not

fully

overlooked

capable

it

of

articulating

contained

a
locking
requirement
far
so
as
transformers,
specific
iocking requirement

where

no

engraft

a

I

hold

that

the

itsgenerality,
calculated

reasonably
circumstances.

insure

against

to
What

for

proposals

to

has

respondent
will

penalty

cited

be

here

in

be

vacated

the

unfair

palpably

to

standard.

injury

worker

done

therefore

would

provided
by location,"
that
of
only
degree

...

require

construed

enclosure

The

necessary.
and
it
the

onto

"protection

phrase
be

must

know;

we

under

present
for
failure

all

of

protection
the

sufficient.

is

case

because

to

The

prove

violation.

ORDER

Accordingly,

it

(I)
(2)

Citation

is

Citations

374883

374871,

and

374884

are

vacated;

is

affirmed

and

a

penalty

of

$i14

is

affirmed

and

a

penalty

of

$90

pursuant

to

motions

for

374875

is

assessed

and

therefor;
(3)

that:

ORDERED

Citation

374882

is

assessed

therefor.

It

granted

is

further

at

the

(i)

ORDERED,
outset

Citations
of

proposed

Respondent's

contest

proposed

It

is

finally
penalties

penalties

ORDERED
no

the

later

374877

and

affirmed

are

as

374874
374976

$150.00

Citation

374877

$

38.00

the

pay
date

$

shall

respondent
30

from

days

and

that

the

38.00

the

this

$430.00

of

aggregate
of

of

order.

Carlson

•dm
n

withdrawn

are

follows:

Citation

than

dismissal

and

374872
and
374881
and
the
374870,
corresponding
arevacated
and
penalties
dismissed;
of
the
in
connection
with
penalties
proposed

Citation

that

withdrawal

that:

374874,'374876

citations

assessed

hearing,

374869,

notices

(2)

the

of

A.

inis•trative

Law

Judge

Distribution:
Andrea

Robinson,

Labor,

11071

California

Cora

California

Esq.,
Federal

Office

Building,

of

the

450

Solicitor,
Golden

Gate

United

States

Avenue,

San

Department

Francisco,

94102

Lewis,

Esq.,

Kaiser

Cement

Corporation,

94612

6.32

300

Lakeside

Drive,

Oakland,

of

FEDERAL

AND

HEALTH

K STREET

NW, 6TH

SAFETY

MINE

1730

WASHINGTON,

D.C.

FLOOR

20006

March

OF

SECRETARY

1981

ii,

Civil

LABOR,

Proceeding

Penalty

HEALTH

AND

SAFETY

MINE

COMMISSION

REVIEW

(MSHA)

ADMINISTRATION

Docket

,

Petitioner

LAKE

No.

A.C.

80-139-M

20-00371-05019H

No.

V.

White
WHITE

PINE

DIVISION,
COMPANY,

RANGE

COPPER

Mine

Pine

COPPER

Respondent
STEELWORKERS

UNITED

5024,
AMERICA,

LOCAL

of

Representative

OF

Miners

DECISION

Gerald

Appearances:

Hudson,

A.

of
Department
Petitioner;
E.
Ronald
Greenlee,
& Greenlee,
Graybill
U.S.

Respondent;
Tuggle,
of

Steelworkers
for

Chief

Before:

is

imminent

danger
104(a)

section
because

a

A

the

Esq.,

Clancey,

Hansen,

the

who

company

withdrawal
of

the

the

held

Secretary
order

accompanied
were

William

October

on

Bruce

were

and

a

under

worked

operator

Case

growing

under

charging

Act,

the

of

proceeding

Broderick

Judge

Law

order

Pennsylvania,

Miners.

of

penalty

United

Department,

Pittsburgh,

America,

for

Chilman,
for
Michigan,

Ishpeming,
Health

and

Administrative

civil

was

and

citation

members

scoop

hearing
for

nesses

a

Solicitor,

Michigan,

Statement

This

the

Detroit,

P.C.,

Representative

of

Labor,

Safety

Harry

Office

Esq.,

of

out

section

107(a),

violation

of

loose

rock

23, 1980,
Haataja,

in
the

30
on

633

issuance

and

a

§

4,

June

of
57.3•22

1979.

Wit-

Michigan.

Federal

inspector

Smith,

miners

Witnesses
of

an

under

citation

C.F.R.

Houghton,

Gordon
Berno
and
Benjamin
the
inspection.
during
official
a
supervisory

Haataja
Carlson,

the

the

who

issued

and

union

called
Mine

by
Safety

and

Health

Administration,

Raymond

Hicks,

occurred,

and

Haataja.

The

The

of

Fred

Smith,
Representative
have

parties

considered

Albert

foreman

them

unit

the

operator
of
the

submitted

and

the

the

Goodreau,

the

where

the
of

the

their
the

at

engineer,

observed

call

not

stating

adduced

safety
alleged

is

scooptram

did

Miners

briefs

evidence

company's

violation

have

Inspector

witnesses.

any

and,

positions

hearing,

to

by

make

I

having
following

the

decision.

Regulatory
Title

30,

Code

Miners
of

their

of

shall

examine

working

places

frequently

thereafter.

conditions

during

and

ground

shall

be

work

is

ways

shall

as

Federal

and

done.

the

test

of

visits

insure

that

being

followed.

to
are

Ground
examined

along

and
shift

examine

the

proper

rib
and

ground
testing
Loose
ground

before

any

other

and

travel-

scaled

supported

or

necessary.

l/

Issues

tor

reads:

haulageways

and

periodically

face,
each

supported

conditions

57.3-22,

back,

beginning
shall
Supervisors

adequately

or

section

the

at

practices
down

be

Resulations,

daily

control
taken

Provision

i.

On

work

under

4,

June

1979,

areas

of

the

ii

approximately

at

loose

rock

did

a.m.,

the

subject

violation

of

in

scooptram

a

mine

alleged

as

by

operathe

inspector?
2.

If

so,

was

3.

If

a

violation

condition

a

occurred,

what

Findings
i.
was

in

On

2.

The

size

be

reasonably
in
working

•/
issued.
civil

4,

June

under
working
the
company's

The

the

of

Fact

of

loose

of

the

appropriate

penalty?

2/

ii

approximately

areas

and

condition
to

a

scooptram

SW30

heading

a.m.,

rock

the

however,

penalty
proceeding
the
occurred.
order/citation
stipulated
2--/ The parties
in
personal
jurisdiction

is

and

in

the

issue
the

a

rock

serious

or

107(a)
not

that
this

loose

death

cause

that

contends
case,

at

the

§ 57.3-22?

C.F.R.

operator
of

93

Unit

mine.

expected
heading.

company

This

1979,

several

is

30

withdrawal

order

proceeding
is

,q4

the
has

that
harm

was

review

to

whether

Commission

case.

such

was

physical

both

the

violation

subject

could

it

miners

to

improperly
order

charged
matter

but

a

in

and

The

3.

the

in

working

condition

and

obvious

was

noticed

been

have

should

miners

by

area.

4.

The

company

demonstrated

5.

The

company

is

in

faith

good

ordinary

the

abating

violation.

its

remain

to

ability

The

3/

violations.

previous

mine

large

a

with

operator

of

history
will

herein

imposed

penalty

civil

moderate

a

affect

not

business.

in

Discussion

The

ground
Inspector

Haataja

approached
backing

what

30

crosscut.

down

(or

"barring")

sentative

was

the

order,
barred,

inspector

the

which

loose

tor's

testimony

The

tram

tram

rock

could

walked

that

part

the

tram

was

and

Fred

Smith

SW30
that

actually
to

the

muck

pile

had

he

heading,

untouched

muck

noon,

when

it

pile.

significance
After
the
cycle.
mining
the
containing
debris,
to
are
inspect
roughly,
the
remove
muck
pile,
The

3/
which

These
was

conclusions
filed

June

and
rock

of
and

was

with

bar

no

The

inspec-

Smith,

who

performed
argued

in

SW28

that

the

testimony

this

all
muck

2,

small

in

SW28

they

a.m.,

loose

barred

of

amount

claims

foreman,

11:30

about

at

unit

the

Hicks,

the

until

heading

were

and

rock

an

after-

blasting.

face

the
ore,

The
scooptram

performed

was

When
heading.
and
evidence
pile
that
shows
evidence
clearly
of
Raymond Hicks
testimony
in
was
actually
working
muck

the

The

rock.

wit-

three

However,
dead-end

a

at

question.
party
inspection

for

of

of

removed.

a

also

rock.

out

the

being

was

company

tracks

that

work

are
on

repre-

citation

amount

Gordon

and

minutes

company

vicinity.

The
loose

back

loose

contained

readied

was

the

work

in

the

No

no

1979.

saw

been
the

period

encountered
which

the

issuing

large
protection,
Berno

the

tram

suggests
the

A

A

15

than

more

rock.

In

Benjamin

that

they

under

strongly

spent
loose

of

in

under
the

during

about

observed

4,

June

seeing
heading,

SW29

in

morning

operating

he

overhead

overhead

evidence
of

the

heading
when

by

down
of

crosscut,

rock.

observed

testified

they

was

introduced
the

not

was

trimmed

loose

the

during

nesses

equipped
be

party
scooptram

a

the

following:
with

corroborated

was

company

heading

not

was

removed

actually

the

considered

method.

rock

period.

this

under-

an

loose

party

amount

observed

is

cleared
of

inspection

during

present

not

his
he

had

areas

sizable

a

room
as

heading,

tram

three

The

the

the

When
found

and

inby

feet

prying

face

the

SW28

the

was

heading.

the

of

out

told

was

by the
that,

hearing

the

at

Michigan,
and
pillar
inspection

County,

Ontonagon

extracted

is

copper

testified
he

toward

walked

which

from

mine

in

located

Mine,

Pine

White

which

remains

parts
a

based

on

1980.

the

of

with

be

can

scooptram,

a

motion

is

bolt

for

a

"muck."
for

The

loose

the

approval

of

description
of
pile

a

explosives,

called

heading

from

gleaned

with

blasted

is

rock,
drill

roof,

of

a

next
wet

and

settlement

steps,
the

prime

the
at

face

and

the

blast

end

and

the

that

the

of

it

15,
A

for

mucking

for

loose
until

there

SW29

by

of

the

testimony

that

the

spent

records.

This

tion.

The

number

a

facie

case

stated

that
overcome

is

evidence
of

their

that
the

penalty

the

heading
290,

loose

rock

found

described

found.

company.

Hicks

and

Fred

it

Inspector
at

the

out

was

rock

for

areas

Haataja,
had

been

been

noticed

have

under

of

facts

of

This
Smith
but

Berno,

Gordon

in
tram

should

or

The

the

in

circumstances,

this
Smith.

The
but

operator,
have
of

serious

prima

back.

gravity

the

in

both

and

present
by the

are

heading

a

rock,

resulted

all

was

loose

knew
employee
achieved.
rapidly

could

assessed,

him

important

rock

was

by

by

the

backing

overhead

the

Even

which

which

loose,

have

since
be

location

witnesses

supervisory

a

knew

at
the
time.
working
to
according
company
of
the
violaalleged
cited
the
inspector

the

inconsequential;

There

168).

was

the
of

294

Haataja

(Tr.

Hicks

location

aware

the

three

loose

could

condition

to

condition

and
mine,
§ 57.3-22.

FMSHRC

SW28.

or

marked

he

because

Conclusion
The

no

the

enter

2

muck

maintains

circumstances.

heading,

the

working
of
testimony

long

serious

quite

appropriate

checked

the

where

SW30

of

is

by
by

and

and
in

clearly

was

rebutted

obvious

no

was

which

that

clearly
writing,

to

liability

of

how

Abatement

lation

it

under

reduced

notice

eyewitness

unclear
was

is

company
for

SW29

not

were

observed

heading

had
the

could

morning

accumulation

they

condition

had

observed

never

he

were

evade

the

was

was

cannot

there

The

me

heading,

headings

order

when

of

sizable

It

blasted

Inc.,

persuades

SW30
as

sufficient

scooptram

which

the

cannot

company
number
heading

a

all

entire

was

The

wrong
intended.

best

Haataja
the

evidence
in

as

and

operator

Smith

the
was

not

citation

scooptram
Fred

all

inspector
heading

the

before

been

to

Asarco,

v.

of

just

heading,

scheduled

MSHA

pile

has

face

rock.

in

was

Cf.

out.

untouched

an

the

loose

rock

miner

a

is

that

1980).

identified

it.

issued

consideration

observed

that

be

if

--

(April

was

checked

encountered

could
prepare

be

to

inspector

Therefore,
is
probable

it

about

is

area

citation
and

again.

heading,

a

known

of

the

vio-

injury.
$2,000.

Law

on
Haataja
constituted
hearing

June

4,
a

1979,

at

violation

the
of

subject
30

C.F.R.

ORDER

Respondent,
$2,000
violation

within

White
30

found

days

Copper

Pine

of

the

date

Division,
of

this

The

is

is
order

ORDERED
as

a

herein.

James

A.

Chief

Administrative

civil

TO

PAY

the

penalty

Broderick
Law

Judge

sum

of

for

the

Distribution:
Ronald

By
E.

Clancey,
Building,
Gerald

A.

certified

mail.

Greenlee,
Esq.,
Hansen,
Chilman,
MI
Ishpeming,
Hudson,

Counsel

for

White

Graybill
49849

&

Greenlee,

Office

of

Attorney,
Lafayette,

of

Labor,

231

Mr.

Harry
America,

and
Tuggle,
Safety
5 Gateway
Center,

of

Assessment

vard,
John

West

Office,
Arlington,

Cestkowski,
MI
Watersmeet,

MSHA,
VA

657,

the

Copper
Company,
Peninsula
P.C.,
Bank

Solicitor,
Detroit,

Health

Department,
PA
Pittsburgh,

Department

of

U.S.

Department

48226

MI

United

Steelworkers

15222

Labor,

4015

Wilson

Boule-

22203

President,
49969

U.S.

Room

Pine

Local

Union

5024,

U.S.W.A.,

Box

i01,

FEDERAL

MINE

SAFETY
OFFICE

OF

ADMINISTRATIVE

2

SKYLINE,
5203

FALLS

OF

MINE

LAW
FLOOR

LEESBURG

PIKE

COMMISSION

JUDGES

•.

MAR 11

VIRGINIA

(703)

22041

756-6236

LABOR,

SAFETY

REVIEW

lOth

CHURCH,

Phone

SECRETARY

HEALTH

AND

Civil

Penalty

Proceeding

HEALTH

AND

ADMINISTRATION

(MSHA),

Docket

Petitioner

No.

A/O

No.

80-303-M

WEST

05-00516-05016

V.

Leadville

Unit

INCORPORATED,

ASARCO

MINING

NORT•4ESTERN

DEPT.,

Respondent

APPROVING

DECISION

The

proposed

$930

set

forth

ber

333112,

The

only

order

in

tions

of

two

standards.

and

The

5

Secretary
hereinafter,
the

assessment

but

gallon

standard

to

the

of

section

The

(30

citation

but

creation

be

properly
order

is

such

under

that

imminent

only
to

*

107,

so

in

this
after

I

the

and

I'm

in

that

manner.

more

can

form

of
107(a)
danger

the

order,

of

*

have

briefs

and
the

Nor

the

is

issue

if

There

civil
proposed
"the
Secretary
is

doubts
decision
arguments

mention

no

as

that

on

rather

doubtstated

above.

r 38

to

an

procedures
order
under
The

of

citation.

implicastandard

a

Section
that

states
a

an

order

citation

or

issued
of

the

order

under

procedures
should

however,
vacuum;

was

penalty

citation

penalties,

a

it

danger

an

violation

validity
Proposition

to
a

sense

the

a

issues

in

not

ii0."

the

than

agreed

of
of

a

of

it

that

forth

a

$190

civil

a

section

there

violation

was
a

issuance

also

the

57.11-1.

sure

of

issuance

under

came

imminent
I

am

setting
"the

that

serious
A

basis

should

with

In

that

the

he

made

*."

order.

thinks

deals
be

and

sure

soon

as

office

section

333112A

not

states

preclude
a
penalty

not

of

erroneous

after

Act,

§57.11-1)

assessed

it

a

the

sanded

existed,

Actually,
danger

imminent

C.F.R.

and

violation
was

both

assessment

other

the

action

an

the

the
with

stairs

or

condition

one

for

(30

removed

num-

B.

viola-

during

the
violates

place
be

snow

by

allege

to

stairway

alleged,

working

treated

case.

expressing

is

than

office

which

104,

climb

without

should

section

a

to

333112A."

from

shall

Act

on

only

this
No.

proposing
if
an
inspector
imminent
danger,

the

up

the

second

appears

has

Somehow

did

that

the

proposal

followed
myself

an

of
a

section

made

or

as

105(a)

it

as

subsection
104

well

than

assessment

Section
an

this

tion
as

serious

derived

danger

proceeding.
for
issuing
section

more

but

with

the

and

miner

and

case

reasons

orders

A

an

builds

a

ice

§57.11-16).
though

even

listed

the

can

under

that

was

was

to

access

by

it

this

the

withdrawal

two

condition,

C.F.R.

of

a

For

agreement.

333112

snow

week

a

safe

stipulates

"citation

and

ice
once

violation

Secretary

imminent

numbered

that

that

vacate

orders

is

requiring

57.11-16

for

followed

This

conclusion

more

lists

is

a

standard

practicable

as

A)

oil.

requiring
the

(Exh.
order

in

$i.

settlement

first
file

violations

for

settle

the

accept

alleged

two
to

sheet

that

of

can

I

that

and

the

proposes

the

is

months

and

a

the

charge

The
winter

for

assessment

is

SETTLEMENT

so

I

will

be

confine

parties

The

policy
and

to

as

the

that

from

obvious

is

it

believe

that

stipulated
cleaning
up
the
of

statement

Respondent•has

and

ice

that!the

stipulation

soon

was

Company,
3475,

the

practicable,

as

does

Secretary
he

that

employee

former

a

as

and

rule

adequate

an

salting

and

snow

not

of

reminded

not

policy.

(December

that

if

dismissed.

case

of

Labor

1979),
Board

of

Mine

could

not

be

think

that

been

but

of

penalty
of
that

and

the
it

Interior

case

for
if

(March

be
has

the

order

withdrawal

that.

to

proper

issued,

to

MSHA,

and

that

sure

that

been

I

again

could

I

was

possibility

might

26,

Department's
a

I

and

Secretary

proceeding.
penalty
but
proposition,

that

bare

the
vacated

Decisions,

that

outright

order

104

or

the

civil

reexamine

suit

FMSHRC

effect
a

appropriate

because

citation

no

there

might

there

assess

civil

a

accept

will

I

settlement.

$i

Respondent
civil

the

civil

the

the

to

course

should

like

seem

where

the

stated

however,

of

79-

DENV

be

78-70-P

PIKE

of

decisions

Appeals
in

should

decisions,
issue

No.

Commission

occurred,

citation

Company,
1979

former

Commission

violation,
a
violation,

penalty
the

not

dismiss

have

earlier

March

Operations
reviewed
the

does

no

its

of

Docket

violation

no

the

but

Collieries

unpaginated
with
agreed

Commission

that

indicates

one

Creek

Mining
Decisions

FMSHRC

accepted,

the

in

would

In

Wolf

v.

be

not

CO-OP

v.

2

motion

settlement

a

should

the

was

Labor

1980),

i0,

settlement

this

of

Secretary

In

I-P

penalty

ordered

therefore

is

of

to

pay

within

30

days,

a

$I.

°

Charles

Moore,

C.

Administrative

Jr.
Law

Judge

Distribution:

James

H.

Labor,

(Certified
Earl

Washington

Barkley,
Federal

1585

Esq.,

Office

of

Building,

1961

Stout

the

U.S.
Solicitor,
Street,
Denver,

Department
CO

80294

Mail)
K.

Madsen,

Avenue,

Esq.,
Golden,

Bradley,
CO

80401

q3 J

Campbell
(Certified

&

Carner,

Mail)

P.C.,

1717

of

MINE SAFETY

FEDERAL

OFFICE

HEALTH

AND

OF

ADMINISTRATIVE

2

SKYLINE,
5203

FALLS

REVIEW
LAW

lOth

FLOOR

LEESBURG

PIKE

CHURCH,

VIRGINIA

COMMISSION

JUDGES

22041

MAR I 8 t98•

SECRETARY

LABOR,

OF

SAFETY

MINE

AND

ADMINISTRATION

of
Complaint
Discrimination,

HEALTH

(MS•&)

BOBBY

Interference

or

,

Docket
behalf

On

Discharge

No.

KENT

80-145-D

of:
GOOSLIN

Calloway

I

No.

Mine

Complainant
Vo

KENTUCKY

CARBON

CORPORATION,
Respondent
DECISION

William

Appearances:

F.
Taylor,
of
Department

U.S.

the

Secretary

•ry

Lu

C.

of

Jordan,
D.C.,

%•shington
Kentucky,

for

United

and

Bernard

Bobby

of

the

Nashville,

Esq.,

Solicitor,
for

Tennessee,

Mine

Workers

Pafunda,

of

America,

Pikeville,

Esq.,

Gooslin;
III,
Esq.,

Christian

Lynch

Office

Esq.,
Labor,
Labor;

Holt
and
Jackson,
Kelly,
West
Charleston,
Virginia;
Timothy
Biddle,
Crowell
and
and
Moring,
Washington,
D.C.;
Timothy
Carbon
Esq.,
Kentucky
Corporation,
Charleston,
for
Carbon
Virginia,
Kentucky
Corporation.

O'Farrell,
Esq.,
Pohl,
West

Before:

Judge

James

A.

Laurenson

JURISDICTION
This

is

Health

and

proceeding

a

alleging

that

Corporation

of

filed

Act
a

gation
reinstatement
Administrative

Gooslin

1977,
on

U.S.C.
MSHA

January

HISTORY

Secretary

MSHA)

on

behalf

from
his
discharged
on
Kentucky
Carbon)
section
of
the
I05(c)
§ 815(c)
(hereinafter
his
concerning
discharge.

under
30

with

complaint
by MSHA,

the

by

was

(hereinafter

protected
of

PROCEDURAL

(hereinafter

Bobby

activities

Health

commenced

Administration

Carbon

AND

18,

Bobby Gooslin.
Law
James
Judge

MSHA

1980,

of

That
A.

filed

application

Broderick

on

640

of
of

Labor,
Bobby

Mine

Safety

Gooslin

Kentucky
because
1979,
Federal
Mine
and
Safety
the
Gooslin
Act).
Bobby
investian
Following
an
for
application
temporary
was
by Chief
granted
1980.
22,
January
Thereafter,
employment
October

at

8,

Carbon

Kentucky
on

January

Chief

on

30,

1980,

before

force

in

review."

Commission

pending

held

Broderick.

order

of

To

the
1980,
Commission)

Federal

temporary
remains

reinstate-

of

order
reinstatement

temporary
the
date,

should

reinstatement

the

the

of

review

Kentucky,
the
hearing,

Following

temporary
March
i0,

On

rein-

temporary

Pikeville,

in

(hereinafter

of

order

for

application
was

notice.

for

petition

"[t]he

stated,

the

Commission

Review

Carbon's

and

ment

that

further

until

Health

and

Safety
Kentucky

held

Broderick

the

on
hearing
application
Chief
Judge

a

the

hearing

Judge

continue

requested

A

statement.

has

Commission

effect

in
ruled

not

Mine

granted

that

on

order.

Bobby

which

upon

of

completion
i0,
July

1980,
Piliero,

counsel

for

pertinent

1980,

I

view

the

with
As

MSP•

and

of

facts

of

to

from

for
traveled

granted

was

denied
of

15,
September
the
of
Solicitor,
sent
Gooslin,

1980.

a

hearing
U.S.

a

Upon

issued

was

on

1980,
of
Labor,

18,

Department

stated

in

that

Bobby

Gooslin

United

Mine

Workers

which

letter

a

me

1980.

August

On

state

to

5,

May

of

behalf

on

failure

on

notice

has

could

be

conflict

does

exist,

of

Secretary

of

Labor

withdrawal

The

August

would

be

America

Kentucky

and

ordered
to

MSHA
be
UMWA

all
denied

from

letter
this

Mr.

Carbon.

show

August
cause

and

opposed

dismissal

this

why
to
to

the

there-

We

administrative
notice

Secretary's

also

counsel

C.

Lynch

1980,

I

Kentucky
previous

withdraw.

G41

the

1980,

conducted

I

Christian

should

of

be

Carbon

order,
Additionally,

counsel

Esq.,
motion

withdraw

to

should

discharge

not

telephone

a

III,
MSHA's

denied

complaint

its

the

stated

from

18,

August

matter

and

the

responses
MSHA's
motion

Piliero

and

18,
why

a

of

matter.

by
On

a

such

withdrawal

the

as

that
that

matter.
above-styled
the
presiding

Mr.

Piliero

withdrawn

of

the

matter

UMbrA).
On

to

warrant

the

to

month

one

belief

our

above-styled

con-

and

only

concluded,

notification
the

with

call

that

this

in

for

the

from

represented
(hereinafter

conference

does

request
from

1980,

18,

and

you,

to

have

We

convinced
office

this

are

we

heretofore

was

hearing.

matter.

notification

avoided.

respectfully
accept
judge

law

it

if

this

when

witnesses
at

firmly

exist

15,

inter-

to

issue

in

become

in

time

a

however

hearing,

have

I

this
at

come

be

will

Gooslin

that

regret

other

as

would

•.

conflict

fore

well

interest

represent

Kentucky
potential

Pikeville,

which

September

scheduled

hearing
to

process,

of

do

the

as

that

conflict

a

We

the

Bobby

preparation
recently
complainant

Respondent,

sidering
I
again

Office

Esq.,

result

tinues

and

hearing

on

discharge
for

dismiss

to

requirements,

a

knowledge
a

that

deemed

be

of

complaint

a

motion

part:
In

of

could

prehearing
for

filed

Carbon's

relief

M.

Thomas

MSHA

1980,

Kentucky

Gooslin.

claim

sole

8,

February

On

not

dismissed.

favored

it.

on

September
I

directed

MSHA

After

8,

con-

1980,
counsel

be

for

the

UMWA

directed
this

in

UMWA's

file

to

Mr.

Piliero

matter

in

1980,

Bobby

the

alleged

conflict

motion

for

a

continuance

of

consented

Office

of

the

denial

of

our

motion

be

to

16,

On

to

representing

to

on

the

Department

withdraw

we

of

this

in

be

Esq.,

Counsel,

that

"despite

stated

advise

matter."

would

MSHA

the

Mascolino,

Labor,

Mr.

by

the

i0,

your

that

you

Mascolino's

represented

MSHA

granted

September
UMWA Legal

On

by

UMbrA,

represent
and

hearing.

respectfully

must

to

interest,

herein
A.

the

by

continue
of

Thomas

U.S.

thereafter

representation

could

representation

1980,

Gooslin

Mr.

that

state

he

of

September
Solicitor,

not

to

whether

light

Gooslin

Department.

consent

determine

to

unopposed

Gooslin's

Bobby

will

we

letter

William

F.

motion

to

went

Taylor,

Esq.

MSHA

On

September

and

Bobby

motion

dismiss.

to

eration

of

November

1980,

1980,

motion.

On

October

20,

1980,

of

October

15,

1980,

denied

I

of

tion

that

A

the

penalty
§§ 100.5

process.

Carbon
to

100.6

to

receive

Counsel

for

colaply

with

work

wages.
for

the

for

review

that

the

order

for

the

1980,

for

the

reconsid-

to

dismiss.

On

December

interlocutory

the

On

4,
of

review

for

motion

Commission

Complaint

the
8

through
objected
the

reconsidera-

denied

the

petition

MS•A's

right

to

2700.25.

to

to

MSHA

begin
for

moved

than

MSHA

and

Kentucky

Carbon

opposed

(i)

reasons:

in

effect

order

of

remained

the

civil

since

temporary

pending
temporary

outset

propose

30

C.F.R.

Kentucky
complaint,

and

civil

Carbon's
remanded

assessment

requiring
Kentucky
Gooslin
by permitting

being

permitted

the

the

in

the
a

penalty

order
order

rather

of

the

reinstatement

temporary

order

the

an

site

the

from

At

in

sustained

I

proposal

forth

set

held

was

1980.

mine

following

discharge
ii,

to

penalty
Gooslin

the

of

December

procedures

§

C.F.R.

Bobby

the

hearing,

MSIIA

Bobby

Gooslin

moved

contained

Kentucky

in

denied.

was

testified

Rodney

Dale

to

motion.

Commission
and

Commission

review,

reinstatement

and

merely
denied

I

reinstatement

this

granted

the

further

stated

I

(2)

Justice.

Carbon:

Christian,
Jack
Billy

Jimmy
The

James
Aaron

Fuller,

R.

R.

Reynolds,
Hall,

H.

and

James

evidence

at

the

motion

was

Gooslin:

Stiltner,

following

verdict

no

Bobby

Lloyd

witnesses
Joe

S.

C.

the

did

not

the

motion

petihave

The

motion,

after

the

the

Bobby
Johnson,

Dado,

Hager.

Troy
Meade,

on

Coleman,
Delmar

of

considered

The

Gooslin,
Larry
behalf
James

admissions
to

stateopening
Carbon
Kentucky

hearing.

Cook,

There-

statements.

basis

denied.

testified

William

Jr.,

opening
on

statement.

directed

and
of

made

decision

opening
for

presented

behalf

on

Carbon

sL•mary

a

dismiss

to

Isom,

for

motion

a

MSHA

motion

its

Kentucky

and

Carbon's

of

equivalent

nesses

Ernie

moved

motion

dismiss.
denied

I

timely.

At

ment,
renewed

its

and

the

over

not

the

Carbon

Commission

8,

1980,

15,

reconsideration.

at

of

jurisdiction

after,

civil

proceeding

tion

was

29

the

penalty

tO

return

motion

and

severed

civil

Kentucky
denying

dismiss

to

December

On

another
October

review.

and

objection,
the

the

motion

last

filed
On

for

motion

the
on
merits
of
hearing
on
December
Kentucky,
Carbon
hearing,
Kentucky
herein
without
following

Pikeville,
of

the

petitioned

order.

interlocutory

Carbon

the

order

for

Kentucky

opposed

Carbon
Kentucky
the
denying

the

be

order

my

5,

1980,

23,
Goosiin

following

wit-

Tommy Coleman,
Simpkins,
of
Kentucky

Keith

Marshall
Fred

C.

Biliter,

and

the

MSHA

hearing,

written

its

closing

its

the

at

testimony
submitted

of

conclusion

filed

the

thereafter,

and,

argument
at

of

completion

Upon

to

response

Bobby

argument.

Gooslin

presented
questions
and
Kentucky

closing

a

raised

I

Carbon

briefs.

posthearing

ISSUES

MSHA

any

in

Kentucky

Whether

2.

the

complaint

Complainant
charging
to
Complainant.

because

Carbon

violated

Gooslin

Bobby

and

and,

part

as

I05(c)

of

No

person

(1)
against
against

tion

failed

of
to

otherwise

rights
for

of

§

of

relief

815(e),

safety

this
the

or

the

Act

shall

be

in

provides

or

violation

miner,

representative

is

subject

under

for

under

about

testify

to

exercise

employment

right

afforded

(2)
tative

Any
miners

in

violation

person
after
retary

behalf

by

this

such

the
to

the

or

applicant

alleged

this

Act

or

himself

of

or

applicant

or

be

instituted

has

testified

any
or

miners
of

others

the

of

because

or

i01

section

to

to

employ-

potential

miners

caused

or

because

or

for

and

of

danger

mine,

pursuant

the

or

applicant

any

statutory

Act.

who

that

employment
has

he

subsection

this

file

occurs,

discharged,
byany
against
within
60
days

may,
a

discrimination.

Secretary

shall

respondent

and

complaint
Upon

forward
shall

a

cause

represen-

or

been

discriminated

otherwise
of

such

for

applicant
believes

violation

alleging

complaint,

miners

proceeding,
representative
of

or

or

an

such

any

on

with,

of

evaluations

to

miner,

miner

of

interfered

plaint

such

by

for

in

under

representative

related

or

to

or

complaint

a

other

or

subject

complaint
notifying
the
representative
of

published

or

miners

or

of

the

miners

mine

coal

a

instituted

has

other

mine

in

medical

miner,

employment

proceding

of
standard

a

such

because

or

of

made

of

exercise

of

or

agent,
other

such

transfer

filed

operator's
coal

the

or

a

n•ent

the

coal

including

the

at

discrimina-

cause

representative

has

present

in

the

with

receipt

copy
such

of

Sec-

of
the

such
com-

investigation

is

dis-

awarded

pertinent

discrim-

manner

any
or

representative

Act,

health

or

in

with

any

miner,

employment

to

operator
the
miners

in

such

for

related

any

employment

Actbecause

applicant

interfere

miner,

interest

LAW

or
discharge
be
discharged

to

cause

or

statutory
this

shall

or

applicant

or

MSHA

requested

follows:

inate

or

conflict

I05(c)
what

so,

U.S.C.

30

Act,

the

a

hearing.

section
if

APPLICABLE

Section

of

where

the

at

MSHA

where

dismissed

proceeding
Bobby Gooslin

of

support

be

this

from

Complainant

and

evidence

should

complaint

withdraw

to

permission
between

the

Whether

i.

be

to

made

he

as

15

and

complaint,

reinstatement
If

that

the

shall

the

the

miner

service

ination

or

priate

relief•

(in

tary's

affirming,

Commission

or

become

shall

have

committing

person

such

affirmative

sion

deems

rehiring

a

on

his

behalf

subsection

title

order,

modifying,
directing

or

vacating

other

30

violation

of
abate

to

of

during

any

upon

the

this

subsection

but

hearing

held

U.S.C.

§

mine

where

require
take

the

Commisthe

to,

former

position

applicant,

miner,

additional

present

The

to

limited
his

to

find-

relief.

as

not

for

Secre-

to

violation

for

such

issuance.

proceedings

miner

may

of

its

Thecomplaining

miners

(a)(3)
based

such

the

the

with

opportunity
5, United

appropriate

after

days

including,

of

own

to

an

of

an

interest.

and

pay

554

in

reinstatement

representative

afford

section

authority

appropriate,

or

an

issue

final

action

or

back

with

order,

shall

order

he

violated,
Commission,

miner,
applicant
such
discrimalleging
order
granting
appro-

shall

regard
shall

com-

determines

the

miners

propose

with

without

proposed

Such

and
Commission

immediate

been

the

and
of

thereafter

fact,

with

violator

alleged

but

and

have

was

basis

the

Secretary

subsection

complaint

accordance

Code,

section)
of
ings

pending
investigation,

interference

hearing

States

the
on

this

the

expedited

order

the

shall
of

complaint

an

final

a

The

such
on

order

representative

or

that

shall

file

the

upon

finds

Commission,

Secretary,

of

provisions

investigation
receipt

Secretary's

the

of

immediately

the

Secretary

such

upon

employment,

a

the

of

plaint.

of

brought,

application

upon

Such

appropriate.

days

if

frivolously

not

a

deems

within

commence

evidence
this

to

pursuant

paragraph.
Section

of

103(g)

the

30

Act,

813(g),

in

provides

part:

(i)
in

Whenever

the

of

case

has

representative
violation

of

other

or

reasonable

this

Act

or

a

dard

or
an
imminent
exists,
shall
have
representative
notice
inspection
by giving
ized
of
such
representative

notice

shall

tative

of

of

inspection,

be

notified

imminent
and

shall

exists

not

or

except
forthwith

that

as

the

names

in

notification,
possible
in

accordance

there

and

operator

the

complaint
name

individual

such

copy

or

miner

a

is

such

no

or

the

shall

than

at

such

to

therein

Upon
shall

such

violation

provisions

of

G44

an

giving

referred

notification.

be
or

this

time

shall

that

person

be
the

agent

indicates
the

of

inspection
if

copy

his

or

miners

special

determine

a

later

no

The
of

with

miner,
agent

the

if

a

to

the

his

exists.

appear

such

to

miners

the

to
believe
that
a
grounds
health
or
mandatory
stansafety
such
miner
danger
exists,
or
a
to
obtain
an
immediate
right
to
the
his
or
authorSecretary
violation
or
danger.
Any such
writing,
signed
by the
represen-

by

or

operator

danger

notice

soon

reduced

miners

the

provided

of

be
the

of

representative

a

coal

a

receipt
made

as

danger
title.

If

pertinent

the

that

determines

Secretary

the

notify

exist,

he

shall

miners

in

writing

of

violation

a

miner

does

danger

or

representative

or

not

the

of

determination.

such

STIPULATIONS

The

parties

i.

At

i

No.

defined

"mine"

a

3.

At

Carbon

as

all

times

i

4.

the

8,

Complainant

1979,

was

FINDINGS

the

that

find

I

and

local

UMWA

near

Phelps,

Kentucky,

was

employed

by

Kentucky

at

the

committeeman

safety

the

addition,

In

Act.

Mine.

October

On

as

Act.

Complainant
of
the
3(g)

section

in

the

of

the

herein,
of

Calloway

the

operator

an

was

located

Mine

3(h)(1)

defined

president

was

No.

i

No.

Calloway

relevant
as

operated

and,

Act.

section

in

"miner"

a

Complainant
Calloway

as

coal

the

carbon's
defined

Carbon
Kentucky
accordingly,

herein,
of

production
of
3(d)

Kentucky

following:

relevant

times
the

section

in

2.
is

all
in

Mine

the

stipulated

by

of

record

Carbon.

Kentucky

FACT

OF

the

of

preponderance

discharged

evidence

the

establishes

facts:

following

Background
i.

mine),

all

times

relevant

this

dispute,

of

time

employee

and

3.

At
1416

Local

Although
it

the

cat"
Billy

R.

union
or

the

a

Gooslin

•rch
at

chairman

there

of
of
strikes

Local

Kentucky
would

Union

the

of

was

Manager
1416,

March

of

be

tolerated

that
and

president

Carbon,
the

mine

be

a

good

U•A

mine.

safety

committee,
to

deal

"wild-

stoppage
March
On

or

issued

memorandum

a

work

stating

15,
and

committee

unauthorized
further

the

management

work
1979.

and,

to

of

the

at

local

14,

Kentucky

members

stating

was

Carbon

unauthorized
of

against

UliWA

an

to

him.

committee

until

Carbon
not

Gooslin

safety

Kentucky
complaints.

lasted

Division

Bobby

and

safety

which

mine

Southerland,

employees

not

UMWA members

1979,

12,
the

taken

local

U•A

Gooslin

Bobby

been

had

the

regarding

President

"wildcat"

was

of

supply

1972

in

Prior

motorman.

considered

action

Carbon

Kentucky

at

a

herein,

of

member

Kentucky.

as

Carbon

relevant

times

Gooslin

On

strike

worked

the

(hereinafter

i

No.

Calloway

employment

his

herein,

practice

Bobby
4.

to

all
and

began

of

operator
in
Phelps,

mine

Kentucky
disciplinary

no

Bobby

was

with

Gooslin

Bobby

the

is

coal

underground

an

2.
at

Carbon

Kentucky

stoppages
as

follows:

1979,
all

You

hereby

are

unauthorized
will
policy
cipline,
up
of
employees
pages.
who

can

ship

or

as

fundamental
those

If

that

simply

by

above

On

the

On

for

the

8,

same

involved

in

4

rather

than

individually.

For

UMWA

concerning

week

prior

MSHA

office

to

of

employees

up

to

pate

the
in

section

7.
contended
before

Mine

103(g)

of

the

the

At

prior

the
a

U•A

safety

mine

and

all

this

incident

was

required

run

or

spot

the

of
to

that

each

came

out

the

events

they

between

supplies

on

of

to

mantrips
interpretation

and

supplies

on

Bobby

Gooslin

of
the

and

During

the
the

supplies

the

on

MSHA's
explained
hauling
supplies.
the

law.

The

continued

mantrips
did

not

discharge

particithe

and

inspection

to

pursuant

complaint.

involving
give

inspection

an

them

group

visited

of

Gooslin's

conducted
this

Coleman

Troy

of

a

discharge

miners

hauling

the

UMWA

discharge

Carbon

mantrips.
of

of

as

the

to
leading
Kentucky

group

a

MSHA's

to

13

intent

that

of

section

All
the

hauling
discharge.
Subsequent

concerning

longwall

that

on

themselves

found

concerning

stoppage,

duties
withdrew

crew

with

practice
Supervisor

MSHA

the
be

to

but

Gooslin,

with

(hereinafter
believed

other

his

longwall
rights

suspended

dispute

Carbon's

the

employees

hauling

issue

he

on

found

to

Bobby

Gooslin's

Act

of

time

that

making

he

dispute.
work

13

continuing

the

1978

another

were

unhappy

of

contract.

regulations

foregoing
the

the

at

which

the

Inspector

Bobby

of

occurrence

impera-

discharged
stoppage.

assigned

was

to

because

time

were

of

time

the

is

on
operator
his
individual

employees
on
employees

all

a

surrounding

controversy

He

matter

of

the

condition

a

pursuant

pay

was

Coal

a
shear
Simpkins,
exercised
Mine,
Wage Agreement

UMWA

proprietyof
of
discharge
protest
Kentucky

MSHA

UMWA

board

bulletin

U•B•A

the

interpretation
The

the

the

to

mantrips.

five

this

days'

there

or

2

reinstated

period

a

the

It

on

dangerous.

Eight

forfeit

discipline.
disciplined

work

from

all

1979,

should

or

unauthorized

Coal

arbitrator

their

up
or

identified,

be

K.

himself

themselves

Gooslin,

an

parking
participating
job performance

area

an

Bituminous

An

"hang

work

attendance

may

posted

withdrew

Bobby

event

company

,

for

No.

them.

6.

work

1979,
Larry
Calloway

reason.

employees

be

in

immediately

•y

mine

the

it.

withdrew

and

abnormally

same

7,

National
and

date.

in

future

first

the

selected
you

was

of

Carbon's

contract)

of
be

participating

May

Kentucky

under

you

realize

aware

5.
at

poor

who

leave
cannot

record

will

memorandum
were

first

activists

whose

deemed

those

as

who

such

employees

miners

that,
the

will
disManagement
selectively
number
including
discharge,
a]significant
who
in
future
unauthorized
work
participate
stopSuch
will
be
directed
first
to
discipline
employees
be
identified
as
or
leaderagitating
actively
giving
the
to
be
determined
support
They may
on
stoppage.

lot.

The

as

and

or

tive

in

occurs

follows:

be

to

lights"

is

notice

on

stoppage

basis

a

placed

work

Bobby

Gooslin,

24-hours
except

notice
in

cases

Kentucky
to

the

where

Carbon

operator
the
UMWA

the

alleged

the

herein,

vant

notice

there

the

the

without
of

Events

After

work

completing

who

Isom

complained

way

which

an

in•ediate

this

issue

of

hauling

supplies

the

conclusion

and

make

roof

give

inci-

this

to

allowed

denied

and

safety

spot

by

inspections

these

the

the

meeting,

safety

took

to

four

was

of

escapethis

make

a

the

was

UMWA
who

miners
of

discussion

any

Gooslin

Bobby

an

that

said

the

he

would

call

on

September

to

schedule

run.

further

no

Gooslin

All
there

and

suggested

Bobby

conditions.

The
and

Coleman

track

haulage

at

there-

Stiltner.
that

miners

asked

that
deny
mantrips.

the

of

Bobby Gooslin

main

stopped

Shortly

R.

J.

on

Isom

mine.

contend

of

shift

a.m.

Rodney
the

from

the

•ley

the

and

committeeman

None

check

for

home

8

to

a.m.

discussion

along

on

arrangements

i0.

this

discussion

participated

At

in

danger.

in

9.

safety

water.

to

run

make

to

times
24-hours

Prior

both

had

Coleman

way

UMWA

bad

imminent

or

Carbon

12:01

Tommy
their

participated

committee

safety

by

blocked

was

the

on

members
on

about

inspection.

rele-

all

1979

1979,
29,
September
residence
Gooslin's
Bobby
were
after,
they
joined
miners

to

notice.

24-hours

29,

was

At

danger.
required

not

spot

or

Kentucky
the
right

when

UM•,•A

four

run

committee

safety
required

September

8.

safety

any
instances

imminent

or

it

that

contended

UMWA

were

local

UMWA

immediate

an

making

before

dent,

of

existence

action

this

on

matter

29,

1979.

of

Events

the

ii.

During

local

UMWA

12:01
up

the

spot

shift

a.m.
run

12.

but

mine,

make

a

13.

that

he

that

Gooslin

Act

run.

Between

3

would

that

at

fact

of

Dado

claimed

103(g)

safety

time.

of

that
the

Act

day.

next

4

and

Dado

Joe
a

Joe

Dado

Gooslin
but

mine

send

an

not

request
to

did

not

to

Bobby

the

if

set

Gooslin

MS•A

Meade,

superinwhich

mine

would

a

Coal

•ne

claims

Gooslin

midnight
of
103(g)

and

at

violations.

an

the
Joe

to

pursuant

the

about

complained

send

had

intention

any

Dado,
Bobby

section

to

unspecified
inspection

an

the

to

meeting
mention

Joe

inspector

know

Gooslin

William

grievance

office.

other

a

of

beginning

Bobby

a

called

that

wanted

the

called
of

pursuant

and

at

told

Kentucky

request

testified

wanted

of

chairman

Ferrell,

Lacy
he

present.

Gooslin

mantrips
did

merely

the

Gooslin
Bobby
postponement
Gooslin
Bobby

written

on

that

be

not

Bobby
Phelps,

p.m.,

MSHA's

in

have

supplies

hauling

p.m.,

him

Ferrell

Lacy

would

request

the

Supervisor
that
requested

Inspection

i,

4

to

for

scheduled

been

and

3

the

1979.

Ferrell

Lacy

of

inspection

October

on

advise

to

or

run

that

Between

of

tendent

to

safety

called

Gooslin

Bobby

afternoon,
committee,

the

committee

safety

1979

30,

September

section

inspector.

In

to

was

to

agree
for

request

such

14.

At

district

James

and

15.

Between
Joe

Phelps,

in

request

view

of

notice

because

discussed

the

Fleming

16.

At

approximately
home.
of

Superintendent
at

midnight.

i0

feet

make
17.

At
James

dimensions

feet

for

a

and

tell

safety

by

18

had

approximately
Hager at

home.

18.

At

At
to

that

he

had

failed

roof

midnight.
he

would

approximately

9:20

Dado

to

told

local

of

MSHA,

inspector

James

mine

such

call

Fleming

Fleming

day.

No

Troy

Coleman

Troy

Doug

a

advance

prohibit

Doug

section

to
to

agree

which

the
UMWA

Boyd,

pursuant

could

MSHA

Act

at

from

request
of
the

that

not

give

that

be

permitted

Kentucky

he

had

and

also

Coleman

told

action

was

further

been

wanted

discussed

and

was

expected

would

contact

roof

to

take

and"

Hager
this

which
shift

one

to

Director

run

measured

clean

Hager

James

roof

called
the

Bobby

Gooslin's

reported
told
to

Meade
make

Safety
fact

call

Gooslin

safety

run

to

the

and

request
back
because

Hager

called

MSHA

Inspection

fall.

Superintendent

p.m.,

Meade

reported

request.
James

p.m.,

Carbon

also

permitted
of

to

safety

a

fall

Safety

reach

to

make

run.

be

James

unable
to

the

Superintendent
p.m.,
Meade
Superintendent

9:30

him

that

he

the

report

approximately

to

the

the

next

Gooslin

James
not

notice

inform

would

from

also

District
Acting
Manager
inspection
in
supervisors
advised
Manager
Fleming

with

that
also

fall

24-hours

Joe

19.
Gooslin

at

given

Supervisor

Gooslin

inspector

safety

a

of

the

said

safety
9:15

recent

that

not

said
the

the

that

and

inches

Meade

run

him

for

Gooslin
called
Bobby
Superintendent
Meade
Superintendent
had
to
the
gone
Gooslin
called
Bobby
Superintendent

p.m.,

Meade

for

of

UMWA

a

mine

jurisdiction.

the

Thereafter,

and

arrangements

Director

Boyd,

the

Bobby

MSHA

suggested

notice

James
at

time

Coleman's

Gooslin

Simpkins

Superintendent

up.

of

8:45

Bobby

Gooslin
8

provisions

fall.

Louis

by

whether

learned

He

roof

a

mine.

the

at

inspection

vacation

on

written

a

the

a

questioned
Dado

per-

there

day.

Meade's
because

an

advance

going

was

that

MSHA

William

of

District

received

under

was

question

mine

had

Joe

mine

the

he

that

by

other

inspections.

MSHA

Coleman

the

of

not

that

was

and

until

1979.

an

Fleming,

coal

for

mine

him

MSHA

an

for

Acting
he

he
time

called
meet

I,

get

Doug

p.m.,

Dado

Joe

to

arrange

Coleman,
that

Act.

to

the

Gooslin

October

on

that

specific

a

to

Boyd

unable

inspector,

the

of

asked

office.

MSHA

safety

103(g)

he

Troy

at

received.

Bobby

p.m.,

should

7

supervisors

district

Meade

and

been

shift

Boyd

6

Kentucky

taken

5
and

mine

inspector

an

had

was

and

Dado

inspection

send

understanding

the

at

a.m.

that

Dado's

was

inspection

Gooslin

run.

called

to

he

12:01

that

safety

mine

that
an

the

to

office

MSHA

the

Gooslin

approximately
inspector,

safety
prior
Boyd

it

time,
meet

requirement

no

run

this

at

event,

any

mitted

Hager

had

instructed

make

the

safety

24-hours

notice.

Meade

called

Meade
run

at

Gooslin

Bobby

notify

to

midnight

Gooslin

because

responded

he
that

he

did

not

that

Gooslin's
the

give

not

20.

Thereafter,

to

entry

the

response

paragraph.

foreman

for

the

12:01

a.m.

the

and

tell

the

make

to

be

permitted
thought

an

inspection

to

make

above

Personnel

Kentucky

Carbon.

the

i0

following

make

was

to

then

going
called

called

to
going
that

called

the

to

go

would

he

not

because

Fletcher

Fred

problem.
to

came

Fletcher
the

the

about

home

Hager's

Jame

called

Company,

Gooslin

Bobby
committee,

to

Reynolds,

R.

James

of

parent
company
situation

called

and

wanted

Simpkins,

Larry

and

asked

him

the

mine

between

to

a

the

mine

11:45

p.m.

to

come

Shift

Boyd.

not

to

and

Bobby

already

the

miners,

present

in

the

Gooslin

entry

to

Christian
to

an

not

was

and

notice

James
end

report

the

run

office

and

orders

from

Boyd

asked

Christian

had

over

Superintenhis

Gooslin

court.

this

and

the

walked

his

Federal

in

up

out-

work

to

had

of
he

lot

parking

lot.

parking

that

the
scheduled

were

out

came

don't
they
Hagers
Isom
over
Rodney

and

at

who

them

would

damn

he

enough

given

not

that
for

inspector
that

arrived

underground.

Coleman

(d)
Thereafter,
Meade
Superintendent

had

Gooslin

other

told

Christian

safety

of

foreman

informed

was

Gooslin

tell
he

Christian

them

allow

UMWA

a

to

shift

and

Meade

a.m.

Christian

that
show

and

Foreman

and

with

because
8

at

Several
were

denying

ii

Christian,

James

p.m.,

instructed

Boyd

James

Tommy

mine

inspection
back

come

shift,

to

at

Superintendent

was

the

stated

then

notified

concerned

ii

the

at

office.

mine

"I'm

statement

be

would

to

Meade

been

Fletcher

occurred

called

Christian

Gooslin

and

to

Personnel

Fletcher,

was

personnel

p.m.,

events

shift,

a.m.,

a.m.

dent

1979,

i,

events.

approximately

At

(c)
to

Gooslin

1979:

30,

(b)
12:01

call

to

deny

to

run.

inspection.

side

these

to

Fred

Hager
a

Fuel

was

safety

Gooslin

that

report

to

October

on

a.m.

Gooslin

had

Fred

Carbon

Fletcher

local

(a)

allowed

Fred

Services,

•A

September

12:01

p.m.,

approximately

The

24.

into

Thereafter,

Fred

the

safety

he

him

or

Gooslin.

Meade

instruct
8

him
Meade
with

Hager

instructed

called

James

develop
i0

reaction

At
of

Bobby

there

at

he

though

inspection.

would

events.

Reynolds'

the

be

Hager

Hager
Bobby

that

even

the

matter

Manager,

on

would

James

and

return

p.m.,

reported

approximately

At
the

23.

and

mine,

the

22.
discuss

a

accompany
advised

called

shift
to

9:45

approximately

At

Manager

for

Meade

above

Gooslin

to

also

Inspector,

Superintendent

mine

someone

Gooslin

run.

mine

member

anyway.

Safety

District

had

company
mine

the

of

James

the

to

in

21.

he

U•#A

Boyd,

the

whether

going

was

James

shift

make

damn

a

he

that

and

name

stated:

place."

Bobby

Gooslin

Christian

repeat

his

mine.

returned
the

to

preceding

the

mine

office

conversation.

where

he

Christian

then

remembered

again

neglected

parking

lot

again

returned

to

(e)

Thereafter,

to

that

he

was

to

make

a

safety

(f)

his

Gooslin

told

to

Gooslin

to

return

back

come

at

8

a.m.

at

8

a.m.

He

office.

told

'•going

off

the

run,

and

that

Thereupon,

tell

to

and

Gooslin

lot
him

want

he

had

out

Christian

parking

that
the

went

Gooslin

and

the

miners

who

mountain,"
should
they

gathered

were

Carbon

Kentucky
"be

Boyd

left

the

left

the

parking

the

in

did

not

careful."

very

parking

lot

in

their

the

miners

vehicles.

(g)
refusal

the
allow

to

roof

fall

25.
the

with

time

between

a.m.

shift

headlights
work

start

and

26.

The

the

12:01

a.m.

on

October

Prior

27.

On

October

complaint

11:45

and

these

to

jointly
Kentucky

October

work

stoppage
i,
1979,

this

their

blowing.
the

left

not

to

Carbon

other

Bobby
him

80

Gooslin
that

the

culminating

Gooslin

was

2,

Bobby

1979,

stoppage
in

tion

of

to

discharge

For

and

that

this

a

committee

letter

from
an

investi-

unauthorized

an

with

served

a

offense,

unsigned

you

of

are

a

on

of

cause

establish

clearly

the

effective

was

idled.

were

pending

in

as

you

work

unautho-

an

in

stoppage

hereby

suspended

author

is

with

immediately.
and

the

not

primary

a

identified.

on

shift

violations.

with

actions

your

efficient

instigation
Agreement.

the

began
a.m.

work

1979."

i,

contributor

were

valley,

12:01

safety

health

served

and

preceding

the

which
miners

"suspended

was

the

who

of

strike

and

was

he

were

left

miners

side

until

safety

who

and

mine.

"wildcat"

or

miners

The

that

continued

than

has
concluded
Company
the
1979
were
30,

work

memorandum

the
a

decided

vehicles

350
time,
approximately
the
UMWA local
8,
1979,

more

1979,

the

midnight,

on

also

Stoppage

notifying

October

The
rized

and

roof

follows:

as

of

occurrence

bad

miners

in

Mine,

Work

October

cited

i,

2

events,

October

on

and

p.m.

horns

involvement

September

The

the

and

During
work

mine

On

the
about

who

Carbon's

Kentucky

run,

discussion,
a
safety

flashing
No.
Calloway

on

1979.

your

28.
stated

shift

the

on

a

complaints

got

the

Meade

Superintendent
of
gation
stoppage

at

After

resuming

inspected

make

to

lot,

discussed

their

mine

at

unauthorized

8,

to

and

the

seeing

Occurring

Events

voiced

some

their

to

and

some

miners

assembled

committee

12:01

hearing

Gooslin
shift

night.

At

work

upon

safety
night,
After

that

management

about

the

the

None

mine

a.m.

that

escapeway.
of

work.

and

Boyd

12:01

earlier

blocked

to

After

work

to

were

viola-

intent

notice

which

on

29.

On

October

30.

On

November

of

Bobby

behalf

denied
Arbitrator

The

stated

of

who

he

night,
there

did

came

A

number

to

the

not

of

us

know

to

and

effect.

It

Sunday

on

stoppage,

but

actions

after

or

the

although

that,

arrival

upon

with

the

sudden

a

mine,

they

so

of

knowledge
professed
the
mine
leaving

had
other

Employees
but
working,

of

movement

the

which

Although

provisions

of

would

have

the

other

with

do

to
nothing
Employees.

would

it

were

fear

They

it.

the

of

they

they
left.

withdrawal

individual

their

the

I
opera-

interesting

be

doubt

catalyst
and

erupt

in

my
the

work

to

came

evidence

of

speaks
spontaneously;
a

workers,

that,

Gooslin

to

questions

answers

exhibited

protestations

a

not

this

Grievant

work;

to
men,

it

evidence

by

of

by

was

the

to
innocence

is

not

to

sustain

his

own

and
to

Employer

his
and

his

As

efficient

The

Empioyees
the

on

to

necessary

the

and

and

and
which

avowals

that

of

circumstances.

his

in

equivocal
him,

con-

The

discharge.

testimony

not

and

said

have

scene

do

Strikes
I

even

facts

evasive

propounded

hostility

goes

my

the

home.

caused.

are

In

scintilla

one

arrives

Gooslin

everyone

and

was

Consider:

stoppage.

convicted

stands
fellow

incredible.

leaves

they

Company's

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Beyond

few

the

case

demonstrate,

to

the

sider

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work

intending
to

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in

mind

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to

required

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opinion,

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started

hear.

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of

words

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not
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number

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work

work,

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homeward

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tions

to

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concerted

not

testified

intending

all

Contract,
believe

the

witnesses

from

the

to
a

his

separately

them

a

that.

just

them
of

one

the

question

and

prevented

that

case,

were

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domino

a

came

start

to

this

movement

with

act.

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work.

to

homeward

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intend

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individually

intending
the

public

a

there

stopThe

did.

anyone

usually

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operation

the

no

arrival

his

the

did

are

mine

Gooslin,

not

be

can

the

if

work

a

sufficient.

words.

than

to

when

that

be

and

suggest

not

is

nod"

testified

who

one

no
or

happening

strike

"wink

to
spoke
throughout

spread

unusual

louder

came

that
o•der

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an

wildcat

a

proverbial
speak

them

may

be

that

part:

fact

the

the

would
of

men

pertinent

stressed

hearing
It

page.
initiation

of

in

14,

found

and

T.

Carbon

November

On

Kentucky

by

Carbon.

heard
testimony
Kennedy,
Gooslin's
Bobby
concerning
Arbitrator
Kennedy
1979,
sustained.
his
was
discharge

David

Kentucky

grievance

Union

admitted

The

and

contract.

Kennedy

actions

Gooslin

discharged

was

arbitrator

1979,

Gooslin's

Bobby

Gooslin

Bobby

i,

the

under

grievance

1979,

8,

his

testimony

contradicted
of

cooperation.

his

do

31.

January

14,

1980,

the

Kennedy's

award

of

November

On

Arbitrator

Arbitration

Review

Board

denied

of

review

1979.

14,

DISCUSSION

Whether

I.

the

This

action

Bobby

Gooslin's

an

order

of

scheduled
from
MSHA's

A.

due

parties
to

request
shall

MSHA

charged
MSHA

from

prosecute

an

to

withdraw

may

not
not

ney

-

The

from

a

were

where

there

the
support
withdraw
may

from

where,

by

statute,

to

section

case

proceedings
I

pursuant

reaffirm

due

proceeding
reasons

are

a

of
to

to

(I)
discharge

attorney
does

of

i05(c)(2)

has
his

i05(c)(3)

of
of

to

-

an

in

only
of

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action

will

not

the

in

support

that

permitted

true

with

the

a

been
action

the

Act

Act

conflict
shall

not

violated;

own

the

authorize

it

was

of
be

for

clearly

mandates

determines

that

MSHA

not

violated;

interest

the

withdrawal

(3)

and

of

652

section

that

the

law

a

party

instances

representing

proceeding.

to

a

necessary

this

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where

party

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but
from

the

institute

to

from
miner.

prosecute

determined

never

specifies
from

to

attor-

pursuant

I05(c)(i)
had
no
right

(2) Bobby Gooslin
discharge
pursuant

because

precluded

MSHA
section

cases

an

withdraw

complaining

attorney

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in

can

to

of

request
an

from

MSHA

dis-

times,

its

interest.

by

be

all

discharge

its

which

brought

interest"

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holding

party
Act.

that
has

operator
Act.

distinguished
especially

is

with

MSHA's

of

of

as

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the

for

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conflict

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in
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MSHA

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interest"

mandates

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decisions

i05(c)(2)

Act;

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case

bring

ble

"conflict

Section

Act

section

a

by

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to

motions.

follows:

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party

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MSHA

that

of

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decision

my

i05(c)(2)

section

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proposition
the

i05(c)(i)

is

those

which

that

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I
motions

precedent
i05(c)(2)

no

the
withdraw

interest."

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of

court

permission

to

discharge,
a

is

cited

proceeding
party

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to

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before

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violated

authorities

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represent

instant

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Carbon

the

numerous

determines

section

investigation
Obtaining

in

month

of

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it

its

a

presented

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of

Kentucky

Gooslin.

Bobby

do

that

requested
"conflict

proceeding.

action

of

than

prosecution.

that

agreement
this

Prosecution.

Thereafter,
Less

complaint
due
Act,

a

the

violation

in

asserted

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of

in

are

Gooslin.

MSHA

of

successful

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relief.

of

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completion
MSHA

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Carbon
Kentucky

an

want

i05(c)

withdraw

miner

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to

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to
section
pursuant
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miner?
complaining

The

for

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upon

for

permanent
this
matter,

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for
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secure

date

hearing

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complaint.

temporary
filed
to

was

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initiated

was

of

matter

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evidence
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tion

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HISTORY

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delay

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of

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of

resolution

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dismissed,

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case

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on

violation

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would

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section

discharge

1977,

OF

ACT

his

language

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statutory

is
file

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HEALTH

dismiss

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motion

Carbon

AND

SAFETY

MINE

there

reinstatement

temporary

dismissed.
these

all

construed

broadly
declined

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this
Act.

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active

active

own

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evidence,

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of

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supplied.)

renewed

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should

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present
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Kentucky

and

factors
allow

Bobby

any

evidence
Section

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conclude
Gooslin's
in

to

of

support

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of

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section

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case

go

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the

forward

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complaint.

Act.

Setting
Prior

this

not

be

might

Kentucky
the
satisfy

Commission,

be

in

claim

with

would

623.

Carbon's

Kentucky

conflict.

at

resolve

Committee
to

FEDERAL

THE

OF

Sess.,

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this

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must

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on

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section

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safety

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health,

LEGISLATIVE

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sec-

"additional

any

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any

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does

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evidence,

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of

motion

Kentucky

any

paragraph."

of

this

renewed
evidence.

evidence

this

to

absence

of

will

be

participation.

of

the

of

the

of

and

the

mine

to

are

Cong.,

the

evidence."

miners

discrimination

tions

any

for

and
Gooslin
Bobby
represent
moved
Carbon
UMWA, Kentucky

not

additional

pursuant
in

history

national

our

miners

If

held

legislative

safety

by

present

may

.

i05(c)

enforcement

the

Gooslin

"additional

effective,

truly

.

that

section

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would

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want

hearing

to

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present

or

dismissed

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also
It
prosecution.
without
MSHA
rested
after
presenting
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rested
that
MSHA
once
presenting
the
introduction
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Act
does
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of
permit
Section
miner.
the
i05(c)(2)
complaining

asserts

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of

for

action

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nothing
of
language

II.

miner

complaint

the

it

that

notice

representation

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was

Bobby

complaining

a

represent
should

prosecution?

Pursuant

the

declines

behalf

his

on

at

to

the

incident,

the
mine

hostile

were

there

of

occurrence

was

a

history

incident

the
and

of

work

labor-management

herein,

acrimonious.

the

During
stoppages,

a

written

7 months
statement

rela-

prior

to

from

threatening

management
in

involved
reinstatement

of

whether

to

as

the

miners

to

work

U•#A

who
in

dispute,
mantrips.

of

None

the

MSHA

no
presented
inspection
pursuant

valid

for

reason

safety

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Kentucky

to

valid

reason

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to

section

103(g)
Kentucky

giving

for

run

and

the

refusal

was

based

give

of

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upon

has

of

24-hours

the

Act.
3

Carbon

of

for

its

dispute
before
Carbon
on

with

notice

of

imminent

involving

con-

glory.

UMWA request
for
Gooslin
presented

a

Bobby

hours

the

notice

itself

honor

to

was

UMWA-Kentucky
hauling
supplies

a

covered

failure

reason

committee

solely

area,

who

subsequent

under
rights
continuing

a

management
and
mine,
propriety

the

not

valid

no

safety

to

its

and

individual
unsafe

proceeding

complaint

a

presented

Gooslin

this

parties

only

Carbon

their

allegedly

with

miner

any

the

invoked

an

required

was

discipline
discharge

or

stoppage,

committee
safety
inspections
MSHA, dealing
involving

making

make

work

13

refusing

by

tract

discharge

to

unauthorized

an

to

inspect

the

mine

as

failure

to

give

24-hours

requested

to

danger.
Bobby

allow

to

no

intent

immediate

or

refusal

U•B•A's

his

an

its

as

notice

of

the

inspection.
The

UMWA

kindly,

MSHA

relevant

to

of

Bobby

B.

issues

to

be

noted

in

Gooslin

filed

a

decided

by

Bobby

Gooslin

the

in

work

not

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events

of

and

stoppage

it

put

directly

are

for

stage

the

To

course.

events

the

discharge

and

30

became

factual

issue

Gooslin

final

of

the

that

decision

because

"the

different

in

Gooslin's

protected

this

Recently
2
Company,

FMS•RC

considered

the

in

the

Gooslin's

weight

pursuant

to

section

Labor

o/b/o
1980)

David

2786

of

adopt

discrimination

weight

(October
if

the

U.S.

be

to

any,

the
414

14,
decision
36

(1974)

given

arbitrator

activity
Secretary

On

and

i05(c)

of

the

Gardner-Denver
to
approach
under
the
Act.
proceedings
the
of
to
arbitrators
findings

as

Bobby
Act.

Pasula),

the

findings

of

arbitrators.

Court

in

Alexander

follows:

findings

arbitral
We

believe
may

to

specific
hand,
was

Consolidation

v.

Supreme
held

evidence
consider

Pasula

given

arbitrator's

to

the

the

the
other

the

the

denied

be

failed

(hereinafter

accorded
of

against

Board

the

to

and

upholding

weight
resolve[d]

inapposite,"

totally

heard

should

be

Bobby

supra,

Review

discharge."
should

Fact,

award,

Arbitration

"authoritatively

it

the

Kennedy

ruled

substantial

proceeding,

Co.,

according

when

are

was

The

and

discussed

Gardner-Denver

We

issues

weight,

Commission

no

of
matter

that

Carbon.

that
for

reason

Findings
and

Arbitrator

Kennedy.

because

asserts

the

of

contract

Kentucky

asserts

decision

Bobby

31

the

of

Carbon

arbitrator's

and

T.

favor

in

Decision.

under

David

Kentucky

in

culminated

paragraphs
grievance

discharge,

review.

The

these

set

Arbitrator's

Given

arbitrator

Gooslin's
the

which

they

collision

a

on

•ile

hand,

at

1979,

were

Gooslin.

Weight
As

Carbon

negligent.

merely

the

30,

September

Kentucky

and
was

aid

that
the

Coal
Commission

v.

credibility
of

law

de

still
render

those

As

Gardner-Denver

accorded

fairness

the

the

Pasula

arbitrator

the

little

of

i.

•e

the

issue

of
when

decided

was

record.

the

"that

the

arbitral

findings."

to

the

standard

announced
little

to

entitled

are

did

judge

to

pursuant

arbitrator

the

not

in

err

Ibid.

Pasula,

in

or

weight

no

activity

MSHA

(a)
inspection

safety
concerning

of

in

this

in

the

supra,
the

for

to

allow

UMWA would

have

the
the

MSHA
time

MSHA
notice

HSHA

to

permitted
(b) the

question

its

inspect

was

to

designate

testimony

significantly

a

of

advance

any

representative

different

at

have
notice
to

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miners

no

would

Carbon

the

been

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have

without

finding
had

Gooslin

would

Kentucky
mine

the

adverse
If

mine.
there

obtain

to

conduct

to

arrived

arbitrator's

the

the
to
going
inspection,
because
policy

been

inspector;
in

time

same

following

efforts

Gooslin's
he

different
the

in

proceeding

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for

the

the

at

Act.

substantially

is

of

rights

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the

of

proceeding
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was

evidence

24-hours

i05(c)

arbitration

the

at

reasons

obtaining
the

challenge
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obligated

me

mine

the

This

run.

to

at

section

arbitrator

the

Gooslin's

successful

accompany
work
to

pursuant

to

presented

evidence

UMWA

the

considered

before

evidence

Gooslin's

Bobby

never

arbitrator

The

the

particulars:

and

arbi-

weight
the
to
employee's
one
is
solely
judge
parties
by the

reasons:

2.

an

that

protected

from

weight

no

or

conclude

findings
following

and

procethe

great

to

adequate

concluded

Commission

the

Pasula,

according
I

particular

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an

of

2795.

at

In

of

the

the

of

basis

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the

of

adequacy

addressed

arbitrator;

factors
to

the

consideration
before

issue

the

on

several

weight

congruence
the
degree
of

may

full

the

are

the

entitled

specifically

was

before

judge.

forum;
be

even

before

those

with

there

competence

gave
the

findings,

the

upon

to

the

of

view

own

congruent

arbitral

findings

issue
was

case

his

is

judge
judge

the

Arbitral

findings:
provisions;

special

the

law

determining

in

the

rights;

fact;

"common

Commission's
of

with

the

Arbitral

statutory

administrative

indicates,

arbitrator

the

a
on

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on

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role

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controlling

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of

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arbitrator.

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contractual

and

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accordance

considered

to

record;

in

arbitral

statutory
dural

is

not

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faced

the

customs,

issues

are

must

judge

responsibility

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it

of

that

judge,

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by

and

novo

addressing

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if

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facts,

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mine

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judges.

may
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mines,

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find

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practices
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shop"

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facts.

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problem

Commission's

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found

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testimony,

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consultation

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the

at

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each

of

hearing.
them

The

decided

arbitrator

individually

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was
work,
incredible.
In
the
instant
these
miners
admitted
that
proceeding,
discussed
they
Carbon's
Kentucky
refusal
to
allow
the
committee
safety
the
roof
fall
inspection,
which
occurred
few
a
hours
and
the
earlier,
of
bad
roof
and
alleged
problems
blocked
the
miners
escapeway.
Thereafter,
decided
not
to
jointly
work;
the
arbitator
was
(c)
of
unaware
the
fact
that
less
than
5 months
before
Carbon
incident,
had
Kentucky
13
miners
for
discharged
their
exercising

individual

conclusion

shift

in

of

catalyst

work

to

the

provided

Article

in

Although
and
proceeding
adopted

(d)(3)."

there

are

other

the

instant

the

by

arbitrator

are

entitled

C.

Applicable

Case

Law

In

the

Pasula,
of

history
other

under

Commission
that

Federal

that

the

a

violation

of

case

derance

of

motivated

in

issues

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by
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miner's

have

taken

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will

we

in

engaging

oul___dhave
at

consider
in

the

disciplined

2799-2800.

On

ultimate

burden

the

employer

to

for

to

consider
the

in

of

motivated
he

in

any

event

these

issues,
persuasion.

the

in

did

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resulted

in

it.

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employer

for

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miner

the

not

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would

miner

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however,
by
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although

that

of

pro-

these

On

also

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event.

a

(2)

have

any

in

was

employee
deserving
alone
activity

unprotected

prima
prepon-

burden

show

conduct

a

was

evidence

the

Act,

a

engaged

defend,

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t

if

action

he

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follows:

activity.

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him

he

the

of

case.

issues

as

ultimate

(I)

alone.

enough
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fact

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all

agains

fired

of

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adverse

unlawful,

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established

activities,

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employer

action,

Pasula

the

if

the

for

have

to

activity;

w

bear

instant

the

Issue

affirmatively

action

the

weight

protected

activities

findings

in

has

(i)

of

the

held

bear

may

was

adverse

deserved

did

the

that

Commission

the

must

unprotected

sufficient

he

by

preponderance

unprotected
must
employer

cern

part

motive

the

not

that

any

a

his

part
the

(2)

upon

say

as

arbitration

based

conclude

section

Section

the

on

(safety)

area,

that

anti-retaliation

proves

and

complainant
The
employer

suasion.

proving

of

of

this

efficient
the

that

and

arbitra-

the

in

a

work

not

gave

records

to

the

did
"was

work

similar

complainant

evidence

the

activity,

tected

The

the

no

of

and

statutes.

hold

We

facie

or

analyzed

section,

coetract

I

Definition

and

"the

it

Pasula,

little

to

Gooslin

in

the

who

employee

no

suffice
in

undermines

miners

Bobby
that

that

differences

Commission

the

that

(3)

and

evidence

of

(2)

matter,

the

lative

This

testimony

demand

III

with-

to

contract.

authority

was

full

the

the
(i)
incredible;
stoppage;"

that:

question

committee

test

under

rights

tor's

not

unprotected

originally
the

con-

adverse

same

must

show

of

discipline

and

that

that

he

the

legisarising

the

and

MSHA
in

Gooslin
of

violation

with

connection

a

solely
and,
stoppage

In

words

by

unauthorized

i05(c)
this

the

question

work

stoppage

can

I

much
of

be

protected
is

with

agree

of

the

actions

some

of

was

of

an

section

to

that

reach

issue

in

that

contention

Carbon's

Kentucky

and
which

instigation
to

reason

Act.

the

his

activitypursuant

no

the

instigated

discussion,

whether

there

ever

that

conclude

Similarly,

proceeding.

been

i05(c)

and

mine

was

unauthorized

an

Gooslin

the

Gooslin

that

section

that
at

in

activities

asserts

of

Carbon

Kentucky

by
protected

instigating

in

presence

concerning
I

the

Carbon

contends

his

me,

Act,

to

violation

no

has

the

of

discharged

due

activity

there

time.

was

Kentucky

Carbon

by

stoppage

Act

While

that

initiated

the

is

Kentucky

work
at

there

hence,

nutshell,

a

unauthorized

Gooslin

of
i05(c)
safety
complaint.
for
unprotected

discharged
work

that

assert

section

relestrike
the
did
Gooslin
(although
actually
instigate
Gooslin
whether
was
the
arbitration
to
question
Agreement
which
focuses
under
section
relevant
is
not
fired
for
i05(c)
good cause)
the
for
motivation
Carbon's
Posthearing
discharge."
Kentucky
simply
upon
that
Gooslin
Carbon's
conclusion
Carbon
at
20.
Brief
of
Kentucky
Kentucky
be
work
must
unauthorized
for
an
analyzed
was
stoppage
instigating
discharged
the
of
Gooslin
activities
on
relevant
the
night
Bobby
specific,
by examining
"the

issue

vant

in

whether

the

Wage

1979.

of

30,
September
constitutes
activity
of

the

Thereafter,

determination

a

protected

Did

to

section

Gooslin

Bobby

Engage

Gooslin

Bobby

contends
of

I05(c)

the

he

Activity?

engaged

on

September

30,

protected
when
1979,

and

notified

him

that

that
Act

Meade

William

Superintendent

Protected

in

in

a

complaint
or
safety
miners

all

.

be

.

miner

in

himself

of

this

Act,
of

.

coal

a

such

by

behalf

.

.

violation

by

this

to

operator

exercise

an

or

the

make

to

the

a

shift

midnight

the

purposes
Act
sets

alia,

filing

of

con-

forth

making

or

a
including
alleged
danger

mine

.

.

of

representative

others

pursuant

called

of

other

or

miner,

he

of

statutory

any

Act.

herein,

times
and

related

or

the

the
on

.

relevant

history

tive

of

afforded

right

under

health

or

because

or

a

complaint
notifying

activities

intended

he

commencement
the
to
of
the
mine
prior
inspection
after
Ii
for
the
mine
he
to
when
went
p.m.
also,
of
Section
the
i05(c)(i)
safety
inspection.
ducting
inter
of
certain
activity
including,
protected
types

safety
and,

of

i05(c)

section

Act.

D.

At

such

whether

made

under

activity

unprotected

or

be

must

Gooslin

Bobby

representative
the
specifies

of

a

miners.
which

in

manner

acting

was

the

in

Act

the

Neither

complaints

the

to

dual

capacities
legisla-

its

nor

operator

to

are

made.

The
falls
notified
notified

Inspector.

first

within

issue

the
him
Meade

of

of

scope

the
that

Kentucky

he

would
Carbon

make
be

a

safety

accompanied

emphasizes

that

to

run

or

by

the

at

no

call

to

U•A

also

Safety

District

did

Meade

Gooslin

inspection.
time

Meade

Superintendent

Gooslin's

activity.

protected
to

intent

call

Gooslin's

whether

is

here

Bobby

Gooslin

ever

the
specify
Kentucky

of

his

him

that

such

alleged

Act,

tion

with

his

The

next

"a

to

that

telephone

call

issue

violation."

engaged
Superintendent

whether

is

run

the

time

did

the

nature

any

Meade

and

inspection

or

operator
under

Hence,
protected

in

no

about

at

Superintendent

to

safety

notifying

Gooslin

true,
Gooslin

call
a

health

to

is
ask

conduct

to

complaint

or

conclude

this
ever

Gooslin's

intent

safety

or

I

that

UMWA's

amounts

While

personnel

conclude

the

call

complaint.

management
I

of

danger

the

his

Carbon's

complaint.

notified

of

of

nature

of

.

of

.

section

an

i05(c)
in

activity

connec-

Meade.

Gooslin's

at
the
mine
the
on
presence
night
Gooslin
that
asserts
protected
as
a
activity.
representaof
tive
miners
he
had
the
(safety
to
the
committeeman)
enter
"right
property
to
the
conditions
of."
Brief
of
UMWA at
investigate
18-19.
complained
does
Carbon
not
Gooslin's
Kentucky
be
to
the
on
mine
challenge
right
present
and
concedes
that
"neither
Meade
nor
instructions
that
property
Hager
gave
Gooslin
be
from
the
mine
site
prohibited
Brief
of
entering
Reply
Carbon
at
7.
I
find
that
Kentucky
Meade's
instruction
to
Superintendent
Gooslin
not
to
to
the
mine
that
come
is
irrelevant
in
the
night
determining

also

is

question

"

....

scope

of

tion

I05(c)

not

to

shift

protected
tile

Act

to

the

mine.

come

make

to

the

fact

that

cerning

Gooslin's

safety

a

ported
safety
resolved
already
was
a
merely
24-hours
section

ing

supplies
MSHA
safety

tion

that

fide

mantrips

or

right

to

that

the

Kentucky
Gooslin
at

ence

protected

complaint.
it

case

investigate
language
Carbon
the

mine

to

site

In

appropriate

determine

begin

with

the

of

night
to

mine

which
the

Any

evidence
reasons

Gooslin

is

given

(;58

one

is

subject
a

pro-

contena

of

had

complain

violation.

of

Part

the

Act.

by

the

relevant

by

Kentucky

to

the

inspection
was
making

an

the

complaint.
to

to

pretext

To

Protected

find

I
to

that

end,

I
find
that
his
Thus,
also
constituted
30,
1979,

i05(c)
in

the

Gooslin

safety

haul-

of

are

Gooslin

whether

September

Motivated

difference,

Carbon's

for

that

site.

section

problem
Carbon's

preponderance

MSHA

safety

pur-

issue

merely

was

the

the

no

the
areas

The

to

of
con-

complaint

a

either

establishes

underlying

claim

Kentucky

determine

to

to

go
the

Discharge
to

to

Act.

request
-

his

makes

Both

inspection
rejected.

Act

to

safety
Kentucky

it

concerning

is

unaware

such

about

the

or

was

that

any

concerned

conditions.

midnight

mantrips,

contention,
was

the

it

challenge

sec-

miners

danger

to

contends
on

that
to

of

prior
that

of

scope

alleged

an

related

and

UM•#A

authorized
i05(c)
or
alleged
danger

pursuant

Gooslin's
order

on

MSHA,
the

first

the

conditions

any

authorized

by

concurrent

of

unnecessary

about

was

was

committee

is

section

mine

a
complaint
of
I05(c)

the
of

the

policy

the

safety

contend

roof

safety

103(g)

activity

Was

bad

notice

particular

not

Gooslin

and

section

does

of
the

to

section

purported

this

In

E.

whether

24-hours

to

pursuant
bona
a

As

policy.
i05(c),

under

in

-

UMWA
part

regulations

its

evidence

the
the

on

mine

about

Carbon
Kentucky
hauling
supplies

with

against

this

challenge

Rather,

tile

at

the

narrow

representative

or

Carbon

at

dealt

pretext

activity

tected

Carbon

problem.

on

arrived

Kentucky

presence

problem

notice

under
of

Gooslin
to

cannot

operator
the
miner

instructing

complaint
Kentucky

a

violation.

safety

A mine

activity.
by

of

pres-

Activity?

this

issue,

it

Carbon

for

Gooslin's

is

in

me,

As

a

A.

On

the

there

sole

for

reason

As

work

stoppage

occurring.

Mr.

Fletcher's

report

to

the

sole

action

what

do?

the

was

was

follows:

was

taken?

then

instructed

I

A.

with

(R.

hill

the

on

of

result

a

mind

my

Gooslin

Mr.

presence

you

presented

were

that

his

-

illegal

the

Q.

in

they

as

as

did

what

report

Fuel

decision

the

made

examination

direct

on

facts

the

question
reason

testified

Fletcher's

Mr.

of

basis
no

was

the

sole,

of

result

Q.

he

that

Carbon

for

Services,

Personnel

R.
James
Manager,
Reynolds,
discharge.
Carbon's
company,
parent
Kentucky
Co.,
testified
Mr.
Gooslin.
Reynolds
discharge

Fletcher

Mr.

slip

discharge

to

intent

to

suspension

a

prepare

....

333).
On

In

Q.

sole

the

was

A.

That's

Q.

In

he

that

if

That

dispute

appeared
A.

Mr.

on

I

believe

the

words,

the

Mr.

set

work

go

you

at

Mr.

Goosin

no

on

the

presence
without
yes,

stoppage,

and

the

Mr.

in

hill.

Gooslin

sufficient?

been

Gooslin's

off

labor
hill
resulted

time

that

fact

mere

circumstances.

of

with

that

were

have

would

work

complete
appearance

following

hill

your

go

words

and

support

on

the

hill

was

the

question.

360-361).

discussions
that

stated

led

which
he

initial

did

not

suspension
on

William

superintendent,

Carbon's

Kentucky

testified

other

for

catalyst

ready

strike

the

to

Gooslin's

actions

In

the

on

mine

unrest
his

Q.

relying
a

"wildcat"

the

the

l'm

to

determination

stoppage?

work

a

had

or

hill

that

action

particular

no

Gooslin

Mr.

by

No,

there's

words,

instigated

whatever

(R.

other

we

the

right.

on

A.

on

presence

stoppage?

work

the

follows:

as

Gooslin's

Mr.

for

reason

relying

are

conclusion

your

testified

Reynolds

Mr.

cross-examination

cross-examination

suspension

Gooslin's

to

make
of

decision

the
Gooslin

on
as

to

October

follows:

the
in
participated
he
Although
discharge.
he
signed
Gooslin,
discharge
Meade
1979.
Superintendent
i,

Meade,

and

to

Q.
terminated

to

Calloway

an

attempt

to

A.

That

on

a

safety

and

the

think

I

his

that

reason

he

September

out

came

1979

29,

the

on

presence

work

Gooslin

Mr.

because

was

of
night
inspection?

unauthorized

the

sole

Carbon

hill

in

did

stoppage.

526).
The

Carbon

that

to

Kentucky
in
question
discharge

Hence,

it

fact
conclude

has

the

F.

James

question,
time."

that

mine

on

at

the

mine

least

at

the

test

set

a

prima

facie

mine

on

Kentucky

motivated

of
for

the

it

Act,

Gooslin

his

by

forth

in

Pasula,
of

a

By

His

was

that

unauthorized

an

protected

activity.
conclude

I

supra,

violation

upon

Since

follows

instigating

part

case

that

-

at
least
in
based,
part,
the
in
night
question.
the
on
in
night
question

in

415,

the

preponderance

his

decision

based

from

of

that

section

Carbon

refers

being

informed

be

allowed
show

Although

Gooslin

of

the

credible

be

classified

this

i05(c)(i)

to

"Gooslin's

of

Kentucky
basis
asserts

statement,

defiant,
Carbon
for

instigated

on

the

at

"the
the

21.

Such

an

independent
circumstantial
wildcat

of

is

the

strike."

in

Posthearing

66O

by

any

in

that

Christian

the

mine,

Gooslin

run

this

place."

find

that

he

made

the

form

of

protected

of

Gooslin,

actions

refers,
Posthearing

It
"

....

insufficient

spoken

evidence

made

I

statement,
that

specific
question.

in

mood

allegation

at

James

don't

to

words

activity.
any

night

confrontation-oriented

discharge
that

identify

to

night

and

of

they

amount

unprotected

Gooslin,

the

statement

establishes
not

Bobby
on

Foreman

this

making

does

mine

inspection
that

Hagers

evidence

the

one

Shift

safety

a

denies

as

unable

by

Activities?

"actions

only

to

damned

statement

is

above

make

to

these

at

Gooslin's

on

Unprotected

discharge

to

presence

After

Carbon
the

decision

Kentucky

to

must

Kentucky

the

Gooslin's

not

and

made

to

Clearly,

statement.

activity

Motivated

who

going
588).

(R.

Also

addition

also

would

"l'm

Gooslin

to

361).
night.

(R.
he

then

the

i05(c)
discharge,

Reynolds,
in

he

Gooslin

any

thus,

determination
is

-

section

his

Discharge

R.

that,

apart

stoppage

to

that

Gooslin's

stated

that

Carbon's

and,

the

at

presence

Act.

Was

said,

Kentucky

presence

motivated

pursuant
established

has

stoppage

establishes

personnel

management
Gooslin's

that

at

pursuant
was

Carbon

work

work

established

•erefore,
of

that

Gooslin's

stoppage,

Gooslin

the

presence

activity

Gooslin
work

caused

unauthorized

that

protected

believed

him.

Gooslin's

of

by Kentucky
Carbon

clear

is

the

instigated
the

testimony

above

clearly
the
night

I

make

the

i

number

instigate
(R.

isn't
Meade,
by Kentucky

Mr.

was

to

words.
this

Brief

Carbon

demonstrates
of

Brief

establish

Kentucky
case

however,

Kentucky

that
Carbon

22.

at

trator's

findings.

signaled

the

refused

fact,
ally,

the

roof

and

a

from
apart
activity

act,

any

unprotected

stitute

accrimonious

and

tile

time,

Would

G.

The

they
fails

record

discharge.

relations

between

the

UMWA and

Gooslin's

spoken

words

Kentucky

Carbon

this
roof

bad

to

generwork.

which

con-

not

Gooslin

this

at

Kentucky
activity,
unprotected

as

hos-

the

of

light
Carbon

also

to

discharge

him.

Discharged

Gooslin

For

the

Unprotected

in

Pasula,

where

decision

Have

Kentucky

supra,
In

who

miners

the

after

that

reviewed

as

the

discussed

and

establish

to

words

spoken

his

plausi-

by

concerning
decided
jointly

motivating

Carbon's

here

dispute

Pasula

that

at

There

machine.
for

the

Pasula

to

work."

In

the
in

clude

that
his

Pmgers

was

don't

they

affirmative
violation

Carbon

defense.

by

of

refusal

"I'm

going

Kentucky

Carbon

R.

Reynolds

Carbon

concluded

James

presence
the
Act.

of

i05(c)(I)
would

have

been

has

failed

to

of

discharged

the

its

meet

sustained

has

Gooslin

Kentucky

Act.

661

for
burden
his

part,
damned
Gooslin
the

However,
Meade

work

unauthorized

the
mine

con-

that

contends

that

on

also

these

Superintendent

the

mine

in

and,
show

to

stoppage.

and

at

I

Act.

activity

work

unauthorized

Gooslin's

i05(c)

that

the

at

presence
the
of

his

place."
an

Bobby
section

have

we

Pasula's

-

I05(c)
protected

section

stating

this

run

Gooslin

that

conduct
Act

Gooslin's

that

because
in

Kentucky

section

of

fired

that

instigated

1977

Indeed,
caused

have

would
is

.

evithe

disciplined."

Mine

under

testimony

was

the

the
that

obvious

claims
.

conclude

I

of

under
that

by

instigating

establishes

Kentucky

The

2796.

at

been

have

2801.

activity

unprotected

establish

the

operate

would

that

claim

been

Consol

protected

was

Gooslin

alone.

to

Id.

will

presumably

else
Pasula

the

"we

state,
the

in

that

so

are

event

any

case,

for
discharged
quoted
previously

stoppage
activity

in

at

was

clearly

on

activity."

Consol's

event

any

protected
Id.

instant

that

to

anyone

find

to

support

that

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under

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employment

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of

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all

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for

dismissed

want

prosecution.
5.

following

On

September

activities

30,
which

1979,
are

Bobby

Complainant

protected

662

under

Gooslin

section

engaged
of
i05(c)

in

the

the

Act:

make

a

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(b)

by

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Kentucky
and

supra,

7.

activity
of

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forth

set

as

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other

its

determination

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him.

of

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Gooslin

was

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that

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establish

to

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action

activity

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to
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by

conclusion

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said,

determination

its

and

enter

to

place."

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run

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to

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Kentucky

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9.

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Kentucky

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of
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not

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by
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show

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1979,
does

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mine

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inspect

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section

for

because

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8,

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30,

September

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following

to

on

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and

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at

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Complainant

6.

the

at

presence

mine

the

of

Meadenotifying

committeeman,

inspection.

committee

safety

a

William

Superintendent
UMWA safety
as

to

capacity
inspection

his

in
Gooslin,
committee
safety

that

him

call

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Bobby

Gooslin

would

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activity

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alone.

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former

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with

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Gooslin

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pay,

interest,

13.

Complainant

other

or

this

incident

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decision

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order

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civil

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and,
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to

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employment
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claim

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activities

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procedure

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of
of

assessment
to

proposed

concerning
Rule

Commission

proposed
and

his

to

rights.

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records,
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on
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posted
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him
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monetary

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by

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at
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position

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back

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section

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for

a

civil
further

assessment

25,

29

is
penalty
proceedings.

C.F.R.

the

ORDER

WHEREFORE,
of
prosecution

want

IT

FURTHER

IS

SUSTAINED

and

position

ORDERED

is

DENIED.

ORDERED

that

Carbon

all

Kentucky

Carbon's

Complainant's
be

with

ORDERED

Expunge

that

shall

Complainant

FURTI•R

IS

i.

IS

Kentucky

at

IT

IT

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to

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prior

rights.

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shall:

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to

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to

of

complaint

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full

motion

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from

his

employment

records;

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2.

Post

mine

where

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IT

tive

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ORDERED

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civil

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MSHA

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interfering
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further

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the

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penalty

administra-

proceedings.

/

A.

James

Distribution

Certified

William

F.

Mary

Lu

Bernard

C.

Esq.,

Christian

Timothy
One

Valley

15th

P.O.

III,

Esq.,

Charleston,

553,

Esq.,
DC

of

the

Solicitor,
Nashville,

Courthouse,
900

Pafunda,

Box

Office

Esq.,
U.S.

Esq.,

Timothy
Biddle,
•shington,
W.

280

Jordan,

Lynch
P.O.

Judge

Mail:

Taylor,
Room

Labor,

Laurenson,

Crowell

St.,

NW,

668,

Pikeville,

Jackson,

Kelly,

Box

U.S.

TN

Department

Washington,

20005

DC

KY

Holt

41501
and

O'Farrell,

WV 25322

and

Moring,

ii00

Connecticut

Inc.,

Suite

Ave.,

20036

Carbon
Pohl,
Esq.,
Square,
Charleston,

of

37203

Industries,
WV

664

25301

1300,

•#,

FEDERAL

AND

SAFETY

MINE

OFFICE

OF

ADMINISTRATIVE

2

SKYLINE,
5203

LEESBURG

PIKE

COMMISSION

JUDGES

MAR I 8 |98|

VIRGINIA

22041

Civil

Penalty

Proceeding

HEALTH

AND

Docket

(MSHA),

ADMINISTRATION

No.

A.O.

Petitioner

No.

SE
80-49-M
09-00518-05001

City

Sweet

V.

Mill

&

Quarry

QUARRIES,

CITY

SWEET

LAW
FLOOR

LABOR,

OF

SAFETY

MINE

REVIEW

lOth

CHURCH,

FALLS

SECRETARY

HEALTH

Respondent

DECISION

Georgia,

Judge

Department
Willie

for

the

respondent.

of

the

Case

Georgia,

Elberton,
Before:

the

for

is

against

was

Health

of

penalty

civil

$40

56.19-128(a).

CFR
held

November

on

in

citation

The
on

October

of

the

23•

citation

There

is

The

cited

that

"[R]opes

than

six

broken

1980,

this

case

was

of

by

the

petitioner

of

the

Federal

proposing

s

e,

Athens,

Georgia.

issued

by MSHA
practice

or

standard

and

citation

the

Mine

civil

a

safety

mandatory

contested

condition

the

of

lay

be

not

wires

in

any

fall

main

the

hearing

a

Hubbard

Wayne

Inspector
described

used

for

wires

crown

section
when

hoisting

per

face

the

on

lay

in

leg

hoist.

56.19-128(a),
have:
they

(a)

shift

the

on

rope

standard,

safety

mandatory

broken

six

than

more

shall

pro

follows:

as

were

several

25,

in

and

1979,

U.S.C.

30

violation

alleged
Respondent

one

ll0(a)
820(a),

section

to

pursuant
of
1977,

Act

for

initiated

proceeding

penalty

respondent

and

Safety
30

a

the

Atlanta,

Labor,

Simmons,

Koutras

Statement

This

of

U.S.

petitioner;

Esq.,

Welsch,

S.

Ken

Appearances:

requires
more

lay;".
Discussion

In

of

Mr.

foreman

of

support

and

Hubbard,
James

Bell.

the
the
At

presented
petitioner
violation,
alleged
of
the
testiomny
presented
respondent
the

conclusion

665

of

all

of

the

testimony,

the
its
I

testimony
quarry
advised

the

that

parties

initial
that

there

the

citation.

in

were

parties

six

Finding

concerning
The

basis

the

fact

of

copy

of

which

for

violation

incorporate

broken

the

fact

that

the

In

view

issued

099070,
this

and

of

section

of

October

on

is

proceeding

any

one

the

but

they

29,

in

charged
29,

1981,
The

arguments

declined

to

1981,

Order,

conclusions

are

and
find

I

Order
that

petitioner

as
56.19-128(a),
charged
1979.
23,
the
Accordingly,

has

failed

in

Citation

citation

to

No.
is

VACATED

DISMISSED.

or A.ou ra/s
Administrative

Law

Judge

Distribution:

Willie

M.

30635

Ken

Sweet

Simmons,
(Certified

S.

Welsch,

1371

Peachtree

City

Quarries,

Inc.,

Box

727,

Elberton,

GA

Mail)

Esq.,
St.,

do

establish

to

and

my

further

or

failed

January
findings

my

was

parties.

exceptions
had

those

as

January

on

on

file

violation,

in

lay

it
establish

reference.

foregoing,

the

violation

a

testimony,
failed
to

writing

petitioner

and

had

served

to

Conclusion

prove

and

in
in

and

of

detailed

hereto,
d by

wires
reduced

was

Order,
opportunity

is

attached

evidence

petitioner

and

an

on
finding
my
finding

my

the

that

finding

afforded

were

herein

fact

That

of

all

on

finding

Preliminary

a

as

based

preliminary

U.S.

NE,

Department
Rm.

330,

Of

Atlanta,

Labor,
GA

Office

of

30309

(Certified

the

Solicitor,
Mail)

so.

ATTACHMENT

FEDERAL

SAFETY

MINE

80'49-M

DECISION/SE

FINAL

TO

OFFICE

HEALTH

AND

OF

ADMINISTRATIVE

2

SKYLINE,
5203

FALLS

FLOOR

LEESBURG

PIKE

VIRGINIA

January

SAFETY

MINE

29,

1981

Civil

Docket

(MSHA),

FINDING

is

This

civil

a

against
Safety
penalty

and

Health

of

$40

30

56.19-128(a).

of

Of

briefs.

petitioner
preponderance

has

believe

it

not
to

also

like

would

concern

established

a

the

evidence.

necessary

to

Respondent,

acting

established

that

stated

in

I

the

cited

observed
the

determine
n•re

issue

concerns

language

more

were

on

once,

and

the

that

stated

that

he

"would

across

something,

I

come

offer

that

that

with

that

in

outer

damaged

he

by

of

in

areas,

were

in

667

any

of

the

cable

i0

in

and

he

did

was

the

on

as

and

the

found

in

that

he

another,
not

broken

wire

same

not

an

arguments.

testified

fact

as

them

additional

lay

lays

rope

not

preliminary

a

placed

did

like

lay

afford

be

Hubbard

he

88).
any

issue

to

the

portion

89).

then

(crown)

observed

(Tr.

filing

wires

Inspector

visible

in

would

a

had

wires

would

I
and

finding
interpretation

one

(Tr.

petitioner

broken

six

not

or

something"

position

broken

whether

stated

but

do

whether

state

conclusions,

counsel

parties

MSHA

to

by

violation

breaks

the

I

hearing

conclusion

standard

of

six

the

was

the

than

wires
the

brief,

if

than

the

At

a

cited

56.19-128(a),

Although
broken

whether
than

issue

section.

a

standard

and

the

CFR

fact

the
take

to

eight

breaks

30

citation

Mine

civil

a

court

of

to

more

section

advised

regarding

critical

regulatory

s_•e,
were

cited

previously

finding
opportunity
The

the

pro
there

the

the

took

Federal

opportunity
findings,
proposed

Petitioner's
and

petitioner

the

an

to

file

the

of

Georgia.

Athens,

opportunity

the

the

violation

research

have

to

of

afforded

by

proposing
safety
mandatory

contested

post-hearing

any

little

a

U.S.C.

in

Case

ll0(a)
820(a),

violation

particular
of

do

1977,

Respondent
25,
1980,
were
parties

file

to

30

alleged

one

the

hearing
desired

they
or

for

of

the

section

to

pursuant
Act

November

on

the

Mill

&

Quarry

ORDER

initiated

proceeding

penalty

respondent

the

AND

of

Statement

held

City

QUARRIES,
Respondent

CITY

PRELLMINARY

was

09-00518-05001

No.

Sweet

V.

80-49-M

SE

No.

A.O.

Petitioner

CFR

Proceeding

Penalty

HEALTH

AND

ADMINISTRATION

SWEET

JUDGES

22041

LABOR,

OF

SECRETARY

LAW

lOth

CHURCH,

COMMISSION

REVIEW

cut

out

and

examined

make

to

respondent
the

that

so

nonetheless

this

determination.

abate

to

Although
by

citation

the

damaged

portion

Was

purchased

and

installed

Hubbard

Mr.

repositioning

not

a

new

rope,

reel

respondent

$2100

of

cost

a

the

on

end",

at

the

permitted

rope

"working

the

at

the

52).

(Tr.

Discussion

on

The

section

October

23f

condition

104(a)
1979,

56.19-128(a)

were

in

several

leg

hoist.

shall

not

broken

wires

in

of

hoisting

any

cable,

alleged

defective

area

for

meaning
Terms,

of
U.S.

a

of

the

rope.

is

the

distance
the

helix

of

A

Various

follows:

as

six

than

more

the

is

feet

long,

some

i0

inches

of

1968

Interior,

a

and

3/4
the

of

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long.
Mineral,

Ed.,

defines

the

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of

lay

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to

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term

strand.

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of
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1200

of

aires

1241

pg.

in

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follows:
made

rope

states

in

rope

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The

length

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required

as

(a)

length

in

of

"wire

rope

The

axis

ratio

part

56.19-128(a)
have:
they

The

makes

the

length

shift

to

area

an

parallel

strand

about

lay

per

the

length,

rope.

distance
a

the
i000

of

or

in

term

section

follows:

as

direction,
the

wires
on

rope

when

"lay",

term

part

which

The

the

violated

crown

fall

that

agreement

Department

pertinent

by

describes

believed

section

approximately
encompassed

the

strands

pertinent

in

are

is

respondent

the

on

lay;".

core

The

Hubbard,

broken

main

for

used

parties

in

six

the

requirements
be

steel

"lay"

served

Ellis

inspector

than
of

lay

The

Related

the

more

pertinent

"Ropes

the

099070,

follows:

as

There

inch

No.

Inspector

which

practice

or

The

citation,
MSHA

by

of
for

twisted

of

strands
in

shafts

constructions

of

wire

of

in

the

used

the

Dumber

each

strand.

winding
strands

wire.
and

rope
rope

668

A

steel

underground
are
designated
and

the

number

wire

haulages.
by
of

wires

in

During
mining

the

course

of

was

subject

operation

that

respondent

(Tr.

4).
Petitioner
(Tr.
and
81),

faith

findings
that

is

that

it

As

based

the

effect

business,

assuming

remain

the

in

will

affect

critical
the

supports

in

Inspector

remaining

fact

established

following

in

assertion

occurred.

this

case

a

violation

that

Based

Hubbard,
my
preliminary
a
and
I
violation,
as
set
testimony
forth

MR.

You

A.

Q.
three

my

review

finding

is

on

invite

the

of
that

I

ability

to

the

record

cited

testimony

petitioner
and

me

how

or

three

of

has

79-81

in

lines.

know

I

breaks

But

beside

Q.
tell

it,
We
you

wrapped
that's

been

the

of

in

crown?

a

broken

broken

was

wire

one

broken

six

of

that

prove

six

were

that

were

you

might
same

find

know

I

six

those

there

wires
six

were

counted

breaks
eight
in
You're
Okay?
asking
be
about
talking
two

lay.

one

speaking,

you

not

wire.

We

when

wire

could

that's

wire
the

not

it'll

goes,

broken

one

be.

same

and

go

another

wire.

that's

not

the

same

wire.

Common

it's

not

the

same

wire.

But

that

how

around,
broke

there
wires

there

that

we

the

you

know

can

in

that
in

•lere

have

you

generally
of

wires

six

times

do

know

you

instead

wrap?

669

it's
of

six

not

wires

sense

the

the

thing
same

broken

not

the

to

crown?

a

breaks

ten

two

that

How

telling

and
do

could

you

in

I'm

A.

broken

that

been

know

crown?

broken

lay

a

do
a

six

were

have

There

in

wires

in

matter,

the

attention

68-71

pgs.

determine

you

the
I

(Tr.
83-85).
respondent's

whether
of

good

on

$40
this

is

counsel's

at

there

could

How

broken

wire

did

How

wires.

being

of

question,

lay.

a

There

times.

that

say

In

wires?

will

find

basis

SI•ONS:

Q.

one

would

of

transcript:
BY

I

the

nonserious
in

in

Violation

of

question

petitioner's

violations

tentative

respondent's

business.

The

of
citation
made

in

was

penalty
penalty

my

adversely

on

rope

citation

as

I

that

the

assessed

affirmed

were

record

and

its

stipulated

prior
history
abated
the

of

the

that

parties

established,

were

that

conceded
the

of

condition

Fact

standard

no

testimony

initially

it

with

negligence

find

it
that

and

violation
the

the

Act,
respondent

the

ordinary

of

conclude

cannot

that
on

surrounding
ultimately

likely
for

respondent

the

operator

conceded

from

circumstances
would

hearing,
to

small

a

assuming

resulted

the

trial

THE

of

one

There's
isn't

WITNESS:

these

cutting

breaks

the

JUDGE

and

out

rope

way
same

actually

What

KOUTRAS:

I

no

the

if

it

definitely

can

wire

broke

taking

it

six

were

that

say

twice

without

apart.

breaks

in

the

standard.

the

same

wire?

THE

BY

WITNESS:

JUDGE

Q.

Would that

be

A.

That's

way

we've

there's

six

breaks

See,

the

lay."

So

the

if

Q.

Well,

breaks

in

six

broken

wires

wires.

Not

figure?

WELCH:

six

broken

JUDGE

time

in

my

six

than

individual

wire.

one

that?

how

is

standard

the

that

such

writers

magical

a

but

answer,

lay"

any

and

I

would

be

different

than

six

broken

More

does

it

think

I

"more

say
would

have

wires.

wires

in

any

take

any

notes

lay,

wires.

Yes.

Mr.

Hubbard,

all

on

at

event

make

any

I

WITNESS:
notes
more

was

JUDGE
wires

than

did

this

sketches

you

at

thing?
anything?

or

I

nobody

assume

picture.

a

TIIE

got

in

KOUTRAS:

you

says,
means

in

more

"more

wire,

one

that

wondering
Why

can't

I

That

individual

the

Did

interpret

wires.

KOUTRAS:

JUDGE

took

you

in

standard

five?

WELCH:

of

breaks

was

wires

means

interpreted

six

interpretation

my

MR.

I

broken
not

•.

me,

do

that,

six

•y

say

any
say

how

only
at

time

in

Welch,

arrived

to

know.

violation?

a

wire?

one

doesn't

It

Mr.

to

don't

I

--

KOUTRAS:

six

than

don't

I

the

--

or

less

per

lay

THE

WITNESS:

have

same

There
several

Lay

a

thing

only
the

KOUTRAS:
in

don't

thing.
I

put
the

citation

more

than

six

were

the

my

thing

--

of

The
in

main

rope.

only

thing

notes

at

I've
this

says.

broken

crown

the

SI•ONS:

•.

that

proof
Crown?

--

you

try
that

of

I

to

convince

WELCH:

whether

did

question

is

something

that

he's

six

be

this

case,

by

in

would
here

preponderance

whether

or

The

$64

to

answer

of

part

Yes,

KOUTRAS:

I

they

burden

of

the

lay.

one

any

same

answer.

is:
I

his

of

in

as

lay.

one

any

were

cannot

before

I

view

in

wires

not

question

the

sir,

wires

broken

inspector

we'd

factual

understanding

my

six

that

you

it's'a

broken

to

the

upon

that

the

it

is

question

a

affirm

can

the

proof?

--

think

the

would

answer

have

probably

affirmative.

WELCH:

with

Without

researching

any

I'd

cases,

have

to

you.

WELCH:

MR.

A.

still,

I

•en

you

The

broken

can't

without

had

six

was

in

the

rope

a

--

side

different
apart;

them,

counted

I

weren't

can't

substantiate
the

wires
in

where

wires

dissecting
broken

by

side

were

to

that

WELCH:

Q.

it

would

in

convince

to

than

more

as

Is

JUDGE

ways

What

case

try

according

called

citation?

BY

wires

preponderated

speaking

were

KOUTRAS:

JUDGE

agree

there

count

The

MR.

broken

briefs

you've

I'd

sir,

inspector,

in

pictures.

take

six

any

that

part.

the

strictly

not

wire

be

that

me

Yes,

or

testimony,

to

for

established

think

I

•.

than

what?

or

call

in

I

troublesome

agree
to

were

you've

that.

The

the

or

if

nowadays.

"More

says

have

you

broken

evidence?

the

•.

to

disagree

you

your

and

It

that's

So

do

I

Do

say.
wires

you

eight

or

but

No,

lay."

Do

done

were

KOUTRAS:

JUDGE
one

what

is

six

WITNESS:

THE

any

This

there

in
the

strand.

otherwise,

all

the

This

there'd

two,

or,

be

be
no

is

done
way.

wires?

strand,
only

same

but
two

determine

could
One

could

broken

there's

you

spread.
strand

same

in
--

that

rope
one

the

were

that
that
without

the
each

if
wires
one

taking

Q.

Do

this

particular

'79,

in

broken

say

recall

you

rope

Sweet

City

wires

counting
talking

your

we're
when

Quarries

broken

any

about

you

counted

strands

but

wires

on

October

them

where

of

23rd,
the

were?

A.

They

that

there

in

were

different
six

were

SI•ONS:

MR.

in

that

Sir,

broken

think

I

can't

I

definitely

wires.

ought

you

to

dismiss

this

thing

here.

ORDER

view

the

foregoing,

(30)
thirty
concerning

from

In

within
arguments

of

expiration
a

of

final

days
my

this

decision

in

the
the

parties
date

finding

preliminary

time

period,

this

matter.

I

will

afforded

are

this

of

order,
in

proceed

this
to

Administrative

opportunity,

an

file

to

any
and

matter,
finalize

and

Law

Judge

727,

Elberton,

further
upon

render

"•'

Distribution:

Willie

M.

30635

Ken

Siphons,
(Certified

S.

Welsch,

1371

Peachtree

Esq.,
St.,

Sweet

City

Quarries,

Inc.,

Box

GA

Mail)
U.S.

NE,

Department
Rm.

339,

of

Atlanta,

Office

Labor,
GA

30309

of

the

(Certified

Solicitor,

Mail)

FEDERAL

MINE

SAFETY
OFFICE

OF

ADMINISTRATIVE

2

SKYLINE,
5203

FALLS

SECRETARY

AND

LAW
FLOOR

LEESBURG

PIKE

CHURCH,

VIRGINIA

COMMISSION

JUDGES

22041

Civil

Penalty

Proceedings

HEALTH

Docket

(MSHA),

ADMINISTRATION

REVIEW

10th

LABOR,

OF
SAFETY

MINE

HEALTH

AND

A/O

Petitioner

Nos.

79-139-PM

DENV

41-00046-05001

No.

V.

Docket
EL

PASO

QUARRIES,

ROCK

A/O

Inc.,

No.

79-176-PM

DENV

41-00046-05003

No.

Respondent
E1

Paso

Plant

Quarry

&

the

Solicitor,

Texas,

for

DECISION

John

Appearances:

O'Donnell,

H.

of

Department

Before:

has

I

to

No.

159658

of

because
berms

on

Citation

In

concerning

could

the

operator

this

type

No.

159665

because
be

has

the

elevated

and
hauling
explosives

they

in

did

occur.

to

he

to

as

me

I

which

all

the

the
have

present
did

for

and

opinion

my

wanted
that

stated

as

I

there

A

penalty

decision

in

this

involved

and

vacatedthe

hauled

were

is

that

did,

road.

roadway

dumping,

but

hazardous

thought,
of

original
this

findings
and

violations

Secretary

that

loading,

berms

my

the

the
whether

vacated

given

any

Respondent

not.

order.

opinion

for

and

to

cases

had

I

made

already
gravity,

have

state

Respondent.

theabove
which

citations

that
to

Paso,

remanded

the

negligence
decided

disagreed

Commission

lack

the

of

used

Commission
of

and
the

reply

was

not

the

I

U.S.

Jr.

six

already

E1

Moore,

to

opportunity

an

Citation

C.

of

Petitioner;

Esq.,

reinstated.

evidence

not

Scoggins,

except

has

parties

for

1981,
as

criteria

additional

was

Charles

28,

Commission

Commission

did

Judge

proceedings

necessary

the

W.

January

On

further
the

Ralph

Office

Esq.,

Labor,

of

case,

citation:

673

a

I

a

low

very

is

made

citation

this

site.

blasting
degree

of
not

following

The

negligence
require

assessed.

the

The

citation.

did

standard

the

$i00

to

in

statement

Citation

No.

159665.

was

violated

in

56.9-87

inoperative
haulage

was

35-ton
it

if
miner.

is

truck

any

In

requires

a

will
and

proof

in

If

became
known

present

case

penalty

such

this,

as

if

becoming
cracked,

and

night,

every

drivers
be

to

fixed

operator
break
down.
when

it

it

that

instructed

to

the

where
in

assessed

I

I

etc.

order
assess

$i0,000
headlights
assessing

am

a

of

equip-

to

check

down

and

there

is

not

do

just

that.

when

the

it
no

horn

should

have
the

In

VACATED.

is

deterrent

Act

future

to

violations.

the

all

In

that

could

was
Respondent
doing
trucks
in
safe
condikeep the
operating
be
deterrent.
a
to
a
penalty
high
enough
would
it
not
horns
from
penalty,
prevent
from
windshields
from
burning
out,
becoming
of
for
this
"no
fault"
penalty
$i0.00

to

a

inoperative,

be

to

believe

I

the

piece

a

did

supposed

is

failure

a

that

is

break

the
take

when

that

obligation

does

a

equipment

whenever

believe

guarantee
His

damage

and

not

a

or

such

mechanics

by
do

I
to

all

are

circumstances,

expected
reasonably

cannot

even

up.

case

civil

I

But

that

The

shop

repair
this

reasonably

tion,

mine

indicates

was

serious

equipment

operator
had
been
able
determine
to
inspector
and
that
the
mine
inoperative
operator
of
violation
would
be
a
established.
it,
the
citation
circumstances,
however,

the

A

morning

the

not

often

evidence

of

CFR

alarm
This

do

could

piece

30

reverse

trucks.

company

naturally

that

is

automatic

another

over

the

to

occurs.

ment

a

is

every
backed

checked

vehicle

be

the

allegation
the

the

and

back

But

of

one

on

truck

to

were

The
that

a

violation.
Citation

These

three
elevated

certain
or

159669,

Nos.

"Crossovers,
condition.

Where

a
creating
in
question

walkways,
provided

the

situations

where

there

elevated

walkways

but

intended

to

equipment

protect
or

the

established.
Hazard

the

three

citations,

Citation

No.

The

ing

an

under

involved
and

I

handrails,
shall

necessary"
falling

and

has

decided

were

no

allowing

in
a

civil

be

of

good

in

standard
the

that

the

standard

of

$i00

these

also

is

there

was

violation

a

condition

to
or

ramps

as

toeboards,
the

apply

to

elevated

Inasmuch

penalty
$300 for

assess

shall

maintained

the

from

platforms.

there

negligence
justifies
accordingly

that

states

stairways
and

to

tools

falling

provided."
in

of

the

56.11-2)
and

be

of

was

to

exist

for

each

and

I

these

of

citations.

195691

allegation
electrical

Commission

was

ramps,

attached

not

were

below

miners

C.F.R.

with

danger

persons

to

elevated

"where
a

the

platforms,

There

think

words
was

toeboards

danger
(30

toeboards

necessary,

interpreted

I

because

platforms
standard

construction

issued

were

elevated

substantial

159695

citations

The

equipment.

and

159673,

in

this

transformer

citation
was

was

not

that

locked.

the
The

gate
fence

in

fence

the

had

a

hole

surroundin

it

big

for

enough
and

like

gate

be

Commissioner
locked

when

there

that

is

gate

circumstances.

A

I

$5

for
in

point

the

can

locked.

of

penalty

in

assessed

was

the

see

hole
but

not

was

to

big

a

penalty

fail

I

hazardous,

is

the

(a

through

Backley

fenced

inadequately
fact
by the
the

walk

to

someone

fence.

see

additional

no

Nor

this

do

I

hole),
that

requiring
the
Having
hazard

find

a

transformer
caused
in

negligence

any

assessed.

is

ORDER

It

civil

therefore

is

of

penalty

ordered

that

Respondent

pay

Charles

C.

to

within

MSHA,

30

days,

Department

of

i/

$415.

Moore,

Administrative

Jr.

Judge

Law

Distribution:

John

O'Donnell,

H.

4015

Labor,

Ralph
79925

i/

These

decision.

W.

Scoggins,
(Certified

assessments

Office

Esq.,

Wilson

Blvd.,
Esq.,

of

the

Solicitor,
VA

Arlington,

U.S.

22203

(Certified
West,

Suite

342,

5959

Gateway

addition

to

those

contained

Mail)
E1

Paso,

my

earlier

b•il)

are

in

in

TX

a

FEDERAL

SAFETY

MINE

OFFICE

OF

ADMINISTRATIVE

2

SKYLINE,
5203

LEESBURG

PIKE

MAR •

VIRGINIA

o

|98•

22041

Civil

Proceeding

Penalty

HEALTH

AND

Docket

(MSHA),

ADMINISTRATION

24-01431-05001

No.

Bosal

Vo

80-19-M

WEST

No.

A.O.

Petitioner

Claim

1

No.

F

MINERAL

INDUSTRIAL

CYPRUS

COMMISSION

JUDGES

LAW
FLOOR

LABOR,

OF

SAFETY

MINE

REVIEW

lOth

CHURCH,

FALLS

SECRETARY

HEALTH

AND

CORP.,

Respondent

AND

DECISION

This
the

is

civil

a

Health
one

pursuant
1977,

of

Act

for

alleged

filed

order

issued

concerning

the

review

contesting

the

issuance

withdrawal

issued

by

Circuit
for

its

matter

validity
I
1981,

should

not

be

scheduled

copy

of

its

a

1981.

1981

February

13,

asserted

right
regard
parties

assessment,

to
to

whereby
Circuit

that

had
and

no

the

a

107(a)

imminent

to

order

on

review

filed

with

the

February

12,

1981

also

refund

settlement
proposed
settlement
proposed
with
I
disagreed
alia,
a

based

on

favorable

any

and

motion

pending
stipulation

limited
they
respondent

the

right

was

inappropriately

jurisdiction
proposed

over

the

to

mine
amount

settlement

676

a

order

issued

an

issue.

is

as

respondent

for
On

to

settlement

or

The

by

decision

a

follows:

4,

March

approve

cited

in

a

respondent's

to

refund

Circuit

9th

agreement.

outcome

9th

penalty
by

submitted

Circuit.

the

amended

litigation

in

on

I

by

9th

1981

i,
and

civil

for

the

Commission

complied

on

inter

1980,

January
order,

parties

to

of

3,

this

cause

hearing.

order

the

danger

why
Respondent

show

to

order

petition

because

an

final

Sssued

for

approve
this

a

withdrawal

order

prejudice,

the

filed

§

an

The

motion

without

rejected,

issued

the

Circuit

9th

respondent

the

danger
September

issued

the

by
by

subsequently

was

decision

imminent

order

By

the

21,

filed

underlying
of

of

contest

the
case.

Commission

stipuiaLion

Commission

this

a

of

of

in

pending

notice

The

the

and

agreement,
the
9th

a

review.

4.

the

May
of

1980,

proceeding

this

but

answer

27,

contest

Februarv

with

timely

a

the

submitting
on

30

remanded

upholding
January

the

violation

Respondent
stayed

initiated
against
petitioner
by the
proceeding
of
a
for
assessment
of
a
proposal
filing
and
Mine
Federal
of
the
Safety
section
to
ll0(a)
assessment
civil
a
U.S.C.
penalty
seeking
820(a),
C.F.R.
30
§ 57.3-22.
standard
of
safety
mandatory

penalty

through

respondent
penalty

civil

SETTLEMENT

APPROVING

ORDER

that

order,

the
initial

1981,

Order

No.

In

arguments
section

ll0(i)

operates

a

company

are

Payment

of

noncoal

mine

These

proposed

in

business.

facts

for

of

$

that

order

equipment

and

supplies

complete

control

over

stipulated

that

respondent

at

the

in

the
he

was

ability

stipulated
respondent.
the

performed
furnished

all

the

and
work,
working.

that

he

man

which

of

part

contractor

perform

to

area

year.

prior

state

the

on

per

respondent's

the

parties

this

160

are

in

controlling

the

at

mine

impair

not

that

needed

worked
the

independent

an

the

found

have

negligence

issued,

was

submitted

factors

hours

of

have

parties
statutory

total

penalty,

degree

500

six

worked

will

penalty

the

the

the
hours

reduced

a

indicate

which

and

the

the

support
which
lessen

$I,000
the
the

concerning
The
parties

Act.

and

2,585

In

Settlement

settlement

proposed

the

of

continue

facts

the

information

and

Assessment

57.3-22

of

support

Standard

CFR

8/3/78

342065

to

30

Date

work
manpower,

exercised

Conclusion
careful

After

information

and

of

interest.

and

record

in

conclude

I

settlement,

review

GRANTED

and

find

and

Accordingly,

pursuant

settlement

the

consideration

of
of

support

motion
reasonable

that

it

is

to

29

C.F.R.

pleadings,

the

the

to

arguments
the
proposed

approve

and

in

the

2700.30,

public

the
motion

is

APPROVED.

is

Order

Respondent
amount

listed

thirty

(30)

of

IS

ORDERED

above
of

days
the

by

payment

that

respondent

that

the

9th

petitioner

satisfaction

the

date

petitioner,
prevails

Circuit
will

to

in

of

this

the

determines

refund

the

civil

order

in

decisionand

is
proceeding
issue
of
jurisdiction

that

$500

in

penalty
the

of

this
on

a

pay

respondent

penalty

the

settlement
within

question,
and
order,

dismissed.
in

or

In

the

the

event

inappropriately

was

receipt

upon

event

cited,

respondent.

to

17d•ni•
v/•e•
Judge
•'

t rat

i

Law

Distribution:
Katherine

Vigil,

1585

Scott
CA

Federal

H.

90017

Esq.,

Bldg.,
Esq.,
(Certified

Dunham,

U.S.

1961

Department
Stout

O'Melveny

St.,
&

of

Myers,

Mail)

G77

Office

of

CO

80294

(Certified

Solicitor,
Mail)

W.

Sixth

St.,

Los

Angeles,

Labor,

Denver,
611

the

MINE

FEDERAL

OFFICE

HEALTH

AND

SAFETY
OF

ADMINISTRATIVELAW

2

SKYLINE,
5203

FALLS

10th

FLOOR

LEESBURG

PIKE

VIRGINIA

CHURCH,

COAL

COMPANY,

COMMISSION

JUDGES

22041

188!

2 o

CONSOLIDATION

REVIEW

:

Notice

of

:

Docket

No.

Contest

Contestant
v.

SECRETARY

LABOR,

OF

HINE

HEALTH

AND

SAFETY

Respondent
LABOR,

OF

MINE

80-160-R

:

Citation

No.

633821;

:

November

26,

1979

:

Shoemaker

:

Civil

Penalty

:

Docket

No.

:

A/O

:

Shoemaker

(MSHA),

ADMINISTRATION

SECRETARY

WEVA

(MSHA)

ADMINISTRATION

Proceeding

HEALTH

AND

SAFETY

Mine

,

Petitioner

WEVA

80-379

46-01436-03083

No.

Vo

CONSOLIDATION

Mine

CO•qY,

COAL

Respondent
DECISION

David

Appearances:

Health

Office

Esq.,

Philadelphia,
Administration;
S.
Cusano,

Ronald
&

Street,

E.

Labor,

of

Esq.,

Pittsburgh,

Hardesty,

of

Solicitor,

the

Pennsylvania,

for

Schmidt,
Rose,
Pennsylvania,

for

U.S.

the

Mine

Department

Hasley,

Dixon,

and

Safety
Whyte

Coal

Consolidation

Company.

December

On
of

contest

eral

issued

75.301.

lation
the

Safety
Mine

Consolidation

Coal

80-160-R

pursuant

W-EVA

No.

and

Health

Act)

to

Act
contest

1977,

of

Citation

30
No.

Company
to

U.S.C.
633821.

filed
notice
a
(Consol)
Fedthe
of
105(d)
III
801
et
(Supp.
seq.

section

§

The

citation

was

1977

of
104(a)
standard
of
violation
Consol
for
an
mandatory
safety
alleged
the
that
additional
the
contains
The
citation
allegation
and
could
of
such
nature
substantially
was
as
significantly
Consol's
health
hazard.
of
mine
or
and
effect
a
cause
safety
on

citing

to

(1977

1979,

26,
Docket

in

Mine

1979)

§

Background

Procedural

I.

Cook

Judge

Before:

November

26,

1979,

pursuant

to

section

678

the

Mine

30

Act
C.F.R.

cited

contribute
notice

vio-

(i)

inter
alleged,
alia,
constituted
which
tion
or
practice
and
§ 75.301;
(2) that
30
C.F.R.
could
which
mine
significantly
health
of
mine
or
effect
a
safety

of

contest

An

answer

or

of

the

and

of

contest.

of

the

by

an

in

Mine

Safety

its

answer,

it

all

other

MSHA

on

February

23,

1980,

MSHA

pursuant

provisions

to

the

and

cause

filed

pursuant
of

stan-

mandatory
notice

the

in

the

pending
continuance

requested

section

to
a

contained

continuance

a

for

proposal

of

1977

the

filing
granted

was

Mine

Consol's

633821.

•VA

Docket
No.
in
penalty
violations
Act
alleging
for
The
proposal

a

Regulations.

Federal

No.

issued
violation

allegations
The

a

of

Code

a

(MSHA)
issuance

the

admitted

1980.

5,

Citation

encompasses
1980.

the

Administration

(i)

MSHA

that

case.

ll0(a)

section

of

the

to

Health

and

requested

penalty

issued

contribute

properly

was

denied

of

penalty
9,
July

existed

(3)
Additionally,

80-379
two

safety

practices

stated

civil

June

On

mandatory

or

(2)

associated
order

of

Act;

and

occurred;

dard

violation

substantially

In

that

stated

1977

condi-

a

hazard.

the

by

cite

to

conditions

Mine

the

of

and

failed

citation

the

standard

a
no

1980.

7,

January

citation

104(a)

filed

was

around

on

that

filed

was

answer

a

on

at
Pennsylvania,
Washington,
addressing
proceeding
and
both
of
were
633821.
i/
Citation
No.
present
parties
for
the
reserved
M-3
Exhibit
No.
was
filing
by
posthearing
participated.
vioof
Consol's
forth
MSHA of
a
history
previous
setting
computer
printout
been
have
for
assessments
which
•ne
Shoemaker
during
at
the
paid
lations
of
the
November
the
24 months
Following
presentation
26, 1979.
preceding
and
briefs
of
the
for
set
schedule
was
the
a
filing
posthearing
evidence,
the
of
law.
conclusions
and
of
fact
briefing
However,
findings
proposed

The

which

hearing

schedule

Shoemaker

for

The
this

No.
in

which

assessments

of

The

printout

computer
previous

been

have

parties

*

the

for

proposal
Citation

No.
was

No.

*

*

stipulate

paid,

following

filed
penalty
November
633657,
the

WEVA

80-158-R.

of

portion

19,

All

30

the

notice

relating
granting

matters

by

No.

1979,
of

matter

subject

the

the

Docket

in

a

also

for

that,

relevant

of
on
22, 1980,
disposed
July
the
vacation
two
cases
in
resulting
for
insofar
of
the
a
proposal
penalty
order
affirmed
was
by an
disposition
were

a

history

1979.

18,

request.

filed

Petitioner

Consol's

proceeding,

633657
Docket

MSHA's

at

forth

in

consolidated

a

Docket

in

violations

No.

the

at

November

beginning
stipulation

was

19,

filed

in

therewith:

conjunction

The
i/
passed

revised

November

ending

1980,

on
22,
July
in
presented
Representatives

1980,

setting
Mine

and

1977,

21,

August

On

was

subsequently

was

80-379

WEVA

held

was

evidence

time

the

as

issued

it

No.

on

§

C.F.R.

of

proceeding

contest

No.

various

to

September

motions

and

633657
such

18,

enc•n-

Citation

75.303.

Citation

of

related

also

80-379

•VA

to

Citation

of

of

purposes
attached

the

citation.
1980.

633657
in

the

dismissal
This

printout,

computer

AS45904,

ID:

program

reciept

[Consol's]
history
the
mine
period
during
[MSHA] offers
18, 1979.
Exhibit
M-3.
as
[Consol]
of
the
in
[sic]
printout

purpose

set

forth

Exhibit

•>3

was

of

to

pertaining
Shoemaker
November
evidence

that

is

portion

violations

19,

November
the

attached

has

no

evidence

at

the

1977

to
in

printout
to
objection
for

the

limited

above.
received

evidence

in

by

order

an

issued

23,

September

on

1980.
and

Consol

29,

September

filed
briefs
posthearing
Consol
filed
respectively.

MSHA

1980,

on
a

and
September
26, 1980,
brief
October
on
reply

i0,

1980.

Violations

II.

Citation

Docket

in

Charged

No.

and

Witnesses

MSHA

called

its

Exhibits

i.

MSHA

75.301,

is

a

and

a

copy

M-2

is

methane

and

mitted

for

revision

vious

violations

a

is

a

at

2.

Consol

n.

I,

May

computer

19,
introduced

Phares,

for

inspector

the

evidence:

November

26,

1979,

30

C.F.R.

Mine's
effect

in

approved
November

on

ventilation

26,

1979,

system
and

sub-

1980.

and

forth

setting

printout

Shoemaker

the

Coffield.

thereof.

Shoemaker

9,

1977,

regional

in

633821,

No.

plan

the

exhibits

termination

the

Charles

inspector

Division.

Eastern

Citation

control

the

Kit

following

the

of

copy

on

November

beginning

of
of

dust

mine

Consol's

the

copy

Federal

witness

of

introduced

M-1

M-3

witness

its

as

Operations

B.

See

2/

75.303
75.301

Exhibits

as

called

Consol
Moundsville

2/

Standard

C.F.R.

Witnesses

A.

and

30

11/19/79
11/26/79

633657

§

80-379

Date

No.

633821

III.

WEVA

Mine

for

which

Consol's
assessments

ending

November

18,

following

exhibits

in

supra.

680

1979.

evidence:

history
have

of

been

pre-

paid,

Form

7000-4,

IV.

Issues

0-I

is

a

map

0-2

is

a

copy

Inspector

pertaining

to

}•i.

following

issues

stitutes

2.

If

violation

(I)

for

(I)

history

size

of

MSHA

of

notice

the

of

and

of

civil

that

a

that

penalty

penalty
negligent;

in

1977

the

Consol

is

per

large

a

and

4.

year

Consoi
acted

B.

Federal

Occurrence

mine

Shoemaker

jurisdiction

business;
attempting

in
in

above-captioned

the

in

the

(Tr.

size

the

of

the

Mine

Shoemaker

is

6-7).
and

operator,

size

and

commerce,

(Tr.

Act

the

of

the

Consol

rated

set

uj

Mine

rated

Mine

Shoemaker

large
•ine
of
tong
44,855,465
tons
at
1,791,721

Shoemaker
is

is

at

is

a

ii).
the

abated
in

has

Judge

interstate

}•ne

Specifically,
year,

the

to

Fact

Law

operates

under

be

should

considered:

be

5-7).

Consol

3.

of

Administrative

(Tr.

2.

occur,
found
is

violation

factors

six

penalty

Regulations
if

civil

such
contrib-

hazard.

Federal

penalty

a

constitutes
whether

substantially

above-captioned

amount

law

then

violation.

the

Findings

The

it

the

633821

health

of

Code
as

the

determining

the

in

the

assessed

be

violation,

a

1.

coal

of

No.

§ 75.301,
and

con-

75.301.

requires
the
of
(2) appropriateness
violations;
previous
the
was
whether
(3)
operator
business;
operator's
continue
to
the
on
of
the
ability
operator's
penalty
the
and
of
the
(6)
operator's
good faith
violation;

proceedings

per

involved

violation

In

Stipulations

coal

are

a

should

A.

6-7).

issues

did

amount

Opinion

(Tr.

mine

a

Citation

633821

No.

§

C.F.R.

of

(4) effect
(5) gravity
abatement
rapid

covered

of

in
C.F.R.

significantly
or
safety

could

as

effect

basic

occurred?

assessed

safety

30

30

standard

Citation

in

standard

cited

practice

nature

and

cause

Two

have

Consol's

such

cited

practice
safety

or

or

mandatory

proceeding:
and
(2) what

V.

condition

of

was

the

to

B.

and

statement,"

above-captioned

the

in

Mine.

Shoemaker

the

"inspector's

presented

mandatory

of

the

of

violation

of

of

section

Face

Coffield's

are

condition

violation

a

ute

the

•lether

i.

to

North

proceeding:

contest

a

5

the

of

The

A.

of

faith

good
of

violation
in

doing

so

time

the

inspector

5-6).

(Tr.

Violation

Charles

inspector
Mine

the

within

during

the

issued

Coffield
course

681

of

his

Citation
November

No.

26,

633821

1979,

at

inspection

(Tr.

15-16).

30

The

minute

(cfm)

entries

of

citation

was

the

C.F.R.

ing

the

last

§

Face

a

The

of

requires

in

briefs

filed

of

cfm

4,600

the

the

methods

used

The

second

question

constituted

stated,

resolution

The

of

accuracy
tions

the

violation

of

the

determine
crosscut

between

left

side

section.

An

appears

upon

an

following:
ing.
an

an

An

An

quantity
Consol's
the

upon

he

had

Brief,
on

had

or

18-19;

pp.

direct

approved,
the

(3)

best

of

that

he

of

multiplied
slightly

the

inspector

he

the

time

and

2

No.

an

chart

the

Yes,

Q.

Did
on

use

width

air

quantity

and

the

it

your

equipped

the

you

use

date

take

correction

question?

obtain

the

this

height

read-

air

an

cfm

reading

state

for

reading
of

the

into
cross-

obtain

to

he

testified
used

an

velocity
(2)
reading;
that,
of
38
feet
reading
minute;
per
and
that
height
(4)
measurement;
obtained
air
an
quantity
figure

air

an
a
a

and

Consol's

position
chart

Coffield

that
a

whether

Posthearing

Coffield
that

solely

rests
certain

(Consol's

Inspector

correction

is
on

you

as

based

used

for

taking

to

whether

upon

the

cross-examination

to

chart?

correction

chart

682

Face

measure-

computation,

not

(I)

anemometer

the

North

together

chart

Inspector

in

computathe
reaching

requires

sir.

the

the

to

his

Five

4,600

8).

p.

with

as

involved.

velocity

to
convert

case-in-chief:

from

measure-

was

air

multiplied

correction

Brief,

the

inspector,

the

the

to

in

the

to

the

in

air
of

used

used

resolution

case:

is

the

9,000

volume

anemometer,

could

he
obtained
recollection,
had
taken
width
and
a
already
the
three
figures
together
less
than
cfm
(Tr.
4,600
16).

Coffield,

and

challenge

of

is

of

his

readings,

reach-

air

cfm.

accuracy
Coffield

Reply

elicited

standard

location

cfm

make

are

of

anemometer

not

3

No.

The

measurement,

inspector

entries

an

then

air

the

accurate

figures
terms

to

A.

3

The

anemometer

Mr.

No.

with

is

three

Inspector

did

by
4,600

anemometer

calibrated

or

per

and

relates

Consol's

upon

used

to

taken

MSHA's

Q.

and

that

record

that

turns

the

the

at

approXimately

during

did

readings

law

examination

following
testimony
MSHA's
rebuttal
during

the

the

used

Consol's

2

be

by
volume

question

in

used

not

obtained

air

was

to

for

the

measurement.

that

questions
question

whether

calibrated

challenge
assertion

first

to

measurement

the

shall

inspector

reading

and

air

No.

rooms

obtain

first

measurement

of

the

to

anemometer

velocity

determined,

are

air

The
measurement

of

correction

air

two

present

volume

the

the

velocity
approved,

anemometer

accurate

cut

from
air

developing

occurred.

velocity
that
only

air

to

It

parties

air

a

set

of

standard

safety
feet

61.)

Tr.

relates

open

based

set

by

last

ment.

or

the

by

or

pair

violation

a

"[t]he

pair

cubic

(047)
(Exh.
M-l).
of
mandatory
safety
minimum
of
quantity
of
entries
developing

portion

any

mandatory

4,600

between

section

that

in

(See

whether

accuracy

any

side

that

of

crosscut

open

left

violation

minute."

a

last

which
crosscut

crosscut

determining

ment.

North

75.301

feet

to

the

open

open

cubic

reaching
Five

last

violation
a
alleges
only
approximately

that

in

alleges

30

and

citation

§ 75.301

C.F.R.

the

take

to

A.

The

correction

Q.

The

answer

be

would

thinlc

I

chart,

or

yes

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think,

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no,

that

to

question.
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don't

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Q.

You

looked

at

A.

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I

can

at

it

answer

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yes,

yes

or

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at

the

it?

96-97).

(Tr.

that

find

I

puting

of

use

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chart

evidence

the

made

inspector

to

I

say
chart.

correction

if

know

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the

of

accuracy

fact
made

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finding

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of

use

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chart

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in

com-

evidence

testified

Phares

Mr.

figure.

the

at

independent

sufficient

contains

4,600

the

a

support
The

that

not

also

record

The

velocity.

air

corroborate

than

probable

to

chart.

correction

the

more

sufficient

is

to
of
series
stating
a
prior
computations
performed
2
between
No.
crosscut
the
last
cfm
reaching
open
4,600
the
date
of
the
on
Phares'
inspecMr.
3 entries
and
73).
No.
(Tr.
position
of
the
with
included
have
to
accuracy
does
not
disagreement
tion
any
appear
conwas
that
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It
cfm
disagreement
the
reading.
appears
4,600
inspector's
with
measurement
was
the
air
obtained,
location
where
the
fined
to
velocity
in
taken
been
should
have
the
that
time
the
at
Phares
reading
Mr.
contending
Phares
Mr.
and
2
entries
i
69-70).
No.
between
(Tr.
No.
crosscut
last
the
open
last
the
taken
in
air
based
an
open
on
made
reading
velocity
computations
cfm
and
obtained
(Tr.
a
2 entries
i and
figure
No.
26,000
between
No.
crosscut
that

Inspector

that

there

Coffield

only

was

69-70).
not

consider

the

ing

to

be

unusual

4,600

the

Considering

cfm

of

(Tr.

air

was

his

between

difference

75).
reaching

I

last

find

that

read-

Coffield's

approximately

only

crosscut

open

did

Phares

Mr.

system,
Inspector

and

reading

Accordingly,
the

ventilation

the

of

arrangement

and

2

between

No.

centers

around

3

No.

entries.

Consol's
tube

test

challenge
by
performed

Consol

challenges

the

lishes

that

the

results

shows

clearly

informed

Phares

i lr.

figure

velocity
it

is

to

resolve

derived
to

unnecessary

the

issues

various

the

tube

smoke

between

crosscut

that

the

that

he

from
address

presented

did

test

approximately

only

that
open

measurement

No.

2

not

form

4,600

efm

and

No.

3

basis

of

air

was
performed
cfm
using
4,600
figure
93-94).
the
anemometer
(Tr.
reading
tube
the
smoke
to
Consol's
challenge

smoke

had

tube

obtained

herein.

test
a

for
per

the
minute

The

entries.
after

19).

p.

estab-

evidence
a

smoke

the

Brief,

(Consol's
Posthearing
the
However,
grounds.

Coffield

on

of

last

the

reaching

dence

test

of

method

Inspector

determination

inspector's
was

tile

to

the

the

evi-

inspector
air

Accordingly,
test

in

order

The

second

of

30

The

i0

left

side

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of
1

No.

of

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be

mined

the

use

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O-i,

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2

and
open

been

installed

in

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installed

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first

crosscut

the

last

section

return

on

the

No.

(Exh.

crosscut

began

the

in

Check
almost

was

been

31-33).

4/

The

five
in

mining

89).

•/

Inspector
relates

testified

edges,
further
with

that
but

that

testified

approximately

1

No.

one

crosscut

Under
Nos.

3,

entry

and

outby

the

and

5

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at

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last

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and

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torn

of

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of
part
2 entry
located

No.

the

return

section

and

on

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of
No.

basically
check

right

Phares

Mr.

curtain

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up

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demonstrated

air

check

curtains.

was

loose

in

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2

down

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684

Five

other

North

considerable

two

and

The

section.

side

a

sound
almost

was

the

course

but

it

No.

2
of

(Tr.

29,

miner

was

Face

section

disagreement

Inspector
few

in
open

69).

in

was

2

were

last

sound

entries

outby

side

with

Phares,
(Tr.

between

crosscut

few
a
around
tile
places
edges,
(Tr.
Check
curtain
29, 33-34).
two-thirds
down;
specifically,
approximately
one-third
of
it
remained
approximately
up

was

and

two-thirds

crosscut

open

2)

No.

midway

left

entries,

cross-

last

the

curtain

second
the

setup,

the
had

The

entries.

(check
approximately

and
4

No.

curtain

this

1

2

as

up

outby
i)

crosscut
curtain

and

crosscut

open

set

between

was

was

of

system

a

was

fan

check

to

through

crosscuts

second

point

a

section

the

(check

check

with

basically

that

the

located

at

0-i).

the
in

No.

was

entry

last

No.

condition

it

of

exhaust

Face

the

and

intersected

Coffield
to

None
were

accomplished

Tr.
An
69).
O-i,
auxiliary
the
where
it
outby
point
Tr.
79).
to
Mr.
According

the

68).

section

Face

No.

do•

of

the
1

2

the

entry

North
one

(Tr.
as

torn

advance

to

(Tr.

feet

(Tr.

entry

was

of

No.

1

On
the

on

No.

remainder

and

up

shift

the

completely

had

3/

1

curtain

basically

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it

0-i,
No.

58-59).

the

was

curtain

additional

An
No.

The

just

entry

side
installed

including

No.

(Exh.

(Exh.

air

1

0-I,

(Tr.
extracted,

regulators

left

between

the

air.

section

(Exh.
ventilation

in

North

curtains,

miner

of

day
120

to

Ventilation

check

A

ventilated

intake

on

the

Five

been

and

0-i).

outby

being

was

entry,

to

0-i).
in

crosscut

open

had

curtain

(Exh.

crosscut

open
had

the

on

crosscut

a

check

_3/

check

up

(Exh.

containing

cut

84).

being

on

I00

of

two

right

87).

entries,

crosscut

located

the

(Tr.

stoppings

3

No.

was

side

violation

type

ventilation
was

a

to

The

of

plan

was

left

coal

mining
approximately
left

system

Permanent

last

of
the

79,

Tr.

ventilation

follows:

section,

stoppings,

permanent

where

The

shift

the

face."

system

face

Face

distance
on

"working

split

a

0-I).

entries

during

a

Mine
from

a

following:

the

sequence

volume

air

an

constituted

Shoemaker

the
in

as

North

Exh.
a

of

working

Five
on

entry

(Exh.

No.

the

A

other

fans

described

whether

is

involved

establishes

contained

was

the

Point

record

section

entry

parties

location

numbered

1979,

use

26,

68-69,

Face

entries

Each

in

system
November

The

North
of

the

by
the

at

75.301.

Five

68-69).

Tr.

cfm

4,600
§

C.F.R.

consisting

raised

question

of

measurement

Coffield

around
the
places
He
(Tr.
29, 33-34).
torn
completely
down,

remaining

one-third

of

it

noted

As

last
of

above,

crosscut

open

cfm.

4,600
crosscut

open

points

last

the

in

of

measurement

a

line

the

separating

tending

that

the

entries

significance

Consol

air

had

passed

the

No.

i

Consol's

sions

is

they
mined
the

1969

Coal

the

last

open

ing

9,000

cfm.

reach

tile

part,

the

last

pair

any

of

to

Act

to

be

provi-

the

deter-

of

reach-

air

be

shall

entries

of

must

air

entry.

of

air

last

the

303(b)

section

enacting
quantity

quantity

place

a

Congress

developing

in

the
of

was

quantity

the
measured

until

forth

set

developing
each

face.

face

upon

which

air

this

measure

shall

air

the

regulations

intersects

it

begin

case

relies

minimum

that

not

the

of

set

or

determined

of

is

air

standpoints.

In

the

courses.

working

it

crosscut.

up

2

No.

air

active

of

quantity
that

air

intake

this

of

set

and

i

return

if

Coal

1969

open

theplace

to

only

con-

open

No.

different

two

section

the

where

volume

(continued)
(Tr.
29, 31-33).
up
and
he
came
through
72).
(Tr.
Similarly,
recall
problem
any
83-84).
fn.

in

as

"the

that

maintained

Congress

regulation

The

from

decreed

crosscut

open

progress.

measure

crosscut

Therefore,
last

in

last

return

did

of

line

the

ventilation

last

in

methane

desig-

disagrees,

that

course

face,

This

Congress

Act,

becomes
the

air

sustainable

the

and

air

over

return

of

to

intake

working

actually

be

reach

to

passed

as

the

contends

and

has
the

was

can

adequate

required

was

the

administrators

the

by

the

between

intake

§ 75.301-3(a).

considered

under

pillars

which

active

not

position

because,
of

and

•2),

the

in

proper

entries.

system
as

taken

separating
at

that

position

C.F.R.

promulgated

line

3

No.

Consol

be

to

entries

it

last

the

work

its

30

of

after

where

entry

First,

and

2

the

in

measurements
No.

courses.

determination,

argues

over

air

required

2

No.

this

only

air

return

Accordingly,

and

making

in

becomes

his

between

return

were

the
26, 1979,
of
line
pillars
the
that
point

the

was

1

No.

maintains

Consol

and

measurements

November

on

use

open

intake

the

between

crosscut

took

Coffield
crosscut

ventilation
the
of
approved
provisions
1979
effect
November
(Exh.
on
in
26,
plan
and
3
entries
2
No.
between
No.
of
pillars

pillars

in

measurement

a

air

the

to

control

dust

nating

of

of

obtained

and

the

in

air

obtained

volume

the

entries

2

No.

Inspector
last

the

in

i.e.,

location,
MSHA

that

contends

MSHA

in

and

of

volume

and

cfm.

26,000

and

i

No.

entries

3

No.

measured

promptly

Phares

Mr.

between

and

2

No.

the

measured

Coffield

Inspector
between

states,
crosscut

open

4

I

that

to

as

he

did

recall

problems

any

Phares

the

with

testimony
the

curtain
was

either

at

up.

curtain

i

No.

did

point

check

curtain

or

two

check

point

No.

2

his

Similarly,
is

not

an

No.

is

testimony
affirmative

did

2

(Tr.

he

not

down

he

not

affirmatively

Phares

Mr.

down

being

that

because

curtains.

Coffield

Inspector
it
being

that

recall

not

another

this

on

point

one

he

that

testified

of

check
curtain

at

and

2,
curtain

check

condition

recall

problem
existed.

Mr.

with

the

not
that

statement

No.

inspector's

the

accept

testified

testified

Phares

Mr.

curtain

testimony

an

affirmative

that

he

statement

did

not
that

no

through

the

of

split."

each

air

line

of

pillars

30

C.F.R.

Consol

argues

that

becomes

return

air

working

face

particular
Consol,
will

be

such
where

and

course

to

separate

ventilation

a

forth

set

Consol

under

intake

Therefore,

as

between

last

No.

2

for

Consol

Ue

know

and

the
entries

less

possibly

the

less
of

last

this

However,

9,000

a

coal

must

4

No.

Consol

shows

itself

between

the

intake

determine,

the

No.

2

be

9,000

and

intake

and

3

No.
cfm

return

entries.

the

in

Consol

well

9,000
developing

cfm

crosscut

the

quantity
and

of

As

reach

air

entry.

know

between

that

the

in

air

the

founded.
of

crosscut

open

also

We

entries

No.

4

No.

3

the
and

the

witness

last

open

3

No.

entries

88-89).

results
in

not

is

last

cfm.

(Tr.

cfm

the

in

4,600

crosscut

in

5,

No.

would

performed

The

foundation

crosscut

wherein

situation

a

and

4,

No.

that

maintain

the

is

further

in

provisions
No.

2

which
the

as

apply
use

of

4,

and

this

i

the

air

could

entries

was

be

not

a

violation

of

the

statute

this
2

entry

air

open

extracting

mining

cycle."

30

would
The

course.

would

situation

intake

a

location

indicate
air.

686

in

Consol

only

§

75.2(g)(i).

the

last

valid

a

have

has

portions
there

open

place
shown

not

authorized

that

"any place
in
deposit

as

C.F.R.

entries

these

natural

its

constitued

because

which

of

defined

is

from

plan

for

face"

where

crosscut

Each

coal

foundation

intake

intent

last

entries.

No.

without

an

5

that
argument
2 entries

and

basic

the

"working

the

Consol's

the

reaching
NO.

temn

during

No.

to
No.

be

of

work

ventilation

the

entry

No.

violate

not

The

for

between

measurement

3,

which

in

5/

would

would

face.

mine
is

for

the

each

air

position

No.

working

a

earth

plan

0-I

affirmatively

not

position
that
requires

opinion

and

4,600

air

the

the

the

of

condition
of

cfm

intersects

contains
in

Exhibit

law.

since
it

and

to

up

faces.

between

intersects

only

5

No.

open
and
cfm

9,000

than

it

his

Consol's

Therefore,
reaching

in

permanent

courses

that

by the
stoppings

approved

was

that

separation

separation

question

was

than

at

stoppings.

did

it

Consol's

why

quantity

the

intake

occurs

it

5/

in

that

between

where

done.

the

the

as

reading

air

where

3

stated

crosscut

the

statute

that

No.

place

being

air

outby

between

entries.

crosscut

open

courses

that

that

return

permanent

that

is

reason

the

the

provision

and

the

course,

3

No.

another

is

above,

the

was

of

and

2

No.

There

claim

now

minimum,

a

air

course.

plan,

This,

return

such

plan

specific

a

air

ventilation

own

courses.

stated

return

hardly

can

its

air

the

and

is

place
is
actually

the
third
crosscut
including
connecting
the
where
Consol
installed
its
places
then
that
line
of
designated
stoppings
air

intake

varies

mining

submitted

maintained

the

measurement

that

that

it

of

place

and

however,
wherein

Government

separates

that

§ 75.301-3(a).

of
is

for
any
of

any

part

the

ventilation

no

foundation

•thane

coal
though
34-37,
(Tr.

even

time

maintain

safe

conditions

requires

that

such

The
OSHD

of

is

through

must

be

of

separating

faces
up

at

a

needed

is

to

Congress

why

is

it

where

crosscut

open

in

each

to

the

81

78,

case,

C.F.R.

§

75.301-3

intake

and

return

the

in

air

of

courses,

air

becomes

the

definition

faces.
No.

4,

No.

5

working

that

know

We

5,

No.

which

made,

intake
view

working

were

entry
faces

indicated

and
be

to

in

Board

Interior

is

which

at
point
above,

CCH

1973-1974

173,

I.D.

the

the

3

at

cycle.

This

measurement

the

intake

the
return

(Tr.

34-39,
particular

that

then
the

auxiliary

No.

4

to

intake

was

left

in

the

would

face

be
not

in

the

the

methane

carrying
mining
mining

and

3,

No.

cycle.

Intake

entry.

shown

until

it

reached

proceeded

to

the

left

30

C.F.R.

coming

up

know

0-i.

We

last

open

crosscut

of

each

entry

Exhibit

moment

would

by

crosscut

the

on

face

air

open

also

was

that

the

that

at
return

last

the
air

as

away
That

face

from

done

being

was

through

section

entries

least
it

reached

entry

or

the
i

No.

2

at
as

5

it

of

No.

air
air

return

was

the

and

3

No.

No.

whether

working
fan

and

since

91-92)

drawn

be

in

air
air

became

through

the
that

that

and

that

the

last

crosscut.

open

of
provisions
the
in
be
can
applied
changing
continuously
the

Consequently,
air

measurement

since

the

No

measurements,
the

air

75.301

Accordingly,

it

by

possibly

He

that

effective

The

most

logical

and

for

the

terms

"intake

air

in

Part

75

Title

finding

of

the

last

air

cfm

crosscut

open

violation

a

the

reaching

not

was

of

4,600

only

of

evidence

violation

of

the

evidence.

had

he

belt

tile

30

that

would

"return

air

of

the

methane

of

last

open

(Tr.

Code

be

to

has

on

and

.9

percent
found
been

has

in

35).
set

course,"
of

75.301

readings

percent,

methane

lines

method

§

C.F.R.

.8

of

testified
on

30

taken

readings

course,"
of

of

locations

to

as

in

clear

of

further

back

the

is

that

even

air"

a

obtained

percent.
quantities

developed

entry

air.

return

to

of

place

each

entries.

testified

7/
"return

cfm

preponderance

had

intake

the

to

as

between

crosscut

obtained

air

entries,

found

1.2

excessive

of

is
a

and

occasions

are

that

§ 75.301-3
open

from

clear

9,000
developing

that

last

arguments

of

Coffield

Inspector

different

3

No.

in
set

established

been

of
and

this

in

of

patently
quantity

is

it

2

No.

§

kinds

what

7/
measurement

C.F.R.

crosscut

6/

is

matter

the

between
30

volume

air

stated

area

as

the

30

to

air

it

cited

As

IBMA

quantity

cycle
given

mining

faces

that

In

83-84.

the
face",
was
proceeding

the

entries.

2

air

(Board)

pillars

those

last

IBIIA

78

•len

in

cited.

reference

air

intake

3

Company,
been

has

in

of

entries.

with

"working

No.

the

determined
air.

return

of

line

the

Coal

which

at

mining
reach

air

developing

these

location

the

entire

faces

that

of

air

Therefore,
the
of

Zeigler
(1974),
Appeals

17,615
Operations

par.
Mine

that

of

case

6/
•n

quantity

of

each

intersects

from

extracted

being

is

91-92).

working
one
only

the

of

all

from

released

is

Federal

forth
"intake

definitions

air,"

Regulations.

and

C.

The
the

low

The

parties

ment

of

Negligence

of

placement
reading

and

complied
and

system
of

the

plan
utilizing

cycle

portion
graph

of

the

mine

on

page

9

7

vary

cut

angles."

the

provisions

It

the

for

the

(Tr.

placement
(Tr.
79).

of

responsible
demonstrated

of

the

low

ordinary
Gravity

Inspector

Coffield

could

accumulate

reduced

ventilation
in

detected

Inspector
quantities

was

the

crosscut

tor

Coffield,

affect
methane

the

would

the

curtains

left

any

(Tr.

7

on

con-

9

page

him-

place

the

check

concluded

that

the

Phares
of

a

knew

principally
found

is

curtain
Mr.

Consol

conditions
it

that

Consol

that

between

No.

the

progressively

such

4

and

of

and

at

it

was

5

lower
No.

4

does

not

(Tr.

35).

4,600

cfm

dry
than

and

4

No.

(Tr.

velocity
and

4

lower

91-92).

688

the

and
air

and

lower

in

Inspec-

to

last

5

entries,

readings,

the

No.

of

entries,

air

No.

that

appear

entries

even

the

excessive

upon

less
3

No.

the
have

progressively
88).
According
in
the
readings

The

(Tr.

that

Coffield,

basically
that

was

entries,

methane.

accumulate

it

based

the

figure

quantities

time

between

of

could

testified

the

possible

result

a

Inspector

excessive

was

ventilation
No.

Phares

However,

section

crosscut

as

methane

of

that

35).

The

section

to

because

serious

was

the

Mr.
37).
According

(Tr.

the

violation
of

accumulation

citations

that
in

the

methane

54).

(Tr.

could

with

dust

to

the

of

one

side
An

lines

possible

or

and

paragraph

that

Accordingly,

that
the

belt

accumulation

comply

not

operator

cross-

Violation

on

3

be

of

of

No.

shown

and

of
testimony
responsibility

was

therefore

can

reading.
negligence.

present

between

crosscut

the

existence

testified

was

it

knew

air

issued

Phares

Mr.

Consol

testified

methane

of

mining)

did

by

However,

quantities
the

on

ventila-

methane

the

permit

Para-

face

retreat

and

afforded
to

and

curtains

37).

72).

Coffield

check

The

entries.

centers,

whether

34-35).
mine
explosion
methane
(Tr.

such

ventilation
that

a

crosscut

system

as

(Tr.

liberates

been

It

the

the

of

methane

prominently

know

the

known

and

and

the

i0

§ 75.301.

C.F.R.

down

for

of

far

not

have

advance

flexibility
so

was

entry

of

miners.

had

"section

the

ventilation

the
30

occurred

entry

placement

did

should

liberates

system

continuous

two

or

that

entries,

extend

of

foreman

mine

each

approved

not

that

section

states

of

one

violation

plan

2

indicates

D.

and
the

inspector
No.

section

the

the

does

typical

which

Furthermore,

The
the

in

entries

of

violation

in

8

that

plan

self

a

in

of

and

depict

number

appears

plan.

trol
of

or

the

in

the
check
curtains
was
for
responsible
(Tr.
inspector
25, 29, 71, 77-78,
89).
to
whether
as
the
disagreement
placethe
of
the
applicable
portions
approved
dust
control
The
on
plan.
drawings
ventilation
to
a
system
applicable

with

methane

(typical

system

of
the

by
substantial

curtains

mining

tion

condition

demonstrated
the

12

will

Operator

obtained

air

ventilation
page

the

open
would
more

In

the

of

view

and

Significant

E.

The

that

that
allegation
substantially

the

the

violation

serious.

was

Criterion

Substantial

contains

citation

found

is

it

foregoing,

the

violation

of

was

such

and
significantly
health
hazard.
Alabama
In
or
Corporation,
By-Products
safety
Board
the
1976-1977
CCH
OSHD
7 IB•IA
(1976),
21,298
574,
85, 94, 83 I.D.
par.
of
citabars
the
issuance
and
substantial
criterion
the
held
that
significant
of
risk
violations
of
no
"two
tions
in
posing
violations,
namely,
categories
violations
and
technical
that
is
to
at
violations,
all,
purely
say,
injury
chance
has
remote
of
which
a
or
a
source
speculative
injury
only
any
posing
violation
that
this
to
is
a
fruition."
A
to
of
proposition
corollary
coming
"without
to
and
substantial
standard
be
of
regard
a
significant
mandatory
may
from
the
hazard
the
result
of
to
the
or
seriousness
injury
likely
gravity
of
serious
need
find
risk
not
a
that
an
violation,
is,
inspector
by the
posed
94.
7 IBMA
alone
death."
at
let
harm,
bodily
nature

as

could

effect

of

a

and

late,
said

that

well-recognized

the

source

to

fruition.

nature

as

could

effect

of

a

Good

The

parties
Inspector

by
5).
(Tr.
attempting

Faith

stipulated

of

November

18,
30

1979,

is

found

that

summarized

ulated

parties
Mine
that

Consol

is

size

Operator's

stipulated
a
large

mine

Consol

is

of

inspector
to

accumu-

be

cannot

it

of

chance

violation

of

was

the

to

such
and

cause

good

demonstrated

the

within

violation

in

at

November

faith

in

good

the
19

time

doing

so

faith

in

Mine

Shoemaker

•, 1977,

of

Total

Assessments

Amount

and

for

ending

Paid

$180,851
$122

1

The

methane

methane,
speculative

the

the

acted

962

sections

the

of

the

follows:

as

75.301

of

for

technical

purely

a

by

contribute

violations
previous
beginning
paid,

been

Paid

Size

not

was

computed

Violations

Number

H.

or

that

abated

Consol

is

C.F.R.

Shoemaker

cause

Abatement

Rapid

Consol

Standard

All

the

to

hazard.

that

of

history

remote

found

is

and

Previous

have

assessments

a

substantially

that

Coffield

History

it

Attempting

in

Respondent's
which

explosive
had
only

injury

It

reading
the
potential
properties

liberation,

it
Accordingly,
abatement.
rapid

G.

volume

air

Accordingly,
and
significantly
health
or
safety

mine

F.

of

serious.

was

low

methane

the

coming

set

the

of

level

mine's

violation

the

above,
Considering

violation.
the

contribute

mine

noted

As

and

Business

Consol

that

(Tr.
rated

6-7).
at

and
that
the
large
operator,
the
parties
Specifically,
stipof
coal
tons
44,855,465
per
year,
is

a

and

,

the

size

(Tr.

the

of

Shoemaker

Mine

is

rated

1,791,721

at

of

tons

coal

per

year

Remain

in

ii).
Effect

I.

of

Civil

a

Penalty

the

on

Operator's

Ability

to

Business
evidence

No

will

penalty
Company,

presented

was

affect

establish

to

that

the

of

assessment

civil

a

Consol's

to
remain
in
business.
ability
In
Hall
Coal
i IB•
79
I.D.
175,
1971-1973
CCH OSHD
668,
the
15,380
par.
(1972),
Board
held
that
evidence
to
the
issue
to
relating
as
whether
civil
a
penalty
will
affect
the
operator's
to
remain
in
business
ability
is
within
the
operator's
in
a
rebuttable
control,
resulting
that
the
presumption
operator's
to
continue
in
business
will
ability
not
be
affected
assessment
of
a
by the
civil
find
I
that
penalty.
a
Therefore,
otherwise
assessed
penalty
properly
in
Docket
No.
WEVA
80-379
will
not
Consol's
to
impair
continue
in
ability

business.

Conclusions

VI.

i.
the

to

of

Law

Consolidation

Coal
of

provisions

the

and

Company

1977

its

Act

•ne

Shoemaker

Mine

have

been

times

relevant

to

these

all

at

subject

proceedings.

tion

2.

Under

the

over

the

subject

3.

Federal

sentative

of

Citation

No.

The

violation

§

75.301,

5.

The

violation

30

C.F.R.

§

75.301,

contribute

VII.

MSHA

Consol

and

findings

insofar
and

affirmed
whole

immaterial

in

or

to

part,
the

Fact

filed

effect

of

law

and

be

can

have

been

and

conclusions

they

contrary
decision

§

as

No.

of

a

duly

authorized
the

to

repreissuance

75.301.

633821,
alleged.

November

26,

November
633821,
significantly
mine
or
safety

forth

set

in

Conclusions

Part

V,

1979,

26,

1979,
substan-

and

health

hazard.

supra,

are

these

the

filed

have

to

considered
have

facts

Law

Consol

considered

rejected

are
to

in

of

briefs.

posthearing
they

such

in

and

a

C.F.R.

could

as

was

relevant

No.

Citation

these

herein.

of

as

30

,

to,

times

occurred

nature

cause

conclusions,
findings
this
decision,

that

in

conclusions

Findings

briefs,

extent

the

all

Citation
have

such

incorporated

proposed

Such

in

of
and

1979

to

of

the

to

All

26,

charged
was

Coffield
at

has
Judge
jurisdicproceedings.

Law

parties

Charles

in

found

the

Labor

charged
is

Administrative

and

of,

inspector
of
Secretary
November
633821,

4.

6.

the

Act,

mine

C.F.R.

reaffirmed

Mine
matter

the

30

tially

1977

on

and

cases.

690

fully,

and

been

expressly
grounds

the
law

or

reply

a

contained

because

brief.

proposed
the

to

except
or

that

they

impliedly
they
are,
are

of

Assessed

Penalty

Vlll.

consideration

Upon
of

findings
penalty

fact

of
and

Docket

in

Citation

the

entire

conclusions

No.

record

of
80-379

WEVA

law,
is

as

C.F.R.

Standard

11/26/79

633821

and

cases

that

warranted

30

Date

No.

these

in

find

I

the

the

foregoing
of

assessment

a

follows:

Penalty

75.301

$600

ORDER

Accordingly,
the
affirming
80-379
§

75.303

IS

80-160-R
30

1979,
IT
WEVA

Citation

hereby

FURTHER

IS

§

FURTHER

80-379

in

is,

hereby

C.F.R.

the

that

is,

75.301

and

be,
that
of

amount

the

determination
for

of

penalty

a

November

19,

September
Docket

in

1979,

of

contest

in

and

that

Citation

No.

hereby

is,

AFFIRmeD.

OENIED;

ORDERED

the

the

proposal
No.
633657,

30

1980,

18,

No.

WEVA

C.F.R.

REAFFI•4ED.

ORDERED

and

be,

that

ORDERED

to

and

be,

IS

of

relates

as

IT

IT

dismissal

notice

Respondent
$600 within

a

pay
the

civil

•tive

Law

WEVA

No.

November

633821,

penalty
days.

30

next

Docket

26,

Docket

in

No.

Judge

Distribution:
David

Street,

E.

Room
Labor,
Philadelphia,

Ronald

900

Administrator

Department
Administrator

Standard

Gateway
19104

PA

Cusano,

S.

Oliver

Esq.,

Building,
for

of

of
the
Solicitor,
3535
Building,
(Certified
Mail)

Office

Esq.,

14480,

Metal

Schmidt,

Rose,

Pittsburgh,
and

Nonmetal

Mine

Safety

PA

Dixon,
15222
Mine

U.S.

Market

Hasley,
(Certified
and

Safety

of

Department
Street,

Whyte
Mail)
Health,

&

Hardesty,

U.S.

Labor

for

Coal

and

Distribution

69.1

Health,

U.S.

Department

of

Labor

FEDERAL

MINE

SAFETY
OFFICE

AND

HEALTH

OF

ADMINISTRATIVE

2

SKYLINE,
5203

FALLS

REVIEW
LAW

lOth

FLOOR

LEESBURG

PIKE

CHURCH,

VIRGINIA

COMMISSION

JUDGES

22041

8 .& MAR !981

SECRETARY

OF

LABOR,

SAFETY

MINE

AND

(MSHA),

ADMINISTRATION

On

behalf

GENE

F

of

Complaint

Discharge

HEALTH
Docket

Nos.

LAKE

80-292-D

VINC

CD-80-10

of:

HAND,

Zeigler

ii

No.

Mine

Complainant
Ve

ZEIGLER

COAL

CO•ANY,

Respondent
DECISION

Frederick

Appearances:

Moncrief,

W.

of

Department

U.S.

Office

Esq.,
Labor,

Arlington,

of

the

Virginia,

Solicitor,,
for

Complainant;
D.

Michael

Miller,

McAlister

&

Woods,
lllinois,
Before:

Judge

Alexander,
Ebinger,
Fisher,
and
Halbert
J.
Columbus,
Ohio,
Coal
Des
Zeigler
Company,
Plaines,
Respondent.

Esq.,
for

James

A.

Laurenson

JURISDICTION

This

Esq.,

Lawrence,

AND

PROCEDURAL

of
Mine
and
by the
Secretary
Labor,
Safety
of
Gene
Hand
MSHA) on behalf
F.
alleging
that
F.
Hand
Gene
from
his
was
at
Coal
employment
Zeigler
Company
December
on
because
of
(hereinafter
activities
Zeigler)
21, 1979,
protected
under
section
of
the
Federal
Mine
and
Health
of
Act
i05(c)
Safety
1977,
§ 815(c)
30
U.S.C.
the
Hand
filed
Gene
with
(hereinafter
F.
Act).
a
complaint
MSHA concerning
his
On
its
discharge
May 19,
1980,
following
investigation,
filed
MSHA
an
for
of
reinstatement
Hand.
Gene
F.
That
application
temporary
was
Chief
Administrative
Law
James
A.
Broderick
application
granted
by
Judge
1980.
on
the
on
a
May 20,
Thereafter,
Zeigler
requested
hearing
application,
which
held
in
was
St.
on
June
before
subsequently
Louis,
9, 1980,
Missouri,
Chief
Broderick.
the
Chief
Broderick
held
Judge
on
Following
Judge
hearing,
June
that
of
the
order
reinstatement
should
continue
17, 1980,
in
temporary
force
until
further
notice
On
the
Federal
Mine
and
July
23, 1980,
Safety
Health

is

a

Administration

proceeding

commenced

HISTORY

(hereinafter
discharged

692

Health

brought
the

for

1326,

(S.D.

in

Louis,

F.

Hand,

on

behalf

of

Thornton,

B.

fied

denied

Zeigler:

of
and

the

Judge
Company

Coal

foregoing
proZeigler's

denied

502

Marshall,

v.

for

Court

the

Foreman

F.

MSHA•s finding

was

and

briefs

behalf

the

at

consideration

request

for

the

complaint

or

capricious."

that

arbitrary
proposed

for

motion

of

temporary

R.

for

a

the

contentions

relief

on

and

of

the

law.

of

conclusions

Complainant
protection

Whether

of

violated

Zeigler

Whether

Complainant
Complainant.

Hand,

F.

Gene

Hand,

F.

Gene

the

to

section

a

section

i05(c)

section

i05(c)

if

what

and,

so,

Section
part

i05(c)

of

No

person

the

of

the

is

Act

shall

"miner"

a

if

and,

Act;

so;

in

discharging

be

awarded

to

LAW

§

U.S.C.

815(c),

provides

in

pertinent

follows:

(i)
against
against

inate
tion

or

of

applicant

for

employment

because

such

applicant

for

employment

related

to

Act

safety
because

at
or

in

the

coal

miner,

or

filed

including

the

in

representative

a

of

exercise
of

other

miners

mine

of

miners

the
or

subject
or

under
complaint
the
notifying
complaint
of
the
or
representative
of
or
mine
an
danger
alleged
other
coal
or
or
mine,
of
miners
or
applicant
or

a

agent,
other

discrimina-

cause

representative

has

or

violation

coal

any

miner,

operator's

health
such

any

with

discrim-

manner

any
or

representative

miner,

Act,

this
the

or

operator
the
miners

interfere

otherwise

or

in

be

to

rights

this

or
discharge
discharged

shall
cause

statutory

or

30

Act,

the

relief

APPLICABLE

as

foreman,
of

made

a

1981,

29,

January
or
brought
the
parties

Thereafter,
fact

verdict

directed

frivolously

was

of

findings

testi-

Jack

moved

Zeigler

hearing,
The

After

following
R.
Spinnie,

Wallace.

H.

relief.

Davis,

witnesses

Daniel

Colombo,

Robert

was

wit-

ISSUES

entitled

Supp.

Wendell

l•rgan,

H.

The

Tisdale.
C.

temporary

find

"not

Charles

Hand:

testimony

Zeigler's

did

submitted

Paul

and

bench.

denied

I
I

F.

and

Raphael

for

the

from

parties,
because

Gene

Reidelberger,

Carl

verdict

directed

of

Thomas,

W.

completion

Upon
was

behalf

on

Shan

Gene

that

1980,

testified

nesses

Chief

Zeigler

District

U.S.

of
on
filed
a
discharge
complaint
Complainant
of
a
hearing
requirements,
prehearing
Upon
completion
The
13 and
on
following
14, 1981.
January
Missouri,

18,
Hand.

St.

law.

petition
Zeigler

1980).

Ill.

F.

of

the

in

asserted

Zeigler

Illinois.

process
relief.

injunctive

June

Gene

due

it

relief

injunctive

of

Zeigler's
Thereafter,

denied

reinstatement.

temporary

seeking

denied

motion

held

of

District

Southern

On

order

action

an

ceedings

of

the

of

review

Commission)

(hereinafter

Commission

Review

for

to

that

for

the

employment
transfer
potential

is

section

because

i01

or

for

applicant

or

instituted

because

about

is

or

the

of

for

or

applicant

others

of

any

statutory

Any

miner

(2)
of

miners

person

in

violation

after

such

interfered

be

to

the

basis

the

made

shall

was

of

Secretary

and

and
complaint,
not
frivolously
application
upon

immediate
determines

that

violated,

such

section

regard
shall

final

to

subsection
an

or

30

of

the

such

provisions
immediately
employment,

vacating

the

such

in

The

to

abate

the

of

own

the

of
behalf

during

not

the

to

his

stipulated

on

been
the

with

and

the

of

miners
an

propose
shall

present
held
hearing

following:

694

shall

become

shall

have

committing

person

affirmative
deems
the

to,

rehiring

or

with

back

position
applicant,

miner,

may

the

order

former

STIPULATIONS

parties

order
have

Commission

paragraph.

The

the

Secretary

and

such

limited

complaining
any

order
final

a

take

as

but

miners

complaint
expedited

an

Commission

require
to

miner,
The

interest.

representative

to

violation

including,

reinstatement

such
on

Commission

Such
The

subsection

this

appropriate,
and

relief.
issuance.

proceedings

of

that

representative

relief.

of

receipt

subsection

interference

such

com-

investigation
investigation,

the

or

appropriate
its

copy
such

of

the

a
complaint
violator
alleged
or

or

with
(in accordance
but
without
Code,
of
such
and
thereafter
section)
of
findings
affirming,
fact,
upon
or
Secretary's
order,
proposed

(a)(3)
based

receipt

Secretary's

this

of

the

of

pending

the

upon

order,

with

investigation,
of

or

represen-

or

Upon

finds

file

has

or

discharged,
against
by any
within
60
days

Such

miner

the

the

after

days

violation

action

his

the

service

other

authority

pay

cause

be

to
Act

been

Commission,
shall
Secretary,

discrimination

issue

modifying,
directing

a

shall

a

granting
appropriate
for
an
a
opportunity
hearing;
of
title
united
554
States
5,

afford

this

the

upon

for

caused

may,

Secretary

of

shall

he

alleging
order

the

If

with
Commission,
miner,
applicant

has

forward

brought,

reinstatement

complaint.

the

if

miners

to

complaint

a

appropriate.
of
15 days

within

to

of

or

discriminated

respondent

commence

he

subsection

this

deems

pursuant

employment

for

file
occurs,
such
discrimination.

he

as

related

that

shall

the

instituted
or

otherwise

or

alleging

complaint,
to
plaint

has
under

believes

violation

Secretary

miner,

applicant

or

who

with,

published
representative

and

in
such
proceeding,
testify
any
such
miner,
by
representative
behalf
of
himself
on
employment
afforded
this
Act.
by
right

to

exercise

miners

tative

such

evaluations

medical

standard

a

employment
proceeding

any

testified

of

subject

under

additional

pursuant

or

evidence
to

this

on

i.
and

is

operator

an

Health

The

2.

ii

No.

Mine,
and

Safety

Mine

Federal

the

Act).

(the

located

Mine,

section

3(h)(1)

Complainant

was

in

of

the

operated

Company

3(b)

section

in

defined

ii

No.

Coal

Zeigler

times,

as

1977

of

Act

defined

relevant

all

At

the

of

in

Randolph

Act,

the

is

Illinois,

County,

which

of

products

mine

a

enter

affect

or

commerce.

3.

Respondent

on

its

at

Complainant

December

21,

5.

Complainant

its

to

assistant

6.

7.

April

was

hired

by

until

its

closure

Coal

Zeigler

Respondent,

by

by

1979.

Company,

-.

Mine

and

1973,

9,

July

on

employed

1979.

in

as

section

a

1975,

13,

January

on

manager

Respondent

hired

originally

mine

foreman,

and

promoted

was

mine

a

on

manager

1975.

find

transferred

was

short

a

his

at

FINDINGS

OF

of

the

the

to

request

Respondent's

at

tenure

preponderance

the

that

No.

ii

No.

4

Mine

on

Mine.

FACT

of

this

proceeding,

the

establishes

record

evidence

facts:

following

Zeigler,

i.

relevant

times

all

at

and

Mine,

ii

December

in

discharged

Complainant
after
1979,
23,

I

•,•ne

of

foreman

section

underground

an

as

was

Complainant,
24,

March

No.

1979

Spartan

in

ii

No.

4.

employed

Zeigler

is

to
as

defined

located

in

Randolph

3(h)(1)

of

the

"operator"

an

section

in

operated
3(b)

the
of

the

Act.

Zeigler's

2.
is

"mine"

a

Zeigler

No.

3.
at

defined

ii

Mine

a

5.
ii

Mine

6.

On

2

in

affect

hired

his

March

Zeigler

No.

work

at

to

Zeigler

No.

an

underground

request,
was

on

employed

as

ii

17,

1979.

4

Mine,

Mine

on

1975.

Gene

April

section

He

worked

F.

Hand

23,

1979.

foreman

1979.

21,

1979,

Gene

F.

Hand

was

discharged

by

Zeigler

mine

assistant

24,

March

on

manager

closed

it

of

of

by

foreman
to

and

mine

until

products

The

section
underground
was
promoted

an

1973,

and

and

Illinois,

County,

Act.

commerce.

as

9,

period

December

December

is

and

Mine

short

Hand

F.

Gene

in

section

July
1975,

on

at

transferred,

Mine

was

13,

No.

After

ii

enter

Hand

F.

Gene

Spartan
4.

No.

as

Mine
Spartan
on
January

its

manager
the
at

was

No.

Zeigler.

at

the

7.

Between

he

charge,
(a)
requiring

In

(b)
and

the

During

complaint

(c)

In

was

reported

lodged

against

Hand

•llace

1979,

Hand

section.

warned

him

(e)

In
December
early
a
following
dispute
Hand's
with
Dotson
dispute
between
Reidelberger,
stepped

much

Wallace

engage

1979,

Hand

between

after

After

the

•iter

General

Mine

incident

with

Manager,
Dotson,

"not

(f)

mid-December

In

with
temper
reprimanded
8.

safety
conduct,

which

going

to

the

In

about

miners.

the

prior
3

No.

Zeigler

9.

committeeman

additional

Wallace

20,

1979,
bolters

there

mine.

to

unit

21,

1979,

to

had

catch

10.

the
of
December
morning
on
roof
bolts
readings
the
UMWA
committee.
safety

On

torque

results

just

to

ii.

At

been

installed

the

revised

12.
ance

and

this

time,

Hand

also

and

Hand

believed

roof-control

Thereafter,
others

required

number

Zeigler's

Chief

informed

Hand

out

of

of

roof

Mining
Superintendent

in

the

noticed

plan

adopted

checked

some

compliance.
bolts

for

Engineer,
Wallace

these

by

bolts

By
a.m.,
when
torque
Ray Colombo,
of

the

696

major

the

roof

operator

took

reported

the

roof

bolts

bolts

did

which

had
conform

not

Zeigler.

roof

ii

two

Wallace

and

roof

to

these

on

drill

section

4-foot

some

that

coal

a

3

No.

been

up

bolting.

some

it

again

Superintendent

request,

Hand's

with

up

Following
plan.

roof-control

Hand's

at

1979,
the

of

revised

a

roof

21,

unit

or

Dotson.
Carl

complained
his
losing

included

Superintendent

December

to

section

adopted

December

On

assigned

UMWA

a

Hand's

Thereafter,

weeks

the
in

occurrences,

Hand

put

Hand.

falls

roof

1979,

•llace

the

Superintendent

Electrician

was

he

ordered

Superintendent

again.

by

Chief

he

Mine

longer."

Superintendent

to

adequately

to

reprimanded
and
when

that

Hand

failure

conduct

such

was

Hand

them.

told

he
allegedly
(hereinafter
UP, A)
committee.
safety

UI.B$A

for
5 days
reinstatement,

in

terminated

was

the

for

Hand's

to

after

America

by

policy

line.

suspended

Upon

i•llace

Superintendent

air

was

not

him

reprimanded

was

steel

a

of

dis-

Zeigler's

reprimanded

was

Workers

Hand's

of

follows:

violating
occur.
they

day

Hand

was

his

off

1979,
Mine

of

August

In

manager

of

date

the
as

for
the

on

United

extension

1979,
action

reprimanded

the

1979,

August

the

supervise

(d)

of

21,

disciplinary

be

summer

member

December

and
of

Hand

accidents

formal

Robert

1979,

June

a

a

mine

the

that

threatened

1979,
subject

June

was

he

and

found

had

not

Superintendent
arrived

problem

on

compli-

in

some

checked

the

Wallace
Hand's

concerning

and

section.
the

torque

of

roof

the

Again,

of

some

told

and

him

to

believe

that

the

bolts.

Hand

became

off

get

for

the

manner

a

miner

to

and

shift

December

21,

for

insubordination.

his

completed

Hand

When

that

•llace's

office

and

thereupon

14.

Although

Hand

contends

concerning

roof

bolting

any

such

violation

in

the

torque

of

bolts

roof

there

unit

and

report

his

section

told

it

out.

1979,

showed

torque
Wallace

roof

he

summoned

not

to

was

law

federal

report
on
report

not

his

in

law.

of

violation

no

did

did

he

1979,

21,

information

the

prob-

Hand

of

violation

a

was

December

on

daily
in

on

that

Hand

straighten

discharged

his

on

his

qualified

to

Wallace.

was

this

bolts.

by Wallace
with
argued
would
Hand,
he,

and

excited

Wallace

not.

handled

had

roof

the

together.

bolts

were

he

which

in

torquing

suggested

person

section

his

13.
to

Hand

others

and

compliance

in

were

roof

torqued

thereupon

assign

criticized

thereupon
lem

bolts

the

Wallace

and

Hand

bolts;

DISCUSSION

Whether

I.

Hand,

Gene

of

Protection

contends

Zeigler
within

authority

for

this

Congress

"drew

a

section

foreman,
•ISHA,

of

3(g)

tion

the

of
mine

is

(4th

Cir.

3(g)

individual
Coal

the

in

in

the

in

a

coal

30

U.S.C.

is

of

definition

the
and

as

Act,

a

"miner"

in

basis

for

reasonable

no

relies

of

Public
this
the

Act,

is

that

a

of

owner

an

a

325

F.2d

538

sec-

decision

1975

a

upon

the

Third
also

that

section
the

3(g)
Circuit

"miners"

of

that

the
of

Court
under

the

Act.

697

was

1969
of

Act,
a

T.

held
Marshall

as

foreman

section

a

supervisory

constituting

Charles

Appeals

that

"miner"
"miner"

"Any individual
30, 1969.
not
changed

December

"miner"

"miner"

of

owner

Act.

of

Act.

foremen,
the

term

follows:

3(g)

clear
the

definition

that

held

The

of

is
of

Under

the
definition

section

it

purposes

defines

as

was

definition

the

erroneous.

Appeals
section

91-173,

Law

for

from

excluded

1969

of

definition,

contention,

mine."

other
Act

matter,

802(g),

§

or

Safety

"miner"

a

coal

a

mine."
Under

Operations

were

and

Act.
mine

recently,
mine

Act,
in

purposes

1977

purposes
a

5

Health

of

Zeigler's
are
personnel,
of
the
I05(c)
Mine

Sink,

working
coal

a

for

the

of

Mine

in

working
Thus,

T.

the

mine."

a

also

specific

no

of
such

holding
Appeals
IBMA
aff'd,
225,
217,

Operations

Mine

cites

1976).

Section

"any

of

Charles

miner.

a

that

'miner'

a

sections

personnel,

in

unambiguous,
clear,
MSHA
exists."

"is

Board

Interior

the

work

jurisdiction
not

is

Zeigler
other

in

supervisory

contends

Hand,

of

that

who

the

to

without
Hand

Act."

the

of

argues

'miners'

Entitled

is

because

between

the

Act

Commission

i05(c)
but

interpretation

restrictive

Review

"Miner"

a

Act

discrimination

distinction

behalf

on

"the
of

contention

and

the

of

section

of

meaning

the

is

Foreman,

i05(c)
that

claim

Hand's

consider

to

Section

a

Section

mine

Sink,
that
v.

for
the
was

of

purposes
Interior
also

supra
four

Kraynak,

section

of

Board
a

for

miner

225.

at

brothers
604

More

who
F.2d

owned
231

(3d

Cir.

1979).

"miner"

at
all
that,
employed
by Zeigler,
have
I
Therefore,

Act.

whether

II.

Zeigler

Recently,
Pasula),
history

the

Commission

of

that

•

of

derance

of

protected

persuasion.
by proving

although
motivated

would

deserved

for

Hand

contends
the

an

Brief

at

that

he

(2)
for

v.

(hereinafter
the
legislative
under
arising

prima

a

if

engaged

adverse

action

a

preponin

a

was

these

On

for

him

that

he

was

that

that
miner

any

Hand

failed

tO

establish

his

discharge;

(3)
under

activity

resulted

the

the

in

torque

Id.

event.

any

discharged
resisted

to

by

roof

in
an

roof

Zeigler

his
order

unprotected

originally
the

bolts.

con-

adverse

same

must

show

of

discipline

and

that

that

he

2799-2800.

at

because

"was

section
from

It

miner

the

of

his

unsafe

superintendent

Complainant's

the

violato

Hand
(i)
failed
following:
to
establish
at
the
time
of
his
activity
discharge;
that
a
safety
was
a
complaint
reason
motivating
was
for
insubordination
discharged
conduct
which
and
(4) Zeigler
would
Act;
have
Hand
for
discharged

protected
Hand

complaints
and

Posthearing

the

asserts

in

in

the

he

persuasion.

not

any

issues,

that
in

did

in

these

of

it.
The
employer
employee
deserving
alone
activity

unprotected

Wallace
and

have

the

the

engaging

conduct

consider

not

show

to

miner
On

burden

fired

consider
in

alone.

ultimate

to

the

against

been

enough

unqualified
17.
Zeigler

protected
unprotected

the

disciplined

law"

action

employer

engaged

not

the

activity.

activities

unprotected

will
fact

engaging
have

assign

his

in

would

of

1980)
Act,

he

protected

the

the

Superintendent

tive

is

we

did

Pasula

14,

established

that

of

matter.

David

I05(c)(i)
the

for

employer

action,
he

the

by

bear

have
if

the

that

adverse

must

to

activity;
cern

(i)

unprotected

sufficient

not

proves

i05(c)

follows:

as

has

Section

section

a

section

issues

held

of

(2)

of

Hand,

F.

of

anti-retaliation

complainant

part

taken

the

employer

is

Commission

of

Act

(October
of
i05(c)

2786

section

The

the

of

behalf

on

similar

and

any

have
for

the

Labor
FMSHRC

Gene

purposes
decide
this

to

definition

must
bear
the
complainant
ultimate
burden
of
The
employer
may
affirmatively
defend,
however,
of
all
by a preponderance
the
evidence
that,
of
his
motive
was
part
he
also
(i)
was
unlawful,
miner's
by the
and
unprotected
(2) that
activities,

the

event

of

the

ambiguity."

herein,

i05(c)

2

that

for

jurisdiction

evidence

in

issues

he

the

relevant

Section

the

Circuit
from

"miner"

a

violation

a

activity,

motivated

to

that

hold
case

free

and

statutes.

facie

Third

"is

analyzed

section,

federal

the

Act

times

Secretary
Company,

Coal

with

was

Violated

in

Consolidation

other

agree
of
the

3(g)

conclude

I

foreman
the

also

I

section

in

-

alone.

698

A.

Did

Gene

F.

complained

Hand

contends

testified

that

section
any

miner

Section

i05(c)(i)
including,

inter

[a]
complaint
or

safety

or

because
*

miners

i05(c)

Section
made

to

had

been

the

in

Hand's

establishes

this

had

this

section

adopted

been

had

on

apparently
apparently

lation

of

the

merits

of

these

quently
"complaint

evidence

to

assign,

Hand

the

with

i05(c)

section

ing

plaint

the

manner

and,

shall

complaint

be

roof

bolts

which

plan.
suffice

notified

him

complaints

to

less

clear

Hand's
I

in

the

which

Wallace's
of

the

of

checking
protected

Act,

a

*

*

part

an

that

find

to

roof

or

order.

bolts

that

conclude

also

torque

activity

of
under

should
Under

roof

Hand's
bolts

section

of

roof

in

vio-

unbe-

Other

the

examine

miners

When
he

he
was

subse-

making

activity.

purported

check
did

the

broad

Hand

language

disagreement
constitutes
the

of

concerna

of

torque
with

discuss

checked.

be

i05(c)

a

viola-

health

or

to

tile

shift

Hand's

on

Wallace's

Superintendent
unqualified
person
Wallace
Superintendent

of

torque

installed

complaint.
Wallace,
of
an
alleged
danger
constitutes
protected

torque

the

been

the

bolt

committee.

unnecessary

that

say

suggestion
I

safety

just

At

roof

question,
the

concerning

opinion,

However,

is

in

safety
Superintendent

of

Hand's

on

to

day

UltrA

had

roofof

to

miners

checked

the

It

it

*

operator

revised
and
a
plan
Hand,
production
roof
little
bolting.

the

crew

there
roof

major

to

too

On

his

on

incident,
Two

additional

incident.

this

4-foot

action

is

of

to

the

section.

assigned

operator

roof-control

in

hence,

because

this

to

prior

According

violation

these

manner

disagreed

statutory

such

roof-control

the

a

question

bolts.

roof

*

of

any

which

Hand's

Zeigler.

Wallace

complaints,

Such

The
order

on

reported
saw

notifying
*."

the

roof

reduced

drill

revised

day in
relayed
*

tion

month

in

the

by

been

coal

a

and

the

of

a

*

*

mine

representative

in

that,

Superintendent
the
day before

Hand,

to

miners

other

or

manner

reevaluated

MSHA

plan

section

bolts

protected

including
alleged
danger

an

others

or

the

with

problems

request,

knownst

of

types

Act,

of

miner,

himself

order

Act.

prescribe

not

occurred.

had

of

this

part

an

giving

bolts.

this
*

coal

a

any

operator.

serious

control
coal

does

in

such

by

Wallace

that

denied

certain

to
*

*

also

him

he

making:

or

related

violation

told

never

roof

forth

sets

or

had

the

operator

exercise

by

order

Wallace

filing

the

behalf

on

evidence

The
falls

*

Act

under

the

afforded

right

of

*

the

when
activity
bolts,
inadequate
that
an
unqualified
Superintendent

roof

bolts.

Hand

torque

alia,

health
of

short

roof

question,
Superintendent

in

of

protected

in

of

torque

should

complaint
notifying
or

about

Activity?

superintendent's

unsafe.

was

engaged

the

day

particular

activity

on

the

on

he
Wallace

the

check

to

that,

the

that

and

bolts,

assigned

Protected

in

Engage

Superintendent

roof

be

of

F.

to

of

torque
miner

Hand

Gene

safety
Act.

com-

Hand's

B.

Was

An

analysis

1979,

must

five

fact

On

his

l•llace
the

His

daily

Hand

to
the
prior
discharge,
Of
5-day
suspension.
particular
for
was
5 days
in
suspended
August
1979,
section.
his
Hand
Upon
reinstatement,

Hand

6

and

a

21,

1979,

makes

of

torque

this

At

And

crew

this

trying

was

got

little

a

us

to

comply

to

let

me,

the

with,
the

that,

and

those

that

run

get

of

Superintendent

it

to

should

be

after

way

the

to

leave

up

Hand
to

check

we

this,
us

I
to

wanted

section.

And

responsible

was

where

the

and

federals
my

that
to

that
miner

hot.

bolts

books,

clear

is

four-foot

the

the
signed
straightened

law.

Thereafter,
•llace,
torqued.

returned

him

him

the

bolts.

it

con-

and

allege

not

he

everything,
up--after
not
getting

straightened

Hand

of

little

a

them

and

over

asked

to

got
at

his

of

does

this

follows:

four-foot

excited

I

I

federals

procedure

proper
and

man

try

of
the
the

get

nervous

with

proceed

to

and

that

unqualified

an
as

looking

warned

bolts

disputed,

assign

testified

after

with

meeting

to

confused,

was

thought

I

more

had

I

roof

is

him
Hand

Wallace,

Mr.

bolts--the

discussion

the
mine

roof

with

•en

which

is

was

Hand

subject
the

violation

in

problem

in

ordered

bolts.

time

asked

I

had

roof

the

bolts.
were

21,
the

ordering

Thereafter,

problems.

manner

this

had

the

the

was

Wallace

section.

day
any

other

to

the
of

Wallace

of

mention

attend

of

December

importance,
for

Superintendent
his

on

torque
him
that

by

about

substance

that

the

no

to

relevant

notified
bolts

torqued

enused
the

roof

check

to

report
Wallace

Hand

of

bolts

the

months

torque

concluded

for

the

the

Although
the

preceded

December

left

Activity?

on

tolerated.

discussion

Protected

that

not

roof

the

by

Part

Hand

proceeded

that

Any
for

of

examination

be

about

cern

a

Hand
would

motivation

in

events

During

off

manager
conduct

Zeigler's
an

reprimands
that

Motivated

discharging

include

discharge.
of

of

Discharge

could

we

run

coal.

(Tr.

91).
The

as

testimony

Wallace

this

concerning

confrontation

follows:

So
and

Gene

I

started
and

I

back
and

over

Columbo

and
went

here
to

anybody,

Gene

came

the

face

out

up

of

to

the

face,

earshot

of

else
far
as
as
which
at
told
I
anybody
hearing,
point
I
it
was
in
the
first
Gene,
"Gene,
said,
your
responsibility
to
the
take
the
man
to
and
back
place
designate
torques
report
to
not
it
is
to
to
man."
a
just
you,
anybody,
designate
up
you
But
"If
I
and
start
said,
you
quit
bellyaching
your
doing
and
the
what
men
and
to
do
job
are
your
telling
they
supposed
that
is
see
it
that
either
and
or
being
done,
quit
get
your
of
out
the
ass
mine."
Excuse
the
•lich
At
language.
point
that

is

when

Mr.

Hand

blew

up.

700

was

ups,

He

said

it

was

him.

said,

He

the

mine

is

ass

off

my

told

I

is

being

in

my

About

the

shells

out

to

go

out

to

the

shape

we

and

I

the

long

this

mine

told

help

the

Gene,

I

get

lined

get

the

I

to

want

go
to

you

lined

out
to

direct

that

that

have

to

are

said

continued

a

you
And

he

shells

He

giving

out."

jobs

to

came

and

the

done."

shooting
I'm
"Gene,

your

point

the

going
"Gene,

said,

shooters

that

there
was

get
which

superintendent
see

shooter,

he

and

of

reason

"Just
At

and

in

rid

get
the

said,
I'm

as

hollered

some

shooters

he

the

Blair,

going
I

get
said,

can

argue.

as

to

by higher

to

section."

my

off

have
That's

and

off

Mike

there

sent

section.

is,"

it

He

bench.

or

would

"Gene,

time

not

there
that
a

stay

come

were

me

run

entrance.

there

help

can't

said,

the

the

so

"You

this

of

than

and

I

hired

was

ups

job to
proper."

done

mouth

he

section

him,

that

and

that

higher

want

Go

order.

ended

our

conversation.

(Tr.

288-289).
•llace's

Superintendent
let's

Well,

he

told

say
was

me

anything
leaving

the

4:00

the

get
at

discharge
o'clock."

manager
it

done

he

"I

said,

section"

different

is

the

than

me.

that

he

section,
I

done

Columbo,

I

of

out

gets

said,

"I'm

last

wrong,

would

follows:

as

when

I

did

not

but

as

I

"I'm

to
going
at
tonight
the
mine
running
take
to
going

said,

mine

for
not

straw."
I

was

right
but

the

him

I

head

my

suspended
and

This

longer.

any

"You

when

I

the

told

I

Hand

into
his

possibly

time,

section

of

out

Hand

discharging

popped

it

hell

that

Gene

off

that

say

to

for

reason

Columbo

Mr.

have

fired

him

said,
the

on

spot."
291).

(Tr.

Hand

Thus,
both

in

contends
with

connection

unqualified
solely
discharged
of

miner

an

the

for

after

section

the

a

and

length
check

to

the

of

torque

ordering
ordering

in

for

suspension

complaining

roof

bolts

Zeigle

torque.

insubordination

prior

for

discharged

was

r

and

about

safety

the

assignment

that

asserts

the

superintendent

the

mine

Hand

was

off
the

off

manager

section.

conclude

I

safety

about
in

or

give
5 days

an

inference

August

1979,

to

rise
in

Hand
failed

protected
that
otherwise,

Moreover,

activity.

while
he

matters,
by the

part

any

admission

that

the

engaged

for

that

activity.
Hand's

discharge
surrounding

is
was

unlawful

his

.

in

discharge
by

motivated

by

Hand's

discharge
Hand

was

the

mine

of

way

his

motivated

ordering

complaining
was

evidence,

no

discrimination.

insubordination

by

activity

protected

There

circumstances
of

in

establish

to

protected
do

not

for

suspended
manager

off

his

section.

He

conclude

that

was

warned

that

has

established

Zeigler

conduct

such

the

would

fact

be

not

that

when,

tolerated.

I

December

on

21,

ordered
off
Wallace
the
it
"the
last
was
Superintendent
section,
Hand's
order
Wallace
to
to
leave
the
section
was
Clearly,
activity
which
is
not
under
of
section
the
Act.
Since
Hand's
action
I05(c)
protected
Wallace
off
the
in
in
with
Hand's
ordering
Superintendent
section,
conjunction
the
for
at
was
motivation
Hand's
disdisciplinary
problems
prior
Zeigler,
failed
Hand
to
his
burden
of
that
his
was
charge,
persuasion
carry
discharge
motivated
in
part
by his
protected
any
activity.
Hand

1979,

straw."

that
arguendo,
by his
protected

establish
that
his
was
could
discharge
he
fail
to
activity,
would,
nevertheless,
in
this
matter
because
has
established
that
it
have
would
Zeigler
him
for
his
that
his
insubordinaunprotected
activity
alone,
is,
the
off
the
section.
believe
that
the
I
ordering
superintendent
situation
such
this
when
stated:
a
as
it
contemplated

Assuming,
motivated

part

prevail
discharged
tion

in

Commission

other

the

On

would

hardly

of

lawful

that

unfit

further

failed

to

his

Discharge

denied

is

and

I.

At
miner

a

2.

3.

This

relevant

defined

in

to

this

the

Act

and

Company

is

subject

administrative

law

judge

this

proceeding.

of

of

On

December

4.

which

his

of

is

roof

done
the

engaged
better

a

nothing.
record
the

shows
miner

as

section

motivated
was
discharge
would
have
Zeigler
discharged
the
of
Therefore,
Complaint
Reinstatement

is

dissolved.

LAW

OF

decision,

Complainant

entitled

to

the

Gene

F.

Hand

afforded

protection

in

Act.

21,
protected

Robert

Superintendent
on

the

Coal

matter

activity

torque

times

as

Zeigler

subject

bolts

all

I05(c)

section

for

his

Temporary

CONCLUSIONS

was

in

has

that

alone.
of

Order

the

that

prove
and

his

protected
activity
activities
unprotected

by

part

for

Hand

that

conclude

I

it
the

discharged
who

in

2800.

at

supra

any

him

employer

for

Pasula,

in

require

the

put

been

miner

a

activities
unprotected
would
had
have
he
occupied
reinstatement
even
though
would
have
assessed
lawfully
employment.

he

than

would

would

It

order

to

purpose
have

would

that

recognizes

and

protected

position
It

statutory
who

miner

alone.

reasons

both

in

the
a

Commission

the

hand,

further

reinstatement

Hand

1979,

Wallace
and

Complainant

under

the

section

concerning

qualification

bolts.

702

the

to

has

provisions

jurisdiction

Hand

Gene

of
i05(c)
the
length
of

a

miner

of

over

engaged
the
and

Act:

the

the

in

Act.

and

parties

the
following
to
Complaints

torque

of

the

assigned

to

che•k

roof
the

5.

Complainant

Gene

supra,

motivated,

in

discharge

him

December

activities,

Company

off

to

6.

Hand's

his

section,

105(c)

of

action

Hand

F.

on

21,

the

decision

1979,

have

9.

Zeigler's

Complainant

ii.
on

The

the

Gene

Order

20,

May

of

discharge
of
i05(c)

section

i0.

Hand

in

considered

it

of

1980,

Gene

under

section

off

of

be

to

Hand

a

of

deserving

his

off

and

activities

on

despite

received

section

1979,

section.

superintendent

1979,
his

his

21,
five

of

since

5-day
Zeigler

1979,

did

a

alone.

December

21,

not

Act.

Hand's

F.

of

complaint

Reinstatement

Temporary

entered

denied.

is

discharge
in

favor

of

Complaint

of

Discharge

Gene

F.

dissolved.

hereby

is

December

on

consisting
because,

mine

Hand

F.

Hand

Hand

the

ordering

since
in
21, 1979,
August
for
the
mine
off
ordering
manager
for
Hand
his
discharged
unprotected

suspension

violate

that

December

on

would

established

insubordination

for

section

superintendent

mine

protected

not

Act.

Zeigler

8.

the

ordering
is

7.
Coal
Gene
F.
Zeigler
Company discharged
6-month
of
a
action
following
history
disciplinary
and
a
for
reprimands
5-day
suspension
insubordination,
he
ordered
the
mine
prior
warning,
superintendent

discharge

the
protected
Coal
Zeigler

of

1979.

which

activity

that

establish

to

part,

21,

December

on

constitutes

the

failed
any

ORDER

WHEREFORE,

IT

IS

that

ORDERED

Complainant's

is

OENIED.

Gene

IT

IS

FURTHER

F.

Hand

is

that

ORDERED

Order

the

of

Reinstatement

Temporary

of

DISSOLVED.

James

A.

Laurens0n,

Judge

Distribution:
J

Frederick

W.

Solicitor,
D.

J.

Moncrief,
Wilson

Blvd.,

Esq,

Alexander,

•chael

Miller,

Lawrence,

17

Halbert

Woods,

Des

Plains,

U.S.

Esq.,

4015

South

IL

High
Esq.,

60018

Street,

Zeigler
(Certified

of

Department

Arlington,

VA

Ebinger,
Col•mbus,
Coal

Company,
Mail)

Fisher,
OH

Office

Labor,

22203

43215
2700

of

(Certified
McAlister

&

(Certified
River

the

Mail)

Road,

Mail)

OFFICE

OF

ADMINISTRATIVE

lAW

2

lOth

FLOOR

LEESBURG

PIKE

SKYLINE,
5203

OF

COMMISSION

JUDGES

22041

2 5

!98

:,

Civil

LABOR,

SAFETY

MINE

VIRGINIA

CHURCH,

FALLS

SECRETARY

REVIEW

HEALTH

AND

SAFETY

MINE

FEDERAL

Proceeding

Penalty

HEALTH

AND

(MSHA)

ADMINISTRATION

:

Docket

:

A.O.

:

Rockport

,

Petitioner

80-82-M

LAKE

No.

12-01389-05003

No.

V.

INC.,

>•TERIALS,

EVANSVILLE

Plant

Respondent
DECISION

Rafael

Appearances:

Alvarez,

Philip

proceeding

This

ll0(a)
et

for

safety

parties
ings,

tial

I

establishes

the

heard

following

all

At

operated
produced

plant

a

interstate

the

the

material
six

at

to

it

carried

hundred
ever,

find-

proposed

transcript.
record

the

and

probative,

reliable,

a

as

substan-

and

FACT

OF

for

limestone

the

parties

Materials,

Evansville

Respondent,
Plant
Rockport

the

sales

County,

Spencer

in
in

Inc.,
Indiana,

substantially

or

engaged
Rockport

in

material

from

the

classified,

was

belts

at

feet

and

the

belt

its

the
traveled
direction

of

shoreline

washed,

and

which

varied

plant,
at

from

material
dredging
the
Plant
alongside

was

Respondent

transporting

about

the

Both

Indiana.
their

801
manda-

of

violations

which

affecting

commerce.

2.

belts

as

and

gravel,

sand,

of

times,

pertinent
known

receipt

the

of
preponderance
the
following:
FINDINGS

i.

submitted

of

contentions

alleged
Evansville,

have

who

counsel,

for
at

§

U.S.C.

30

1977,

of

Act

Health

section

under

Labor

of

Secretary

penalties
was

briefs
the

the

that

find

evidence

and

case

by

considered

Having

by

civil

The

and

conclusions,

whole,

of

represented

were

Solicitor,

Respondent.

for

Safety

assessment

the

Petitioner;

Fauver

•ne

standards.

for

Labor,

brought

was

Federal

the

of

seq.,

tory

William

Judge

Before:

of

Office

Esq.,

of
Department
E.
Balcomb,

U.S.

stockpiled
in
length

walking
pace.
points,
change

The

a

7O4

the

river

the

belts

the

Ohio

on

barges.
to

river

for

20
were

passed

Conveyor
where

plant,
There

sales.

from
belts

the

and

River

feet

to

waist-high;
overhead.

were

several
how-

The

Concerning

Citation

3.
check
off

belt

A

flow

the
belt

the

material

was

easily

blown

of

off

belts.

that

passed

the

wind,

these

could

risk,

butnot

potential

evidence

the

tected
was

wind-blown

not

beach

appear
that

gust

of

to

4.

In

around

and

brim

the

tail

irritate

or

injure

the

eyes.

realized

that
sand
that

and

gravel

pulley

and,

if

Eye

injuries

the

hardhats
employees'
and
so
gravel
particles
enter
an
might
employee's

more

severe

from

sand

than

the

being

blown

risk

of

by
a

brim

pro-

risk

potential
This

eyes.

injury

someone's

into

from

caught

a

the

eye

fell

preponderance

with
that

not

was

were

The

experience.

by

it

risk

on

an

by

eyes

does
ocean

sudden

a

would

lenses

resistant

with

equipped
lenses

5.

prevent

to

shields

to

(although

some

of

difficulty

complained

and

lenses

the

eye

employees

often

employees

from

injuries

eye

prevent

had

Respondent

because

the

its
to
wear
plant,
Responden
employees
t required
with
As mentioned,
the
hardhats
came
glasses.
to
the
and
face
from
injuries
head,
protect
against
eyes
The
constructed
of
were
required
safety
impactglasses

objects.

front

around

sand

impact-resistant

that

falling

the

and

particles

times,

sothat

wet,
of

or

been
result

usually

was

overhead

actually

could

and

wind.

hardhats
a

river
At

falling
particles

have

and

the

established
from

them

beside
the
belts
to
walkways
conveyor
be
blown
and
could
particles
gravel
the
the
enter
operator's
However,
eyes.
sand

Dust,

from

belts

the

wind

of

by a gust
dredged

the

of

traveled

operator
material.

the

Glasses

Safety

became

injuries

direct

impact

from

particles

glasses

wore

but

side

with

its
enforcing
safety
that
foreign
particles
behind
the
lenses,
trapped

they

eyeglass

not

were

around

entering
shields).

requirement

collected

on

interfering

the
with

vision.

federal

Spruell,
accompanied
by
Jerry
the
superintendents,
inspected
without
The
Plant.
was
Rockport
inspector
wearing
impact-resistant
glasses
Steve
The
observed
the
shields.
Davis,
inspector
plant
operator,
peripheral
and
underneath
the
control
on
and
room
belts,
traveling
leaving
entering
tail
The
belts
and
were
across
transporting
pulleys.
walkways
belts,
past
have
and
did
a
sand.
The
not
not
was
wearing
glasses
Respondent
operator
which
Other
of
for
him
to
wear.
were
employees
wearing
glasses,
pair
glasses
not
be
but
he
was
believed
to
Inspector
Spruell
impact-resistant
glasses,
looked
of
and
this.
The
most
sure
worn
by the
inspector
employees
glasses
distinbe
and
could
much
like
framed
not
readily
ordinary
eyeglasses,
very
lenses.
as
guished
impact-resistant
having
6.

Arnold

rial

7,

August

On

Mulzer,

Jr.,

7.

During

the

was

falling

or

tor

had

not

an

to

wipe
injury.

eye

8.

Respondent,

On

of

from

7,
in

inspector

Respondent's

inspection,
blowing

sand

August
reading

1979,

one

his

there

was

the

belts.

from
eyes.

1979,

Inspector

part:

"The

This

a

On

several

caused

Spruell
plant

breeze

slight

operator

a

and

slight

eye

Citation

issued
was

some

observed

loose
the

occasions,

mate-

inspecbut

irritation,

No.

367445

working

to

around

the

tail

had

to

was

noted

the

employees;
9.

At

from

by

a

i0.

glasses

did

not

pieces
of

Concerning

Brakes

Sized

gency

below

70

when

brakes.

ii.

When

the

chambers.

slightly

larger

required

for

bucket

four

were

chambers
the

of

front

also

chambers

of

rear

loader

the

12.

Each

brake

brake

emergency

chamber
The

and

a

compressed

diaphragm

because

and

and

compartment
the

loaders

that

operemer-

dropped

pressure

activated

the

valve
service

transmission.

attached

to

six

brake

to

loader

the

carried

and

the

two

braking
power
when
weight

More

service

a

brake

service

more

return

entered

the

service

to

apply

outward

13.

brakes

the

When

would

the

either
in

camshaft,

2

service

air

chamber

which

forced

the

brakes.
in

stop

was

the

the

When

lock

p.s.i.
brake

below

the

operator's
springs
releasing

in

by

pedal

forced
75

emergency
fell

pressure

an

brake
and

About

The

flash

the

either

chamber

brakes.

air

would

and
rod

a

the

emergency

system

acti-

was

seconds.

brakes

the

or

extended
two

When
brake

spring.

When
3

to

cylinder

contained

spring.

automatically

the

against

pistons

rod

would

brake

cylinder

diaphragm

air

assembly

rod

machine

the

a

the

control

air
of

dumped

were
on

brake

the

it

to
the
return
required
compress
diaphragm
contained
a
and
a
cylinder
piston
spring.
70
buzzer
a
would
sound
and
a
p.s.i.,
light

rotate

that

loader.

was

push

air

not

was

areas

parking

front

additional

an

brakes

compressor

the

contained

cylinder.

diaphragm

a
assembly,
was
depressed,

the

be

loaded.

was

to
push
vated,

all

braking
system
a
spring-activated

(2)

compressed

the

to

to

was

The

when

air

an

of

deemed

danger

a

stockpiled

neutralize

on

the

on

the

(regular)
and
pedals

running,
supply

was

continuous

a

There

would

pedal

there
such

loaders.

emergency
brake
pedals

two

were

engine

distributed

engine

the

brake

that

automatically

dash-mounted

a

There

pushed.
left

activated

was

glasses

but

eyes,

from

brake

two

glasses.
being
conveyed

shields.

front-end
service

of

that

or

The

gravel

air-activated
either

manually

evidence.

and

safety
Sand

condition

testified

the

980-B

depressing
braking
system

was

the

sand,

by

cited

inspector
striking

with

without

workshift.

impact-resistant

peripheral

stone,
an

p.s.i,

The

have

trucks

(i)

station
his

providing

the

belt

preponderance

of

ated

areas."

by

customers'

consisted

these

1979,

hearing,

frayed

switching
during

conveyors

21,

the

of

Citation

into

direction

other

falling
August

on

danger
proved

the

under

pass

abated

The

of

pulley

and

brake

forced

shoes

brakes

emergency
the
outward

applied,

were

slack

adjustor

against

the

to

brake

drum.

14.
area

on

red

range

air

pressure

manufacturer

The

the

air
on

pressure
the

air

was

in

established

gauge)
pressure
the
safe

of

gauge)
range,

safe

a

77

122

to

of
the

air

pistons

range

of

air

and

p.s.i,

below

pressure
in

an

the

brake

pressure
unsafe
70

(the

green

(the

range

p.s.i.

•en

chambers

were

He

and

retracted
entered

the

springs

would

15.

other

from

system
the

air

springs

the

air

were

cation

of

both

compressed

16.

to

The

brake

pedal

farther

the

air

17.

The

repeatedly

to

emergency
bleed
the

red

the

if

the

18.
loader

On

while
the

from

hissing
when

the

second,

air

was

the

not

be

19.

The

the

service
the

of

The

The

range.

inspector

brakes.

continuously
the

crawled

the

engine

turned

under

the

leading

to

front

of

slack

adjuster

the

loader,

and

the

the

left

left

he

would

be

long
and

asked

did

it
to
the

Stanley
observed
at

he
He

believed

made

these

drop

a

motor

to

and

apply

sound

of

stopping.
the
inspector

without

and
connections

valve
be

observations

a

air

in

unsafe

the

directional

apply

to
gauge.

the

loose
the

applied.

operator

heard

drop
Dickinson,

air

noticed

were

the

to

the

because

enter

off

turn

as

applied

pressure

inspector

inspector
and

not

about

were

observed

inspector

mechanic,

707

air

a

p.s.i,

inspector

the

the

I0

and

brakes

the

as

lasted

that

The

feet

Normally,

air.

greater

reservoir.

observe

what

air

the

20
heard

inspector

escaping

brakes

continued

brake.

the

of

service

operator

observed
rear

apply,

about

was

the

but

activator

he

When

loader

gauge

the

rear

fall
to

approached

Spruell

5

applied,

the

and

brakes.

then

brakes

of

the

the

and

brakes

between

could

brakes,

were

off,

loader
the

on

he

told

air

escaping

the

would

of

as

the

on

brakes

applied.
the

the

the

the

activate

rush

a

air

slightly,

then

When

far

pushed,

loss

pressure

the

that

the

be

and

sound
be

continued

decreased

gauge

air

in

climbed

applied

operator

pressure.

would

activators.

so

would
to

When

brakes

the

pressure

air

again

to

truck.

a

the

resupplying

inspector

how

according
was
pedal

Inspector

p.m.,

be

there

escaping

brakes

3
into

to

drop

brakes

emergency

gauge
force

would

applireleased,

system.

pressing

by
pressure

springs

about

air

an

the

enough

tested

turned

parking

were

the

pressure

The

applied

the

off,

would
sound

hoses

by
to

engine

at

applied

were

the

far

only
be

would

was

properly.

believed

he

varied
down
more

pressure
before
the
simultaneous

keep
of

were

braking

brakes

to

the

prevent

brakes

emergency
the
engine

prevent

portion

the

material

operator

distributed
the

1979,

accompanied

the

With

the

which

brakes

that

the

dumping

loader,

compressor

When

7,

it

noise,

i

with

August
was

and

pressed

operated

system

emergency

emergency

farther

could
system
of
air.
system
the
emergency

and

range

the

diaphragms

open

air

depressed
would

chambers

The

was

and

was

brake

the

would

pedal

When

valve

brake

service

on

brake

into

pedal

independently
not

service

the

in

reservoir

Once

down.

valve

air

air

check

the

pressure

the

Normally,

the

the

pushed

was

maintained

brake

enter

operate

the

compressed.

systems.

would

air

when

pressure
the

brakes.

emergency

braking
systems
operated
would
braking
systems

was

double

a

braking

and

released

the

remained

either

If

released,

of

air

activated,

was

the

operation,

charged

build.

brakes

activate

normal

pressure

compressor

gradually

one

In

that

to

When

compressed.
brake

parking

emergency

affecting

adequate
so

on,

and

operating.

released,

the

pistons

service

problem

a

when

or

range

the

remained

springs

emergency

force

The

that

so

the
unsafe

leak

at

the

at

the

near

the

with

the

engine

off,

tighten

the

by having
which

cylinder,
until

the

20.

The

loader

It

had

The

did

not

machine

was

the

brakes,

and

heard

squeaks;

On

the

On

Respondent,
air

leak.

August

21,

The

could

the

that

the

the

The

operator

7,

before

coming
was

that

machine

of

reliability

brakes

back

and

The

had

stop

the

to

had

in

braking

emergency

in

opera-

on

the

loader.

367447

980

loader

leak

had
On

that

created
if

accident

an

the

if

or

emergency
He
also

believed

affected

by

should

have

was

to

erratically

that

an

system

No.

rod."

acting

incline.

an

on

and
believed

suddenly

placed

abated.

air

an

forth

inspector
was

been

applied

motion

adjuster

have

the

mph,
air.

Cat.

slack

to

the

jerking
suddenly.
loader

the

past
found

the

on

an

erratic

Citation

brake

rear

7

leak

a

that

inspector
on

to

was

issued

small

Instead,

so.

no

was

few

The

escaping

loader

there

replaced

traveled

5

of

be

brakes

observed
sound
the

Spruell

the
do

to
traveled

the

Inspector
"The
left
condition

of

unsafe

inspector
hear

be

loose

capability
be

a

rarely
gravel.

to

brake

not

and
it

able

was
rear

could

terrain

of

operator

the

left

however,

that

believed

however,
defective,

would

did

August

to

mechanic

mph;

The

the

cited

operator
while

applied

it

seemed

applied

if

were

part:

the

were

occur

brakes

1979,

inspector

possibility
brakes

7,
in

the

of

check

he

of
told

air

1979,

to

worked.

had

The
the

consisted

that

however,

August
reading

15

brakes.

smooth

over

of

ground.

morning

The

23.

level
brakes

no

mechanic

22.

the

the

and

the

tion,

a

the
operator
hebelieved
on

be

to

traveled

speed
site
plant

the

the

wrench;

a

thought

normally

tested

21.

with

maximum

a

at

require
because

apply

operator

inspector
morning.

surface

incline

an

the

following

inclines.
fast.

the

connections

loose

the

air

leak.

24.

The

inspector

the

leak

because

the

was

an

leak

and

air

25.

concluded
mechanic
the

Respondent's

loader

inspector

heard

th•

employees

were

operation

rules

that
required
fully
operable

the

machines

and

all

the

of

were

loader

at

by

pressure

26.

placed

in

front-end

start

a

the

starting

check-list

out

a

ing

the

engine,

listening

for

air

condition.

brakes.

replacement;
company

the

loaders

not

were

parts

that

procedure
was

the

loader

testing

the

brakes,

made

taken

into

of

that

used.

The

check-list

observing

the

air

leaks.

708

pressure

were

needed

unless

a

frepart

replacement
the

a

air

they

that

shop

frequent

required

the

before

parts
the

required

safety

before

be

moving

check

to

the
The

devices

safety

conducted

were

would

for

held.

Before

the

checks

rules

also
all

applying

loaders

A

unless

safe

and

of

of

copy

engine

The
or

operated
in

there

air.

were

supposed

extra

closely.

a

was

and

repair

with

meetings

known
that

morning

hissing

operator

inspections

watched

of

the

operation

replacement.

be

were

that

shift,

Regular

quent
needed

sound

Safety
not

or

operator

provided

loaders.

parts

knew

Respondent

the

safe

of

that
told

were

fill

operator
included
gauge

start-

and

of

27.
usually
required
DiapNragms
a
was
hissing
diaphragm
damaged,
A small
hole
worse.
gradually
grow
until
became
the
it
larger
operator
the
sound
substantial
a
leak,
hissing
brakes
loader
when
the
were
applied.
If

a

leak

air

would

bleed

28.

the

when

the

following
8,
August

did

not

of

William

left

day,

Ne

1979,

he

picked
operated

leaks

any

shop.

He

tested

was

unable

to

find

cylinder

and

a

old

leak

in

the

the

on

suitable

shall

hazard

The

of
of

if

small,

to

install

on

the

shop

the

and

loader.
he

the

help
the

on

chamber

air;

however,
the

reassembled

and

loader

the

ran

experienced

he

the

however,

old

applying

one

plant

chamber

then

the

at

the

With

the

by

old

leaks

brakes;

brake

the

disassembled

not

was

to

and

with
no

Plant,

problems

no

injuries

kind

of

injury

FINDINGS

30

glasses,
in

7,

August
of

around

an

the

belt

blowing

sand

persons

around

injury

from

falling

or

proposes

a

penalty

mine

a

other

or

plant

or

eyes."

unprotected

to

provides:

shields

of

area

injury

cause

which

face

or

has

Secretary

§ 56.15-4,

goggles,
or

the

1979,

C.F.R.

that

defense

of

subject

were

conveyors
and
gravel

and

from

testified

inspector
from

frayed

and
from

such

sources,

with

of

glasses.
falling

that

the

plant

operator

of

hearing
have

evidence
much

709

eye

conveyor

belt.

because,

had

been

there

less

to

Inspector

was

hazard
to

eyes."

contends

Respondent
sand;

this

was

the

all

however,
also

no

the

at

danger

in

contends

Respondent

prepared

that

by

particularity

hazard

protective

would

provable

issued

citation

list

to

the

pieces
the

$28.
the

fails

wearing
to
only

not

refers

of

that

is
it

at
prejudiced
"respondent
citation,

substantial

FURTHER

on

could

was

very

WITH

Glasses

because

citation
the

it

gauge

even

return

Rhodes

argues

first

hazards
the

the

small

pressure

his

the
applied
satisfactorily.

removed

in

observed

when

which

defective

potential

in

safety

Secretary

is

eye

the
a

belt.

Respondent's

that

wear

eye

pieces

Spruell

On

cylinder.

violation

devices

Secretary

The

of

a

exists

hazard

frayed

he

cylinder

issued

with

protective

hearing,

of

detect

leaks,

Rockport

chamber
and

chamber

the

Safety

citation

Respondent
persons

a

7.

chamber

new

He

Concerning

Based

that

With

noise
to

air

all

to

apparent

louder.

way

the

would

brakes.

Citation

charged

the

operated

new

the

hours.

2

at

mechanic,
the

replaced

about

for
the

a

that

August

loader

brakes

DISCUSSION

to

above

only
large,

it
be

not

grew
the

the
was

brake

new

a

the

master

a

installed

the

where

leak

might

months.

9

every

and

noise

heard

required

on

up

the

and

Goffinet,
wheel,

he

"All

the

issued

was

at

The

be

Normally,

superintendent

a

citation

hear

rear

again
with

could

once

noticed

diaphragm
hissing

the

manual

operating

Rhodes,

James

plant
On

The

down.

the

in

and

if

however,

about
be

would

immediately.

sealed

be

listen;

to

was

replacement
sound

been

conclusively
potential

alleged
show
for

any

by

defense

This

violation

be

that

each

the

nature

with

the

standard,

violation,

rule,

regulation,

not

require

that

the

dard

was

designed

to

prevent.

show

to

trying
even

though

they

could

have

found

going

was

to

the

at

to

next

of

evidence

of

striking

torn

or

been

injured

the

the

as

the

by
failed

Secretary
injury
eye

to

from

that

the

by

and

small

that

belts

veyor

glasses.
objects,

did

that

should

operator

tions

based
and

wording

to

making

procedures

fairness

and

the

argues

In

Connally

Supreme

Court
act

an

at

guess
essential

of

due

of

"[A]

subjected

process

Diebold,

Inc.,

either
of

men
as

law."

safety

said:

Co.,

which
that

commercial

court

764

Construction
statute

civil

the

by

759,

to
This

and

Act

adjudicatory
(1969).
385,

U.S.

forbids

impact
the

con-

falling

adminis-

fairly
follow

it.

interpretaClear

can

See

also:

avoid

to

that

rule-

the
to

designed
proceedings.

insure

(1925),

the

391

the

requires

or

that

434

from

held
were

hoc

v.

wearing

frontal

required

has

Court

v.

contends

inspectors.
are

269

glasses
of

and

different

Inc.
Diebold,
Co.
Refining
cert.
denied,

of

glasses.

or

intelligence
its
violates
application
fundamental
principle

violation.

the

hazard

purpose

common

standards

that

a

inconsistent

standard

ad

find

brim.

a

and

Supreme

I

impact-resistant
from
protected

worded

of

never

ever

that

safety

understand

varying

has

has

falling

or

Procedure

U.S.

differ

direct

with

to

The

from

were

operator

supplanted

of

from

preponhazard

Respondent
the

require

employees

prudent

vague
and

meaning

to

as

belt

a

the

that

blowing

can

for
their
penalties
505
F.2d
872
Cir.
(10th
869,
1974);
1335-1336
Cir.
(6th
1978);
Longview
1114
Ct.
(Temp. Emer.
App.
1977),
tion

gravel

clearly

General

so

and

industrial

injuries

be

394

Co.,
v.

terms

to

a
a

protective

Plant.

Administrative
be

by

evidence

relevant

must

operator.
not

prove

belt.

torn

the

require

hardhats

standard

the

said:

i•i
its

mine

should

Wyman-Gordon

to

as

hazard

wearing

be

stan-

Respondent
Secretary

employee

no

Rockport

prevent
and
a

by

of

established

its

in

v.

sand

the

occurrence,

the

that

that

of

subjective
understanding
of
the
application

consistent

unfairness

of

Act,
Act

estopped

created

contends
and

the

evidence
to

to

hazard
at

such

not

the

on

no

was

that

that

belts

conveyor

piece

a

so

that

safety
reasonably

a

of

present

sand,

mandatory
so

The

to

not

including
A

NLRB

glasses
particles

Respondent

tered

the

the
The

Furthermore,

Respondent

existed

of

a

of

for

hazards

failed

torn

Secretary

that

argues

requires
particularity

not

was

potential

the

preponderance

a

violated."
hazard

citation.

Secretary
of

existed

inspector

preponderance
impact-resistant

of

belt

also

Respondent
required

by

torn

a

the

pieces

prove

been

the

Act

hearing.

of
employees.
by the
alleged
action
whipping

eyes

snapped

that

their

procedures

that

argues

the

with

provision

possible
Secretary

the
and

in

the

at

have

of

nature

the

the

to

every

that

the
of

describe

to

hazards

discovery

prove

Respondent
derance

the

included

not

through

try

list
find

I

shall

reference

alleged

inspector

hearing

were

and
a

that

104(a)

only

requires
Section

order

or

does

Act

particularity.
be
in
writing
including

"shall

citation
of

The

rejected.

is

described

first

the

applies

also

result

doing

necessarily

must

imposi-

the

in

Brennan

v.

OSHRC,

•,{arshall,

585

554

F.2d

1006,

(1977).

In

Shore,
U.S.

836

F.2d

1327,

the

Among
is

the

which
what

purport
they

"because

we

of

and

conduct,

intelligence
so
prohibited,

is

of

City
33

he

Rockford,

408

U.S.

222

(1972).

to

Amendment

rights

if

its

framed

as

to

those

whose

ities,

F.2d

585

applied"
United

1980);
and

must

•le

hazard

the

The

cited

the

vented
eye

be

Section

Regulations,
"where

required

v.

First

of

fundaEven

context.

such

390

Johnson,

be

could

cause

injury

of

which

was

with

and
Health
Safety
1910.133(a)(i)
that
provides
there

is

a

by

worn

nor

contrasted

U.S.

that

requires

devices"

reasonable
Section
"where

the

625

a

Corp.,
in

words

611,

616

(1968)).

"safety
glasses,
in
an
employees
to
unprotected
have

courts

promulgated

by
rule,

similar

OSHA's

protective
probability
1910.133(a)(i)
machines

or

eye

and

of

this

the

standard
have

courts

its

was

to

prevent

eye

29,
equipment

Code

Title
face

that

present

can

be

be
pre-

that

requires
the

of

shall

hazard

of
combination
or
a
radiation,
injurious
liquids,
adethat
these
hazards."
Subsection
(a)(2)
requires
provide
eye
protectors
for
hazards
which
the
were
designed.
protection
they
quate
against
particular
that
and
Subsection
further
(a)(b)
"design,
construction,
testing,
requires
the
of
the
of
devices
for
standards
use
and
face
meet
protection"
eye
Face
Standard
and
Educational
•nerican
National
for
Eye and
Occupational
Z87-I
1968
(ANSI).
Protection,
of

a

rulemaking
by
promulgated

under

injury
specifically

operations

shields

"where

plant

•ether

(OS•)
regulations,

Administration
of

(1963))
under-

face

or
a

Cir.

33

eyes."

However,

which

common

of

decided

MSHA

29,

of

goggles
area

(6th

U.S.

due

which

to

732

726,

reach

i/

a

F.2d

of

principles
conduct

its

process,

due

the
372

Products

Dairy

of

light

OSHRC,

v.

the

satisfies

"in

"delineat[ing]

of

equipment."
be
provided
protection
flying
objects,
glare,
by

that

standard

Co.

National

standard,

Occupational

Federal

of

area

requirement

examined

Welding

requirements

can

injuries.

be

Commission

this
notice

authority,

v.

which

Neither

i/

Grayned
2294,
2298,
with
special

applies

to

safety

a

standard

cited

the

to

S.Ct.

the

process

limited

must

v.

test

suitable
exists

meets

whether

(Cameron

other

a

activities

States

meet

standing"

or

provide

of
person
know
what

commercial
activeconomic
or
purely
be
must
so
can
engender
penalties,
to
constitutionally
warning
adequate
are
governed.

governs

regulation
(Ray Evers

the

is

due

hardly

violation

determining

process,

the

lawful

the

1335-1336.

at

In

it

is
which

regulation

but

,

fairness

mental

92

104,
108,
The
principle
in
regulate

which

statutes

between

give
opportunity

accordingly."

act

may

steer

laws

reasonable

a

that

Ed.2d

L.

force

to

that

insist

we

ordinary

In

free

is

man

clause

process

and

regulations
an
adequate
give
warning
our
jurisprudence,

must

forbid.

that

assume

due

the

statutes

conduct

to
govern
command
or

unlawful

of

myriad
applications
that
principle

fundamental

considered
and

several

purpose

cited

"wherever

equipment

*

conditions

ous

safety

OSHA

the

to

*

standards

that

by

requiring

standard

it

is

*."

_2/

the

"where

or
necessary"
In
considering

similar

are

there

language,

in

of

use

is

personal
an

scope,

protective
hazard-

to

exposure

these

general
personal
protection
a
of
the
circuit
standards,
courts
have
majority
an
applied
objective
"reasonableness"
test
of
whether
a
familiar
with
reasonably
prudent
person
the
circumstances
of
the
would
have
industry
the
hazard.
protected
against
Div.
v.
Cape & Vineyard
1152
Cir.
1148,
&merican
(ist
OSHRC, 512 F.2d
1975);
Inc.
v.
of
Airlines,
578
F.2d
Secretary
Labor,
38, 41 (2nd Cir.
1978);
Co.
v.
1079
Voegeie
Cir.
OSHRC, 625 F.2d
Bristol
1075,
(3rd
Steel
&
1980);
Iron
Inc.
v.
601
F.2d
723
Works,
Cir.
OSHRC,
(4th
717,
1979);
Ray Evers
Co.
v.
625
F.2d
at
Welding
OSHRC,
Arkansas-Best
supra,
731-732;
Freig•nt
Inc.
v.
529
F.2d
655
Systems,
Cir.
OSHRC,
(Sth
Brennan
649,
Smokev.
1976);
530
F.2d
845
Cir.
Craft,
Inc.,
The
843,
(9th
First
Circuit
1976).
explained
that
of
the
existence
of
hazardous
"knowledge
a
situation
must
be
determined
in
of
the
common
of
an
llgnt
but
c,lat
experience
ene
extent
of
industry,
to

take

against

a

safety
expert
(Ist
Cir.\,1979).

would

take."

General

precautions

Fifth

The

the

to

Circuit,

custom

and

497

safety

"affords

a

standard

U.S.

B

&

B

Insulation,

Inc.

v.

citation

for

failure

a

the

Fifth

Circuit

held

have

required

the

the

company

did

have

evidence

Section

1910.132(a)

protective

equl•nent
or

*

a

of

*

environment

that

through
requires

tions

where

there

wearing
is

*

an

exposure

upon
evidence

1364,

•s

Section

hazardous

712

that

only

safety

belts

the

Secretary
said

court

29,

1926.28(a)
protective
conditions

iaaccur-

employed
by
the
industry.

Code

of

Federal

the

use

of

hazards
of

capable
is

equipment
*

*

*."

pro-

injury

standard
in

all

the

personal
or

causing

general

a

Labor

the

industry
was

of

reason

one

of
that

that

requires

manner

would

that

people
in
people

the

Title

a

and

1978),

that

of

by

belt,

circumstances

opinion

•ecessary

appropriate

found

court

v.

Cir.
(Sth
safety
employer

a

circumstances

The

that

in

wear

conclusion

of

Inc.

general
it
as
long
of
common
light
v.
Petrillo,

industry

the

standard

standard

1372

to

and

regulations,

to

in

States

testified

under

encountered
of

conduct
United

Commission's
the

contact."

physical
"the

*

the

Ibid.

belts

OSHA's

that

circumstances

Review

genecal
industry
"•erever
it

said

The

it.

custom.

safety
based
entirely
the
considering

was

is

the

of

Lines,

the

officer,

industry
Health

use

without

Regulations,
*

the
it

Government

cesses

and

Safety

required
because

2/

of

Truck

F.2d

under

of

under

reasonableness

as

464

453,

the

insulation
belts

F.2d

Ryder

employee

an

reasonable

compliance

OSHA

583

of

conscientious

a

599

vague

233;

at

OSHRC,

required

was

linked

F.2d

safety

appropriate

no

Occupational
custom

a

of

which

OSHRC,

v.

proscribed

497

that
use

that

the

been

introduced

ate

all

witnesses,

would

the

4

involved

Ii

has

of

warning

that

is

In
iadustry.
the
court
1974),
unconstitutionally

practices."
(1947).

not

of

not

and

i,

In

which

Cir.
was

reasonable

understanding
332

(5th

230

hazard

Dynamics

coutrast,
of
the

practice

F.2d

Brennan,
industry

by

known

opera-

1370.

also,

Cotter

Plant

Division,

583

F.2d

(5th

Cir.

1979);

1363

(5th

Cir.

1979).

The

other

circuits

have

standard

to

at

reasonableness
as

an

the

industry

entire

General
F.2d

625

supra,

should

customs
instances

where

equipment

for

In

MSHA

(October

i0,

civil

a

be

a

whole

1980),
penalty

to

Fourth

Circuit

in

and

Fifth

230

(5th

the

•le
that

"the

exactitude

in

test,

namely,

nized

[the

reasonably

due

operator

is

C.F.R.

§ 56-9.2)

by

F.2d

similar

was

the

(4th

8

Cir.

F.2d

497

Brennan,

v.

at

bar

not

a

"is

seeking

*

in

as

at
supra
defined
been

objective

would

person
p.

recog-

i0.

The

a

"consci-

as

which

hazards

all

Dynamics

standards,

and

external

prevent

General

those

of

case
an

*

conceivable
myriad
of
be
capable

the

reasonable

to

*

•[th

draffted

would

the

in

as

recently

the

this

as

process

case,

liable

of

wording

inspector's

the
in

this
the

that

that

Inc.

charge
mandatory

a

considered
503

OSHRC,
Lines,

of

which

McLean,

has

(30

standards

2910

Decs.

OSHRC,

v.

are

F.2d

599

1979).

Cir.

of

unreasonable

by

saffety
e•pert
foreseeable."

conclude

or

and

hazard]."

person"

(Ist

requirements

whether

standard

732.

at

vagueness
of

a

alleged

been

light

in

standard

cited

"reasonable
entious

the

have

to

appears

possible

FMSHRC

violation

herein

cited

just

2

F.2d

625

be

may

safety

providing

considered

and

there

said:

standard

Also

79-I0-M,

safety

Melick

could

supra,

equipment
Company v.
Truck
Ryder

in

arise

negligent

Co.,

standards

"because

Welding,

an

the

protective
Trucking

as

which

inherent

hold

involving
that

found

Judge

injury."

conclude

proceeding

Circuit

situations

I

Judge

Melick

McLean

causing

453

YORK

regulatory
regulation

much

Evers

Ray

safety
Voegele

accord,
industry
in

allow

"would

reasonableness

been

has

because,

standard

that

the

limiting

industry

inadequate
464,

at

said

Co.,

1974).

Cir.

of

Cement

personal

similar

1974),

Circuit

Commission

He

the

599

Sixth

industry

Atlantic

v.

F.2d

supra,

employees."

standard.

safety

The

determinative

not

its

practice
industry
practice
by maintaining

F.2d

590

OSHRC,

in

the

of

911

F.2d

Circuit

Fifth

the

and

liability

iO78.

at

&

followed
custom

Dynamics,

598
OSHRC,
Inc.
v.
Root,

v.

Brown

an

avoid

to

Company

&

not

the

explained,

Circuit

First

training."

in

See
Power

and
for

the

prescribed
application
that

it

failing

standard

cited
ia

abo•e

of

the

standard

would
to

be

provide

cases.
was

denial

a

of

the

safety

facts

of

notice

the

meets

the

I

However,
arbitrary

and

process

to

due

required

glasses

inspector.

standard
nor
of
the
wording
conclude
to
a
cause
reasonably
operator
prudent
lenses
to
unshielded
protect
impact-resistant
The
blown
sand
or
glasses
particles.
gravel
with
the
standard,
as
co•pliance
accepted
by him
from
sand
and
wind-blown
and
entering
gravel
of
the
sides
and
Wrap-around
bottom,
glasses.
Neither

the

718

the

that
the
worn

the

this

the

by

required

law
from

eyes

the

falling

or

and

would

not

inspector,
prevent

eyes

from

around

goggles,

would

case

safety

wind-

falling
the

glasses

top,
with

peripheral
the
dangers
these

shields,
of

was

the

by

or

in

put

face

shields

and

wind-blown

or

falling

either

issue

he

citation

would

by

issued.

the

The

shields
peripheral
blo•
sand
a•id
gravel
particles.
such
he
had
to
weacing
glasses,
several
The

evidenceshows
the

kind

to

with

"goggles,

held

be

In

such

goggles,
and
gravel

or

as

those

such

as

face

shields

and

Citation

is

the

on

braking

none

the

operator

wearing

•[nd-

inspector

from

of

safety
from

eyes

his

was
on

eyes

Secretary

leaks

in

have

known

tor

of

fLtt•ags

rear

brake.

Tlle

Secretary

Respondent
evidence,

he

argues
that

the

and

Government

to

safety

different

kind

of

wrap-around
in

put

sand

against

protect

the

by

issue

the

the

loader,

inspection
to

a

that

the

there

was

§

a

any

714

the

that

the

equipment

there

was

a

the
evidence

of

in

the

uechanic

was

an

the

near

slack

there

these

leaks

knew

had

he

inspecobserved

the

The

should

or

The

told

leak.

air

in

loader.

shows

that

operation.
that
air,

escaping

leak

front-end

Respondent

machine

operator

inspector

adjuster

on

the

$64.
failed

Secretary
air

provides:

before

loader;

and

leak

of

penalty

56.9-2,

of

of

there

be

has

which

whether

is

that

a•id

Secretary

corrected

front-end

sound

that

the

1979,

operation

loader;
the
placing

the

proposes

safe

the

hear

assumed

be

charge

of

could

7,

preponderance

a

before

oa

the

what

the

been

not

C.F.R.

shall

the

system
of

30

this

to

that

operation

hose

of

safety
as

braking

he

August

on

violation

affected

that

that

the

issued
a

issue

test[fLed

left

impact-resistant

has

say

Respondent
even
though

standard

provide

plant

not

Brakes

leaks

also

the
for

a

is

The

here.

argues

morning
observed

devLces

peripheral
shields,
be
to
required

should

Respondent's

does

unsuitable

of

"suita-

Respondent
devices,

and

wording

be

to

and

protective

Whether

with

shown

devices."

inspector.

and

affectLag

of

the

by

of

to

without

inspector

unreasonable
to

glasses

been

not

glasses"

the

and

failing

decided

the

the

under

could

with

safe

the

that,

lenses

protective

provide

arbitrary

citation

the

to

suitable.

glasses"

"safety

the

"safety

be

for

not

system

The

affected

loose

is

worn

basic

The

suitable

to

at

defects

used."

other

failing

safety

Respo,•dent

"Eq,lip,uent

types

them

Concerning

Based

charged

other

for

violation

particles

Government

provide
to
provide
or

it

case,

safety

a

have

by

conclude

I

this

protection,

of

find

summary,

charge
glasses

were

shields

may

of

glasses
assumed

hazard

to

liable

inspector

facts

on

sand

construed
inspector
i.e.,
impact-resistant

such

the

failure

a

face

or

cannot

the

that

person's
the
though
a

of

but
with

believed
protect

from

protection

discussion

even
However,
wipe
particles

the

However,

alleges

citation

is

particles,

inspector
would

wearing,

was

against
failing

protect

charged

not

that
he

shields.

peripheral
ble"

The

better

gravel

occasions.

include

an

offered

and

inspector's

without

glasses

have

sand

leak

to

that

prove,

affected

by
the

a

preponderance

safety

of

the

loader.

Respondent

contends

did

amount

Spruell

tor

pressure
the
loader's

not

did

gauge

testified

that

satisfactorily.

ate

and

shop

discovered

loader

required

the

by

swerving
Goffinet,

Mr.
to

all

would

the
it

would

chambers

would

not

affect

or

swerve

if

To

prove

presence

hissing

the

ones,

phragm
it

the

could

its

lash
another

or

morning
of

which

I

hear
suspect

the

he

observed

found

by

conclude

and

that

it

the

was

to

as

of

however,

the

machine

the

Secretary

must

machine.

I

the

when

to

machine

that

all

an

were

system

leaks,

as

so

small

even

dia-

damaged

A

if

left

unattended,

braking

emergency
activated

unexpectedly,

the

to

operator

wheel,

cause

accident

an

the

that

operation.

in

cause

show
find

brakes

braking

the

cause

one

one

emergency.

steering

the

20

the
air

he

mechanic

feet

from

presence

of

an

gauge
loose

hose

pressure
found

immediately,
fittings

warned

whip-

a

involving

two

and

the

loader

dropped

that

that
it

slightly

audible
I

a

hiss-

a

in

was

braking

the

in

the

when

the

under

connections

the

of

operator
while

leak

air

tightened.

were

the

testified

Spruell

Inspector
about

the
that

loose

an

two
in

in

brakes;
cause

the

could

the

defect
hole

a

emer-

object.

to

repaired

were

so

that
a

that

service

the

or

evenly
the

said
that

said

system

dash

jerking

p.s.i.,

He

cause

seconds

the

inspection,

that

after

3

on

cylinders.

and

and

loader

distributed

70

loader's

braking

operator

could
him

testified

even

sound

he

applied

what

the

brake

caused
He

to

of

the

which

were

tinued

ing

or

the

loader,
as

vehicle,

one

system.

himself
the

in

ing
sound,
operation,

vehicle

distract

On

brakes

emergency
2 to
in

the
as

discovered.

the

a
rupturing
diaphragm.
operation
and,
during

rupture

or

the

the

oper-

mechanic,

seconds

required

noise

worse

of

that

were

and

suddenly

it

operation,

was

in

placing

manual

the

of

not

in

avoid

If

injure

or

before

grow
the

and

person,

leak

one

to

at

testified

would

two

them

found

also

other

safety

and

examined

wheels.

standard,

condition

service

activate.

injury,

cited

than

more

and

of
Rhodes

below

the

Inspecair

operation
Superintendent

and

pressure

He

the

the

master

dropped

applied

investigation

of

air

system

that

hazards

by

that

placed
problems

brake

The

of

heard

air

in

alleged

the

to
immediately
a
hissing

forward

being
no

pressure

the

produce

stopping

He

record.

level

affected

abnormal

an

gradually
to

lurch

of
that

lasting

sealed
would

system

that,

if

brakes

cylinder

that
the

emergency
brakes
were

manufacturer's
be

the

the

defects.

the

by

leak.

all
the
on
evenly
of
each
operated
independently
the
of
the
other.
reliability
slow
the
of
might
operation

indicated
applied
to
further
require
•e

that

and

range
air

activate

defect

a

tested

and

that

the

before

operator

violation

a

of

audible

and

escaping
Respondent
argues

brake

other

or

of

unsafe

by

rules,

testified

brake

jerk

by

the

the

the

unsupported

systems
affect

not

removed
holes

sound

he

contends

chambers

system

braking

He

also
were

six

gency

citation

company's

Respondent
and

the

no

examined

was

defect.

affected

not

was

after

the

a

into

drop

not

brakes

that
to

hissing

con-

credit

this

testimony

vehicle

with

the

heard.

a

inspector,

violation
and

to

that

the

operate
under

the

mandatory

safety

hissstandard

Respondent

had

sound

before

ing

the

ering
at

the

of

independent
risk

that
the

the

I

vehicle

the

machine

that

that

emergency
violation

the

i.

The
of

2.

alleged

Petitioner

did

not

Citation

No.

367445.

in

3.
on

the

No.

367447.

for

a

left
Based

for

stopping
braking
involved

the

•

hissconsid-

vehicle

provided
system
low
of
gravity

a

the

upon

of

30
of

his

of

front-end

as

a

air

an

Citation

in

civil

assessed

is

subject

repair

to

alleged
assessing

Respondent

standard,

violation

as

for

criteria

statutory

a

failing

by
loader

and

parties

proving

§ 56.9-2

C.F.R.

the

over

burden

the

mandatory

a

LAW

OF

jurisdiction

meet

brake

rear

violation

$64.00

has

violated

Respondent

leak

the

However,

operator.

undersigned
Judge
above
proceeding.

the

of

source

service.

in

the

CONCLUSIONS

matter

the

correct

put

effectively

were

and
find

and

be

to

brakes

inspection

protection,

to

examine,

the

allowing

evidence

time

detect,

to

duty

a

a

penalty
of
penalty

violation.

this

ORDER

WHEREFORE

IT

of

Labor

Secretary
within

30

IS

from

days

that

ORDERED

Evansville

above-assessed

the
the

date

of

Materials,
penalty,

civil
this

in

Inc.

shall

pay

the

the

amount

of

$64.00,

decision.

FAUVER,

WILLIAM

JUDGE'

Distribution:

Rafael

Alvarez,

Department

P.O.

Esq.,

Trial

Labor,

230

(Certified

60604

Philip

of

E.

Balcomb,

Box

248,

Office

Attorney,
S.

Dearborn

Street,

of

the
8

Solicitor,
Floor,
Chicago,

Mail)
Esq.,
Tell

City,

Manager,
IN

47586

Evansville

(Certified

Materials,
Mail)

Inc.,

U.S.
IL

FEDERAL

MINE

AND

SAFETY

333W.

HEALTH
AVENUE

COLFAX
COLORADO

DENVER,

COMMISSION

REVIEW

80•04

)
SECRETARY

ADMINISTRATION

HEALTH

(MSHA),

)

it

)
)
)

Pet

ion

er,

v.

1881

z 6

)

AND

SAFETY

MINE

LABOR,

OF

CIVIL

PENALTY

DOCKET

NO.

PROCEEDING
80-110-M

WEST

)
T

&

SAND

W

GRAVEL

AND

MSHA

)

COMPANY,

05-02331-05002

NO.

CASE

)
Pit

Chatfield

Mine:

)
)

Respondent.

DECISION

APPEARANCES

:

Robert

J.

Lesnick,

Office

of

the

United

States
Street

M.

Madsen,

South

5601

Esq.

Broadway

80121
the

For

This
Health
out

of

of

an

inspected

the

Act.

Four

A

hearing

closing

arguments.

moved

alleged

constituted

"illumination

a

sufficient

all

surface

loading

and

on

the

on

December

briefs,

petitioner
citation

The

near

to

of

violation

in

1980,
instead

withdraw

one

3(•

arose

After

Colorado.

electing

the

that

9,

and

Safety
"Act"],

of
of

C.F.R.

56.17-1.

§

of

I03(•)

tried.•/
Denver,

to

absence

of

the

rest

on

citations,

lights

the

on

That

requires:

standard

To

held

was

the

two
representatives
machine,
to
1979,
17,
pursuant
July
three
were
actually
only

on

submitted

Mine

Federal

the

[hereinafter
Chatfield,

seq.

mine

issued;

merits

hearing,

the

machine

loading

machine

party

333028.

et

801,

loading

a

were

the

on

Neither

n--umber

about

citations

Colorado.

§

respondent's

at

of

provisions

the

U.S.C.

inspection
a
complaint

petitioner

1--7 During

under
30

1977,

Respondent

Carlson

A.

heard

case,

Act

receiving
the

John

Judge

200

Suite

-

Colorado

Littleton,

Before:

Petitioner

the

For

2106
64106

Missouri

City,

Gerald

Suite

-

Labor

of

oepartment

Walnut

911
Kansas

Esq.

Solicitor

support
vehicle

unopposed

was

by

structures,

sites,

dumping
motion,

his

to

used

respondent

conditions
safe
working
provide
stairways,
walkways,
paths,
work

and

petitioner

indicated

conditions

under
and

that

granted

717

in

and

panels,

areas.

requiring

subsequently

...

switch

there

lights.
by this

no

was

The

Judge

that

evidence

motion

(Tr.

was

36).

Jurisdiction:

I.

the

Before

reaching

Commerce

Clause

by

Respondent,
and/or

Act.

the

At

its

hearing,

Colorado;
respondent's
the
products

customers

including

are

the

hearing,
in
that,
(Tr.
91).

At

suggested
commerce

virtually
operation

operator

sells

Marshall

sufficient

basis

its

argument
2.

Citation

418

This

§

C.F.R.

F.

the

Interior,

Supp.

693

-

is

alleges

be

56.9-2.

its

That

it

created•/

used

after

the

existence

(Tr.

17,

defect

the

of
It

was

discovered

Marti,

one

"defects"

diesel

fuel

of

testimony
onto

manifold)

the

Respondent's
requires
only

that

used.

counsel

Indeed
more

real

issue

fective
this

than

under
while

the

end

violated

30

loaders

is

of

its

mine

premises:

by

loader.

indicates

left-bank

the

a

Cater-

a

Hough

inspectors,

the

the

machine

and

the

concern

(from
(caused

and

the

61).•/
on

case

used.

defect
that

Harvester)

this

exhaust

and

shall

safety
machinery

in

cracks

that

injector
first

the

elbow

manifold).

exhaust

•/

front

a

equipment
however,

an

(Tr.

end

in

of

the

International

by

Lyle

Mr.

leakage

were

allowing
the
cab,

argues,

The

done

a

of

Department

affecting

both

22).

the

left

(E.D.

inter-

Respondent's

before

corrected

•/

the

affects

States

into

defects

Equipment

front

cylinder

state

1976).
rejected.

by

leaked

2/
maintained
two
Respondent
loader
(manufactured
Hough 90-E
966
loader.
The
citations
pillar

of

un-

provides:

standard

admits

Respondent
not

of

or

801
800,
1979).
provides

Tenn.

Pa.

therefore

fumes

be

was

out

United

(M.D.

respondent,

that

while

used

Mandatory.

hazards

operation

is

commerce

unsafe

F.Supp.
D.

a

mine

a

Leaks

Fume

-

463

bring

where

Even

by

mining

the

position
to

Violation

citation
to

that

jurisdiction

566091

a.

loader2/

equipment

interstate
the

sufficient

(E.

mine,

thequestion,

on

supports

4
Supp.
produced

cases

71).

13).

affect

caused

Bosack,

v.

F.

most

(Tr.

did

is

products

respondent's

ruling

not

the

of

(Tr.

at

authority

its

in

Illinois

formally
operation

activities

478

of

Secretary

Shingara,
contesting

that

used
in

do
to

99%

that

delivered

con•erce

mining

of

Of

none

and

than

machinery

Marshall

v.

that

Denver;

manufactured

products

Kilgore,
of
purchase
for
a
finding

commerce.

subject

jurisdiction.
inter-state
intra-state,

v.

the

the

was

operations

not

Commission's

conditions.

1978);
Specifically,

that

and

therefore

rather

under

be-•ddressed.

Colorado;

South

inter-state

the

of

in

Commission

must

testim6ny

customers

on

disruption

Pa.

state

effect

all

by
working

Interior

The

is

outside

without
Judge,
view,
respondent's
of
weight
judicial

within

the

healthy

this
his

any

mining
affected

located

are

it

made

are

this

"products

its

that

adduced

sales

no

of

Constitution

that

and

respondent

that

jurisdiction

States

contends

picked
by
up
testimony,
however,
the
machinery
cited,,

was

that

the

United

commerce",

leave

There

the

answer,

affect

enter

merits,

the

of

confuses

argument

known

asserted

in

the

correct

30

being

the

machines,

defect

C.F.R.

§

used;

the

issue

by the
closing
it

once

56-9-2
evidence

is

to

argument

that

was

whether
has

issue.

718

implying

by
operator

brought
the

been

to

evaluated

standard

defective,
T

machine

the

that

be

&

W

its

could

not

be

not

have

attention.
was

with

in

The
fact

reference

deto

concerning

testimony

The

that

is

clear

is

on

loader

used

was

evidence,

17,

July

inspection

defects

its

before

the

that

testified

of

the

complained
employee
83).
(Tr.

refused

complaint

if

inference

is

fumes;
to

the

at

a

was

Respondent's

Stoops,

been

before

not

used

time,

however,

because

for

the

Stoops
(Tr.

the

90-E

loader,

Stoops

told

Inspector

85).

This

that

the

Hough
key,

ignition
The
the

b.

of

the

been

of

the

is

566091

evidence

Mr.

Marti's

could

be

indicate

during

Marti
used

as

repair,
Hough

the

use

earlier

a

loader

statements

just

with

(Tr.

25-26).

that

a

while

uncorrected

the

refused,

been

started

service

of

does

remained

loader

Hough

with

accessible,
out
tagged

that

needed

to

a

This

affecting

defect
loader

the

an

in

was

affirmed.

therefore

Penalty:

an

prior

average

abating

the

evidence

The

Inspector
and

testified

operate

the

if

he

The

potential

of

himself,

operator
truck

driver

break

out,
evidence

These
5/
penalty

established.

of

in

be
The

suggests
the

$180.00

is

factors

were

to

of
some

loader

machine
the

hazard

fire

a

in

the

together,

to

a

17,

of
I

18).

find

If

possibly
fire

a

that

the

17,

were

significant.

be

would

(Tr.

loader

The

respondent's

repair

fire.

engine
fire;

of

foreman

22).

proposed

penalty

appropriate.

taken

with

into
citation

account

333026,

in

determining
where

violation

an

the

from

down

an

moderate.

risk

become

to

step
of

operator
since

need

and

risk

in

however,the

matter,

was

exposed
(Tr.
exposed

to
injury
negligence
was

factors

the

increase

faith

hazard.

driver

the

practical

a

operator,

good

moderate

a

cause

be

been

have

that

these

did

demonstrated

created

As

stop

to

fumes

would

probability

connection

able

course,

also

all

unsafely.

small

relatively

a

could

fumes

the

exposure

also

would
the

acknowledged
Considering

loader

probably
dizzy.
employee

felt

cab

that

leaks

fume

the

that

shows

Marti

would

operator

amount

is
respondent
and
violations,
(Tr.
4, 5).5/

that
stipulated
of
history
violations
promptly

parties

The

The

not

Cat

such

and

machine

complainant)

consiStent

easily

had

and

Citation

dizzy

is
was

preponderance

safety

use.

has

loader

the

for

had

loader

90-E

headaches

occasion.
Marti

prior

a

Inspector

when
the

than

gave

the

that

him

basis

no

of

Hough

that

loader;
(other

people
testimony

stated

Stoops

had
on

employee

an

fumes

the

Mr.
the

that

966

Cat

asked

had

that

conference

post-inspection

back-up

evidence

is

used

loader

the

there

the

Willie.

•

Further,

that

substantial

is

foreman,

would
have
employee
vehicle
the
had
not
he
operated
further
by testimony
supported
to
asked
use
been
had
by Stoops
him
headaches
23).
(Tr.
gave

it

that

the

to

theHough

same

machine

the

use

Obviously,

complainant
claiming

had

loader

All

contradictory.
prior
directly,sh•ws

service

there
that

suggests

corrected.

Hough

was

of

condition;

strongly

were

use

out

evidence

No

defective

a

which

however,

taken

79).

(Tr.

1979
in

while

been

had

of

issue

the

loader

the

appropriate
was

also

a

to

Citation

3.

This

333026

citation

because

tile

charges

Mandatory.
warning
view

Heavy

that

the

to

which

is

audible

observer

to

signal

when

it

the

operator

were

not

used

to

the

was

relative

estimated

to

weigh
safety

significant

The

citation

which

concerns

Petitioner's

penalty

small

• / 9-87
.

lqlat

between

issue

The

actually

operator

conduct
for

which

pleading

does

violation
the

however,

the

procedural
that
requires

rules
rule

set

29

at

C.F.R.

is

alarm

of

§

32).

56.9-5,

computerized
of

30

C.F.R.

citation.

computerized

the

Section

operates

104(h)

citation.

of

as

the

a

Act

neither

However,

modification.

(published
be

a

vehicle.

a

penalty,

for

was

(Tr.

C.F.R.

whether

a

this

on

loader

presented

30

the

for

order

or

alarm

an

only

In

type.

thus

of

thus

shows

The

condition

procedures
§ 2700.22

citation

modified

a

out

its

and

modify

expressly

counsel
respondent's
by the
proposal
of
the
citation.
original
to
Secretary
power
modify

Commission

and

a
incorporates
violation
alleged

an

by

proper

nor

a

than

indicates

equipment"
however,
back-up

a

and

31).

without

reverse

alleged
rather

not

tons

twenty
in

incorporated

sheet,

Act

unimportant.

penalty,

sheet

modification
implicitly
gives

of

is

moving

an

a

rear,

(Tr.

of

absence

and

when

machines

the

fifteen

hazard

raised

the

evidence,

machine

by

of

or

have

not

up

"heavy

not

other

to

presented

proposal

assessment

compared

reverse

level

the

to

backed

was

was

did

view

Respondent's

itself

The

loader

obstructed

noise

loader

Hough

machine

audible

an

up.

obstructed

an

with

automatic

an

surrounding
back

to

the

provided
has
equipment

haveeither

the

had

the

size

assessment

§ 56.9-87.

The

March

I0,

1978)

within

challenged

15

days

receipt.
The

reference

initial
the

a
charge
provided
at
hearing
proposal

§ 56.9-87.

the

at

violation

for

penalty

to

hearing.
of

to

The

30

C.F.R.

notice

of

prejudice

no

is

of

would

conform

to

additional
reflect

56.9-87

Rule

15(b)

pleadings

proved

an

Federal

however,

inapposite;

§

amendment

C.F.R.

as

pleading.

amend

30

to

described

accurately

and

5

alarm.

be

such

the

safe

standard.

hazard

the

is

when

that

argues
the

loader

shall

that

that

the

of

§

C.F.R.

back-up

a

shall
of

above

indicates

evidence

Respondent
subject

determining

only

30

lacked

operator

equipment

the

rear,

machine,

interim

mine

equipment

the

alarm:

not

that

When

signal

observers

the

its

at

mobile

duty

devices.

The
undisputed
back-up
alarm,

6/

violated

respondent

used

provides:

standard

was

that

loader

Hough

Alarm:

Back-up

--

therefore

on
a

Civil

the

pleading
Procedure

allow

this

the

facts

Judge,
pleaded

computerized

sheet

since

it

accompanies

15(a)

is

therefore

his

on

in

own

petitioner's

motion,

is

not
the

to

proposal
in
the
citation
in
alleged
essence
§ 56.9-87;
the
assessment
sheet
computerized
that
and
charge;
respondent's
pleadings
proof
from
the
The
resulting
discrepancy.
amended
to
a
violation
of
30
C.F.R.
charge
facts

few

Although

hazard

the

of

(Tr.

exposed
Accordingly,

33).

the

333027

proposed

penalty

of

30

C.F.R.

on

the

citation

charges

56.4-23,

which

provides:

with

respondent

Firefighting

violation

a

provided

is

which

equipment

be
shall
strategically
property
marked,
accessible,
plainly
readily
and
periodically.
inspected
maintained,
of
such
be
shall
inspections.
kept

located,

mine

citation

loader;

inspector

that

out,

must

have

been

placed

on

Hough

loader

argues,

generally,
be

17,

of

advisory

the

1979,

made

and

mandatory

56.4-27
is

equipment

fire

operator.

the

That

at

§

Both

56.4-23.

it

that

indicates

mandatory

language

the

§

of

interpretation

respondent's

intended

was

accessible

fill

to

and

history

56.

4-23.

a

and
left

gap

§ 56.4-27
citation

of
The

the

to

equipment

mobile

addresses

with

provided

be

such

specifically

standard

mobile

self-propelled

Whenever

equipmentshall
readily
extinguisher

suitable

made

was

by

standard

the

support
is

therefore

vacated.
OF

CONCLUSIONS

The

in

discussed

I.

subject

the

of

conclusions

following

body

Respondent's
to
regulation

of

the

mining
under

law

LAW

based

are

upon

of

findings

fact

decision.
affect

activities
the

On

follows:

as

Mandatory.
used,

equipment

a

be

to

interpretation

renumbered

to

specific

does
which
standard,
mandatory
with
fire
extinguishers,
equipped
correct.
in
§ 56.4-23
is,
my opinion,
was
revised,
56.4-39
C.F.R.
at
30
standard

vehicles

require

fire

with

equipped

be

56.4-23

§

at

a
impose
extinguishers.

not

does

and

standard

the

Hough
to

is

extinguisher

fire

a

that

Records

promulgated

recently

a

lacked

however,

properly

the
on
extinguisher
an
extinguisher,
vehicle
the
according

fire

no

broken

vehicles

of

view

was

have

premises

that

specifically
respondent's
August

the

there
could

Respondent
mine

to

requirement
In

engine
located",
52).
(Tr.

fire

fact

The

undisputed.
applies

because

an

"strategically
the

issued

was

since

of

Extinguisher:

Fire

--

This

The

gravity

the

hazard,

the

to

affirmed.

be

Citation

4.

potentially

were

severe

was

should

$180.00

§

employees

Act.

721

commerce

and

are

therefore

2.

Respondent

566091,
3.

proposed

for

4.

of

30

C.F.R.

by

Rule

violate

not

of

30

is

C.F.R.

alleged

as

citation

$180.00,

in

alleged
appropriate.
as

is

§ 56.9-87

Federal

petitioner,
did

Respondent

§ 56.9-2

$180.00

incorporated
to

pursuant

proposed

citation

C.F.R.

which

penalty,

amended

was

penalty

30

penalty

Violated

Respondent

proposal
which

violated

t•e

and

petitioner's
and
reference

by

333026

Civil

citation

by

!5(b).

Procedure

The

appropriate.
§ 56.4-23

in

charged

as

333027.

ORDER

Pursuant

the

to

made

in

the

penalty

proposals

are

vacated.

It

within

30

citations
made

is
o•

days

it

foregoing,

connectionwith

ORDERED

that

and

333026

566091

in

further
this

is

connection

ORDERED

with
that

Distribution:
J.

Lesnick,

of

the

United
911

Gerald
5601

Department
Street

City,

Kansas

M.
South

Little•on,

Esq.

Solicitor

States

Walnut

of

Suite

-

Missouri

Labor
2106

64106

Madsen,
Esq.
Broadway
-

Colorado

citations

respondent

penalty
proposals
and
affirmed,
333027

pay

Carlso•
n•A.

•dministrative

Robert

are

order.

/

Office

the

Suite

200

80121

722

Law

Judge

the

and
sum

of

that

333028

$360.00

SAFETY

MINE

FEDERAL

OFFICE

OF

ADMINISTRATIVE

2

SKYLINE,
5203

FALLS

OF

FLOOR

LEESBURG

PIKE

VIRGINIA

CHURCH,

COMMISSION

JUDGES

22041

'

|98t

2 7

LABOR,

Proceeding

Penalty

Civil

:

HEALTH

AND

SAFETY

MINE

LAW

10th

li•

SECRETARY

REVIEW

HEALTH

AND

(MSHA),

ADMINISTRATION

Petitioner

:

Docket

:

A.O.

80-349-M

LAKE

No.

11-02666-05002

No.

Ve

A

SAND

AMERICAN

NORTH

&

COMPANY,

Pit

American

North

Mine:
GRAVEL

:

Corporation,
Respondent

:

DECISION

Steven

Appearances:

Walanka,

A.

U.S.

Department
Petitioner;
Charles
for

A

hearing

with

below

appears

This
of

ll0(a)
30

the

of

North

American

noise

levels

The

issue

cited

Mine

Sand

before

for

The

only
North

charged

The
the

966-C

Secretary
the

under

The

under

February

18,

is

Safety
proposal

proposal

Health
directed
for

Gravel

Company

health

standard

at

North

American

whether

is

if

so,

the

citation

before

me

American

as

1977,
the

against

excessive

allegedly

&

and,

section
of

Act

Safety

Mine

Labor,
of
provisions

and

30

appropriate

C.F.R.

§ 56.5-50.
the

violated

penalty

to

No.

363033,

violation.

noise

level

Caterpillar

in

this

case,

follows:

around

the

front-end

728

this

at

assessment

of

was

decision,

affirmed
for

operator

of

loader,

Serial

in

1981,

That

decision.

the
me

that

the

upon
the

by

Federal

regulation

assessed

Illinois,

changes,

me

filed

§ 820(a).

U.S.C.

bench

a

Administration,

Health

and

for

Sandalia,

on

case

issued

I

before

is

penalty

this

in

nonsubstantive

only

case

civil

Solicitor,

Illinois,

Melick

which

following

Missouri,

Jr.,

Barenfanger,
Respondent.

conducted

was

the

Chicago,

Labor,

W.

Judge

Before:

of

Office

Esq.,
of

be

St.

Louis,
which

time.

No.

766J1926,

the

permissible

limit

the

day shift,
or
engineering
used
to
being
tor's

noise

in

case

exposed

was

reduce

the

for

The

essential

and

I

the

credible.
completely
regular
at
the
inspection
the
inspector,
following
noise
checked
inspection,
the

the

Dupont

dosimeter

indeed,

therefrom
The

collar

the

tor

to

follow

test

are

out

at

the

his

undisputed,

the

cited

so

is

a

and
I

find

that

and,

norms

readings

dosimeter

the

to

told

the

The
the
in

operaof

results

dosimeter

read-

177

percent

excess

of

"unity"

was

there-

facie

prima

a

a

conducting

the

and

was

That

mine,

side.
the

period

Gravel

accepted
that

be
of

case

of

the

established.
The

had

evidence

history

a

rial

had

of

this

of

rubber

One

of

no

a

matting

come

under

these

was

I

appears

employee

to

of

period

ordinarily

find
that

a

the

neglecting
after
matting

material,

equipment

in

employee
circumstances,
time

when

in

place

I

form

to

a

result

as

for

or

when

that

of

was

replace

maintenance.

724

a

that

was

that
the

noise

matter

that
it

even

the

rubber

in

place,

in

thls

limits.

permissible
level

ear

note

of

was

the

indicate

considering
and

of
of

also

case

the

here

practice

this

an

replace

to

operator
the

customary

date

transmission.

failed
loader

the

consisting

the

over

The

in

mate-

On

equipment.

verylow
violation
to

that

from

within

was

exposure

also

that

evidence

issue

at

installed.

of

the

was

wear

medical

would

long

noise

rubber

protection
it

loader

sound-suppressant

been

maintenance.

is

exposure

front-end
and

apparently

operators

and
plugs
to
always

harm

the

loader

or

operator

over

the

problems

previously
a
test,
however,
piece
was
matting,
missing

personal

there

that

noise

following

muffs

any

shows
of

therefore

the

matting
wearing

It

low

procedures.
that
is,

exposure.

&

this

course

case.

within

work

and

the

in

this

operator

8-hour

regulation

in

to

loader

that

the

noise

permissible
fore

of

to

calibrated,

pinned

normal

in

Aubuchon

conservative

thereafter

front-end

end

the

on

undisputed

Sand

in

slightly

table
the

procedures

used

were

the

eliminate

batteries,

calibrated

inspector
of

the

in

fact

registering

was

obtained

the

opera-

of

American

customary

dosimeter

in

those
to

basically
Inspector
17, 1980,

North

not

were

loader

of

testimony
On April

1980,
Feasible

exposure.

order

is

17,

controls

within

of

cent

per

April

front-end

to

evidence

find

177
on

an
80-minute
administrative

in
56.5-50(a)
hearing
protection.

need

cleared

noise

for

exposure

Section

[sic]

to

for

negligence

the

direct

piece

of

Since

result

of

noise-suppresslng
the

mine

operator

case.
an

does

have

I

suppressed
due

its

to

The

installed.

the

amount

of
of

history

only

matting
was

of

I

have

noise

is

been

have

to

and

the

that

this

that

the

business

size

penalty

would

certainly

to

stay
I

and

one

of

partly

reasonable

day
it

just
reaching

a

nominal

in

only
is

the

as

was

certainly
affect

not

business.

this

consider

would

I

had

operator

in

circumstances,

penalty

a
same

available,
considered,

also

certainly

ability

within
the

always

course

the

that

abated
installed

was

penalty,

technical

a

nominal

excessive

violation

certainly

violations,

small,
operator's
Under

that

see

this

was

rubber
It

not

to

consider

condition

citation.

very
the

do

negligence.

The

time.

obligation

an

not

assess

violation

to

than

more

be

a

$5.
ORDER

North

The

alty

of

$5

American

within

30

days

Sand

&

Gravel

of

the

date

is

decision.

Distribution:

Walanka,
Esq.,
Floor,
Labor,
Eighth
Mail)
(Certified

Steven

Charles

W.

Company,
Sandalia,

Barenfanger,
Barenfanger,
IL

62471

of

Office

E.

230

Jr.,
Inc.,

(Certified

this

th

iStreet,Chicago,

North

President,
P.O.

ORDERED

to

pay

a

pen-

"Soiii•
•U.S.
•partmen
•rn

Dearh

South

hereby

Company
of

Box

Mail)

725

190,

American
1313

North

Sand
Sunset

of

IL

&

60604

Gravel

Drive,

FEDERAL

MINE

SAFETY
OFFICE

AND

HEALTH

OF

ADMINISTRATIVE

2

SKYLINE,
5203

FALLS

LAW

LEESBURG

MINE

OF

22041

188f

Civil

LABOR,

SAFETY

JUDGES

PIKE

VIRGINIA

2 7

SECRETARY

COMMISSION

FLOOR

lOth

CHURCH,

REVIEW

Penalty

Proceedings

HEALTH

AND

ADMINISTRATION

(MSHA),

Docket

WEST

No.

A/O

Petitioner

80-101-M

02-01510-05003

No.

V.

Docket
MADISON

GRANITE

No.

A/O

COMPANY,

No.

80-426-M

WEST

02-01510-05005

Respondent
Docket

No.

A/O
Docket

No.

A/O

80-485-M

WEST

02-01510-05006

No.

80-484-M

WEST

02-01510-05007V

No.

Crushed

Granite

Operations

DECISION
•rshall

Appearances:

P.

U.S.
for
W.

T.

cases

held

Prior

(I)
(2)
and

Act,
of

I

briefs

pursuant

Solicitor,
California,

Arizona,

for

Respondent,

for

the

Granite

assessment

of

Company.

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to

and

decision.

A

the

following

for

hearing

civil

filed

by

agreement

of

penalties
the

hearing

1981.

on

the

record,

the

parties

agreed

to

stipu-

4-5):

The

operator

is

The

operator

and

have

by
to

Phoenix,
Company.

consolidated

were

3,

going

to

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lations

the

MSHA;

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cases

March

on

of

Francisco,

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petitions

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counsel,
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San

Merlin

are

Government

Labor,

Granite

Judge
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the

Esq.,

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Elsing,

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Before:

Salzman,

Department
Petitioner,

the
the

the

the

jurisdiction
parties
Commerce

owner

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mine
of

these

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whether
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respondent
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this

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equipment

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price

Bernstein

Judge

com-

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cited

performance

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the

of
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decision

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it

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mine
30

380220

No.

trained

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C.F.R.

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operator's

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tor's

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379242

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Citation
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lation

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104(b)

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383582

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13-14).

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371217

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the

going,

out

who

witness,
Based
to

present
testimony,

and

the

penalty

of

$250

a

Order

No.

382391

at

was

issued

guards

along

when
the

I

the

and

the

operator
roadway

inspector

who

a

the
rollers

731

the

the

been
not

yet

mitigated.
to

leading
present
in

question

testimony

of

was

issued

citation

violation

viola-

a

testimony

had

was

area

contrary

existed.
Based

negligent.

operator

(Tr.

time

undisputed

previously
berm

new

that

the
found

upon

had

with-

roadway

the

the

of

the

rejected

not

serious

assessed

stop

and

cita-

inspector's
found
I
93),

a

effect

various

president

the

was

$125

of

been

have

and

the

the

to

115),

area

of

operator

that

to

there

negligence

hopper
testimony

the

penalty

to

Based

cut

feed

be

I

emergency

was

that

upon

the

issued,

(Tr.

intersection

(Tr.
that

been

recently

the
was

upon

president

found
the

citation

the

condition

I

accepted

I

hopper,
time

had

road

new

a

105),
(Tr.
two
locations,

the

this
Based

This

location

serious.

was

the

to

alleged

location

this

violation

assistant

that

installed

Based

that

observed

first

The

81).

a

assistant

operator's

(Tr.

56.9-22.

C.F.R.
were

refueled.
at

assessed

I

inspector

citation.

berm

this

found

I

but

berm

is
no

was

operator's

the

been

at

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existed.

tion

this

to

equipment

where
that

testimony

At

inspector

the

found

I

30

that

and

regard

the

of

it

vio-

contact

knew

foreman

correct

and

when

three

with

to

pulley
a

unguarded

easily

the

that

tail

a

screen,

this

could

persons

time

that
shaker

the

that

stated

violation
locations

a

where

serious,

issued

was

degree

91).

observed
from

occurred.

was

upon
was

the

concerning
$60 (Tr.

testified

violation

berms,

Both

berms.

a

Based

violation

the

inspector

leading

the

evicould

therefore

91).

(Tr.

was
no

80-484-M

WEST

had

different

the

of

inspector

not

without

concerned

testified

had

violation

No.

representation
a
penalty

inspector

The

found

I

Citation

out

a

he

negligent
82).

roadways

of

80).

but

the

found

the

but
had

and

I

C.F.R.

present

was

of

front-end

a

30

of

Government

existed.

level

ground

observed

violation

inoperable
negligence

conveyor
The

(Tr.

and

tion

come

I

,

been

when

the

on

testimony,

this

upon

the

No.

issued

for

located

parts
existed

alarm

that

assessed

I

56.14-1.

C.F.R.

backup

Solicitor's

was

provided

30

of

the

371216

No.
not

a

stated

degree

Docket

Order

a

had

this

violation

a

inspector

that

long
a
high

of

the

alarm,

when

Solicitor

the
accepted
Accordingly,

negligence.

guard

tops

the
accepted
operawhich
there
long,
very
of
assessed
I
a
penalty

been

not

the

and

over

FinallY

negligence.

backup

testified
The

found

I

and

serious,
of

of

issued

was

inspector

testimony,

this

had

factor

operable

an

89).
(Tr.
to
regard
a
charge

inoperable
not

371220

No.

without

be

to

dence

off."

bottles

two

the

fall

to

have

"set

be

89).

Citation
loader

the

mitigated

(Tr.

$30

would

that

testimony

substantially

would

cylinders

cylinders

the

upon

the

I

found

the

fore-

120).
observed

inspector
of

the

conveyor,

a

conveyor

with-

a

violation

of

30
a

C.F.R.

56.9-7.

122).
here,

He

that
had

they
this

to

further

serious.

history,

(Tr.

124),
upon

of

the

the

operator

Based

upon

the

foregoing

standard

Citation
of

clamps
30

C.F.R.

motor

the

equipment

of

condition

the

of

was

142).

were

not

serious

Citation

safety

kept
and
health,
of

testimony
and
Citation
30

him

the

tion

that

inspector

these

the

daily

small

383368

quit

inspector
be
kept

testified

found

I

nonserious

(Tr.

to

and

that

lost
that

the

that

the
a

adversely

main

records

violation

the

found

144).

record

of

had
that

told
the

Based

I

found

was

negligent.

I

assessed

hereby

AFFIRMED.

The

operator
decision.

tests

violation

a

existed.

operator

fore-

(Tr.

system,
foreman

but
office,
(Tr.
144).

the

the

upon

$20
a

affect
the

upon

maintain

$150

records

further

of

penalty

grounding

of

that

Based

I

viola-

penalty

I

the

the

the

Based

failure

protect
this

that

could

nonserious.
a

into
to

testimony,

existed.

be

strain

violation

leading

that

56.18-2(b).

a

had

moderate

observed

which

of

and

wires

inspector

issued

at

a

a

resistance

should

that

found

and

for

was

observed

assessed

assessed

I

exist.

and

locations,

testified

was

The

records

the

to

size,

size

further

I

violation

violation

violation

insulated

conditions

a

the

uncontradicted

I

C.F.R.

found

I

this

30

walkway

a

did

the

locations.

when

of

that

properly

this

upon

for

violation

a

had

issued

two

He

negligent.

operator

was

130).

both

at

found

small

that
not

were

inspections

testimony,

was

testified

Based

existed

inspector,

director

$20

•e

56.12-28.

inspector's
of

at

continuity

C.F.R.

safety

inspector

wiring

382393

No.

measuring
of

the

for

(Tr.

be
this

80-485-M

WEST

conveyor

would

along

129).

when

and
negligent
the
operator's

operator

going

the

No.

(Tr.
place

in

violation

that

operator's

(Tr.

$i00

being
energized
(Tr.
123).

No.
of

the

been

once

I

where

rollers

walked

a

and

issued

hopper

and

negligent

existed

personnel

that

provided

was

violation

a

had

been

short

visible

was

(Tr.

not

from

that

tion

371211

56.12-8.

the

found

No.

had

and

and

Docket

relief

handrail

a

All
123).
plant
they
regularly
this
testimony,

was

penalty

a

since

Based

that

assessed

or

(Tr.

deteriorated

a
travelway
moving
conveyor

the

to

stops

found

I

that

proximity

127-128).
the
meaning

within

testified

emergency

hazard

(Tr.

travelway
existed

inspector
close

in

come

stated

but

exposed

I

The

could

person

last
the

upon

the

viola-

penalty

a

148).
ORDER

The
ORDERED

foregoing
to

pay

bench

$1,565

decisions
within

30

are

days

from

the

ssistant
,/

1

date

of

Chief

this

Administrative

is

Law

Judge

Distribution:
Marshall

Labor,
San

W.

P.

Salzman,

11071

Federal

Francisco,

CA

T.
Elsing,
(Certified

Esq.,
l•il)

Esq.,
94102

34

Office

Building,
(Certified

West

Monroe

of

the

450

Golden

Solicitor,

U.S.

Gate

Avenue,

Department
Box

36017,

Phoenix,

AZ

of

Mail)
Street,

733

Suite

202,

85003

FEDERAL

MINE

SAFETY
OFFICE

AND

HEALTH

OF

ADMINISTRATIVE.

2

SKYLINE,
5203

FALLS

REVIEW

LAW

10th

FLOOR

LEESBURG

PIKE

VIRGINIA

CHURCH,

COMMISSION

JUDGES

22041

1981

SECRETARY
MINE

OF

LABOR,

SAFETY

AND

(MSHA),

ADMINISTRATION

Civil

:

Penalty

Proceedings

HEALTH

Petitioner

:

Docket

:

A/O

BARB
79-312-PM
09-00265-05001

No.

No.

V.

Docket
BROWN

BROTHERS

SAND

COMPANY,
Respondent

A/O

79-90-M
09-00265-05002

No.

SE

No.

SE

No.

:

Docket

A/O

80-58-M

09-00265-05003

No.

Junction

City

Mine

DECISION

Appearance

Ken

s :

Welsch,

Esq.,

Department

of

S.

U.S.

Office

of

Labor,

the

Solicitor,

Atlanta,

for

Georgia,

Petitioner;
Frank

Jordan,

J.

Jr.,

Talbotton,

Esq.,

for

Georgia,

Respondent.
Before:

Cook

Judge

I.

Procedural

and

Health

Background

Petitions
ant

to

30

U.S.C.

allege

of

assessment

§

801

total

et

of

civil

penalty

(Petitioner)

ll0(a)

section

a

Federal

for

Administration
of

the

Federal

se•.

(Supp.

three

violations

Regulations.

Answers

in

III

Mine

various

filed

were

On

November

above-captioned
December
16,

3,

1980

cases

for

1980,

representatives
of
presentation

notice
of
hearing
on
the
merits
hearing
The
Columbus,
Georgia.

in

with

of
the

a

,

both

parties

evidence,

both

file

briefs
posthearing
Counsel
for
Respondent
brief.
Accordingly,
and
proposed
findings

Brown

and

proposed

specifically
schedule

a

of

fact

for

set

734

at

the

of

fact

and

the

right
filing

to

the
of

law.

of

Company

schedulingthe

accorded

findings

cases

Code

Sand

issued

1977,

three

the

Safety
pursu-

of

The

held
was
hearing
and
participating.

were

conclusions

Act

Brothers

beginning

present

parties
reserved

was

and

was

Mine

cases

of

provisions

by

(Respondent).

the

by

above-captioned

and
Health
Safety
Mine
(1977
Act).

1979)
of

filed

were

the

of

9:30
as

on

scheduled
After

the

opportunity

conclusions
file

a.m.,

to

of

posthearing
briefs
posthearing
a

law.

On

February

indicating

that

issues

9,

1981,

involved

in

by

II.

Violations

Charged

A.

No.

either

No.

Citation

No.

Docket

Hanrlck,

Petitioner

M-I

is
forth

setting
have

M-2

is
forth

have

rather

November

20,

30

i,

1979,

November

27,

its

as

J.

written

communication

briefs

than

because
No

legal.

the

briefs

were

30

1978,

§

C.F.R.

30

1979,

§ 56.12-16.

C.F.R

56.4-2.

§ 56o12-32.

C.F.R.

witnesses

Federal

mine

Steve

Brown,
Brown,

witnesses

its

as

pump

operator;

introduced

the

and

Carl

a

exhibits

following

printout
compiled
by the
of
Respondent's
history
previous
been
June
28, 1977,
paid,
beginning

and

partner
a
partner

in

G.

manager;

and

manager.

evidence:

of

Directorate

computer

a

Gartsel

inspectors

Grabner.

sand

Assessments

violations

for

which

and

June

27,

ending

assess-

1979.

of
Assessments
Directorate
printout
computer
compiled
by the
of
violations
which
for
assessRespondent's
history
previous
been
and
paid,
19, 1978,
beginning
January
January
18,
ending
a

contains

20,

three
30

1978,

is

pertaining
§

80-58-M

called

i.

M'4

factual

a

Exhibits

the

Exhibits

M-3

SE

called

B.

November

May

Ronald

Respondent
Mathis,

ments

filed
Respondent
file
posthearing

Witnesses

and

setting

98528,

and

Petitioner

ments

79-90-M

98541,

No.

Witnesses

97094,

SE

No.

Citation

Jerry

are

to

79-312-PM

No.

Docket

A.

cases

BARB

Citation/Order

III.

wished

party.

Docket

C.

for

party

these

filed

B.

counsel

neither

the

sworn

photographs
C.F.R.

to

Citation/Order

97094,

No.

§ 56.12-16.
of

statement

Citation/Order

to

pertaining

No.

Mr.

Steve

97094,

dated

Brown,

November

1978,

20,

5,

February
30

1979,

C.F.R.

56.12-16.

M-5

is

a

two-page

30
May I, 1979,
thereto.
pertaining

C.F.R.

1980.

document

§ 56.4-2,

containing
and

a

a

copy

of

copy

of

the

Citation

inspector's

No.

98528,

statement

M-6
November
ment

is

M-7

Respondent

0-i

is

introduced

of

copy
a

20,

statement

0-2

and

30

C.F.R.

0-3

mine

27,

Citation
of

copy

No.

the

98541,

inspector's

30

exhibits

state-

a

Grabner

evidence:

Citation/Order

of

copy

J.

§ 56.12-32.

C.F.R

in

§ 56.12-16,

C.F.R.

Ronald

inspector
30
1979,

following

containing

1978,
pertaining

and

a

of

copy

the

thereto.

photographs

are

Federal
November

the

document

two-page

a

November

pertaining

to

in

civil

Citation

No.

98528,

May

proceedings:
(2) what

amount

i,

§ 56.4-2.

0-4

is

a

drawing.

0-5

is

a

drawing.

basic

Two

issues

violation

a

should

be

the

penalty

of

the

as

of

and

Opinion

V.

1977

the

Respondent's
Act
(Tr.

3.

The

not

be

should

be

to

(i)

have

occurred?

assessed

for

a

(i)

considered:

Fact

a

affect

within

commerce

the

meaning

of

the

5-6).

employs

Junction
is

that

factors

six

activities

3,

Respondent
(Tr.
3, 5-6).

Respondent

of

Findings

i.

2.

violation

and

violation.

Stipulations

week

a

penalty

penalty
occur,
is
found

of
history
of
the
(2) appropriateness
to
the
of
size
the
penalty
the
(3) whether
was
of
operator
(4) effect
negligent;
to
continue
in
operator's
ability
(5) gravity
business;
and
in
(6) the
operator's
good faith
attempting
rapid

A.

Mine

if
civil

these
standard

safety

that

requires

violation;

abatement

of

amount

the

on

mandatory
a
penalty

a

assessed

the
determining
the
law
violation,
previous
violations;
operator's
business;

involved

are

of

In

No.

a

and

Issues

did

a

prepared
by
No.
98541,

Citation

2.

1979,

containing
§ 56.12-32,

C.F.R.

drawing

a

97094,
inspector's

30

thereto.

to

No.

IV.

1979,

is

pertaining

document

two-page

a

27,
pertaining

nine

Mine
City
subsidiary

4.

Respondent

has

no

BARB

79-312-PM

(Tr.

3,

employees

is
of

history
5-6).

the
any
of

for

only
other

previous

736

mine

8-

one

owned

corporation
violations

to

10-hour

5

shift,

days

by Respondent.
(Tr.
3, 5-6).
cognizable

in

Docket

B.

Citation/Order

i.

Occurrence

Federal

Respondent's
2

he

p.m.,

107(a)
safety

locked

30

other

or

The

a

issued.
from

the

deenergized

circuit.

taken

edge

of

had

been

The

switch

(Exh.

to

the

individual

the

thrown

0-i,

upward

was

located

see

also

§ 56.12-16

2.

Negligence
that

three

fuse

jacks
of

requirements
fuse

were

jacks

removed

inferred

that

The

gland

four
had

is

found

[electrically

without

the

knowledge

of

the

be

the

one

30

no

the

a

§

packing

gland
holding
moved

started.

floor

of

the

dredge

standard

safety
of

the

evidence.

no

for
The
30

feet

the

procedure
Accordingly,
negligence.

located
the

fuse
be

therefore

can

The

dredge.

Pulling

with

complying

is

Pullthe

were

the

from

for
it

mine.
with

complying
fuse
jacks

weekly

a

on

the

at

ground.
It
dredge.

established

56.12-16.

performed

existed

the

above
from

be

to

procedure

feet

15

degree

the

had

operation
lock-out

power

high

switch

have

mandatory
preponderance

a

available
only means
standard.
safety
20
to
approximately

had

C.F.R.

knife

of

by

knowl-

the

the

that

found

a

the
back

on

retaining
in
gland
the

shaft

that

ring

place

had

a

short

737

holds
been
distance

the

in

packing
and

removed,
to

a

the

point

the

Respon-

ordinary

of

Violation
is

to

had

Operator
repacking

Respondent

pump

above

the

would

If

the

5

had

measures

without

it.

on

violation

a

other

no

energized

inches

established

the

was

and

out

being
working
position,

36

that

been

However,

of

been

the

from

"on"

approximately
M-4).

Gravity

bolts

the

electrical

demonstrated
3.

The

all

of

requirements
dent

individuals

the
mandatory
located
pole
approximately

telephone
jacks

or

into

Exh.

of

appears
basis.

a

shall

prevent

locked

not

was

equipment

has

monthly

ing
on

it

C.F.R.

It
or

switches

shall

which

energized

switch
the

prevent

Accordingly
30

being

(Exh.

"[p]ower

that

part,

sand

out"

it."

on

However,

been

in

taken

violation

a

citation/order
main
dredge

of
inspection
approximately
citation/
104(a)
of
mandatory
in
alleges,
pertithe
replacing
pump
cited
The
0-i).

the
establishes
that
least
at
during
hearing
in
the
the
main
on
engaged
replacing
packing
dredge
of
when
the
citation/order
electrically
powered
equipment,
knife
a
located
was
switch,
switch,
power
approximately
where
the
work
area
was
The
being
performed.
equipment
the
the
electrical
knife
by opening
switch,
thereby
breaking

The

feet

provides,

At

combination

a

for

locked

being

an

1978.

actively
piece

was

pump,

56.12-16

presented

evidence

employee

the

on

power

from

working

The

working

were

measures

equipment

individuals

§

C.F.R.

conducted

20,

No.
97094,
Respondent

electric

standard

safety
out

sand

the

30

1978,

Hanrick

G.

November

on

§ 56.12-16.

C.F.R.

"men

that

powered]

been

CityMine
Citation
order,
citing

without

packing
mandatory

18

inspector

standard

part,

Gartsel

mine

issued

20,

Violation

Junction

withdrawal

nent

was

of

November

97094•

No.

place.
packing

between

the

and

involved

in

used

the

insert

to

either

observing
is

possibility
on

the

at

a

dredge.
Had

the

shaft

slower

could

have

shaft

to

must

be

have

been

reach

a

engaged

rotating
The

be

All

by

be

used

that

it

employee
Accordingly,

violation

Faith

in

was

nearby
telephone
strated
good faith
C.

Citation

i.

Occurrence

Federal

the

mine

had

been

that
can

gasoline

In

have

gland,

knife

seconds.

rotated

employee

an

order

to

switch

this

reach

the

causes

second
a
Then,
M-4).
Injuries
tools
contacting

(Exh.
or

switch
could

would

have

If

to

a

violation

the
the

event
event

the

an

against
had

potentially
disabling
serious.
moderately

was

Abatement

by
it

pulling

the

found

that

is

three

jacks

power

on

demon-

Respondent

abatement.
30

1979,

§

C.F.R.

56.4-2

Violation
Ronald
Mine

City
issued

storage
down"

(Exh.

against
areas

May

M-5).
smoking
or
places

At

citing

§ 56.4-2

C.F.R.

could

conducted
1979.

i,
98528

No.

30
area

Grabner

J.
on

Citation

standard

in

the

Rapid

May i•

of

occurrence

improbable.

exposed

that

abated
immediately
pole.
Accordingly,
attempting
rapid

inspector

[knocked]
"[s]igns
warning
be
seen
readily

been

conclude

Attempting

of

safety

the

was

was

into
projected
the
on
dredge.
Accordingly,
into
upward
accidentally
sufficient
force
was
applied.

beenmoved

that

and

position
it

position,

provided

find

I

directed

"off"

the

to

this

walking

employee,

98528•

Junction

mandatory

for

in

No.

Grabner

Inspector
of

RPMs.

clothing

In

have

is

I

the

Respondent's

could

passing

a

one

The

would

RPMs

down

pulled
dredge.
by persons

the

standard

Good

5

in

hands,

gland
packing

the

540

to

of

considered,

cited

4.

540

been

of

could

factors

occurred,
injury.

of
speed
Engaging

rotation

of

result

had

floor

inferred

the

the

rotation
a

switch

position

which

rate

increase
as

the

which

can

"on"

300-RPM

engaged.

packing

holding
rotating.

parts.

knife
to

from

maximum

a

be

sustained
machine

parallel
walkway

at
must

to

By

gland

rotates

the

rotate,

shaft.

the

switches

two

to

the

prevented
shaft

speed,

started
than

rate

The

it

the

when

the

holding

was

the

Two
were
pillar
support
bearing.
employees
present
arrived.
One
was
inspection
party
employee
actively
His
left
hand
the
shaft
and
was
on
repacking
job.
resting
A tool,
such
screwdriver
as
a
or
was
packing.
punch,
being
the
material
into
the
The
other
packing
was
opening.
employee
the
or
assistance.
The
latter
repacking
operation
rendering
considered
the
There
more
other
were
no
probable.
employees

housing
pump
the
work
area

in

be

in

The

readily
mandatory

and

open

not

where

738

seen

as

safety

flames
fire

at
inspection
11:45
approximately
a.m.,
for
a
violation
Respondent
that
no
"[t]he
smoking
sign
an

or

shall

explosion

the

post

standard
be

posted
hazards

it

was

on

requires
so

they
exist."

The
located

area

surmounted

gasoline
storage
and
outdoors,
an
electrically
by

"No

smoking"

down.

The

readi]

Accordingly,
§

C.F.R.

2.

it

the

violaton,

has

been

of

the

that

position

and

violation

a

established

a

was

therefore

was

not

by

of
mandatory
preponderance

a

safety

standard

the

evidence.

of

Operator
the

reached

inspection

party

Jack

Spanks,

that

the

sign

had

stated

that

to

Mr.

Grabner

Inspector

found

is

56.4-2

Negligence

When
the

this

in

seen

in

a

visible.

-°

30

be

not

citation

to

of

consisted

attached

was
sign
could
sign

the

refueling
tank
fuel
1,000-ga!lon
underground
the
The
which
to
powered
gasoline
post
pump.
face
the
with
the
on
was
sign
laying
ground
referred

area

foreman

a

fuel

storage

employed

been

and

area

discovered
informed

by Respondent,
down
by a truck

knocked

April

on

30,

1979.

Steve

Mr.

Brown

the
on
was
sign
smoking
up
of
the
violation
had
he
no
knowledge
looked
at
that
he
and
Mr.
Spanks
that
downed
pole.
They believed
the
in
or
morning
30, 1979,
April
the

the

day

no

The

pump was

gas

the

through
the

the

negligence

operators

3.

or

of

is

outdoor

The

the

fuel

vehicles

been

knowledge

found

down
the

be

pit.

seen

employees

tracks
the

on

of

the

from

a

road

of

could

have

the
of

citation.

passing

short

the

and

near

evening

date

view

In

that

issued

was

truck

big

1979,

could

stated

He

citation

the

with

pole

the

citation.

knocked

i,

May
but
the

their

during
violation,

time

the

seen

nature.

Violation

area

No

one

to

bear

used

was

by

Respondent's

gasoline.

facility.

refueling

of

of

and

had

his
the

after

site

it

to

storage

with

the

way

minor

a

of

Gravity

some

of
to

until

day

every

the

on

property

which

refuel

used

not

best

prior

the

using

was

small

a

number
did

customers

when

facility

of
not

people

inspection

the

to

the

use

was

conducted.

is

important

until

it

was

be

inferred

It

visible

therefore

can

in
such
area
smoking
people
employed

flames

open
I

conclude

is

directed

explosion

would
that
was

have

mine.

been

improbable.
fatal

in

it

is

found

the
truck

a

used

especially
Additionally,

carried

into,
event

However,

in

injuries

could

the

used

refueling
considering

which

violation

of

the

It

knew

that
number

small

indication

that

Accordingly,

area.

the
an

readily
1979.

i,

area

no

the

in,

event

have

May

or

tile

against
the

30

is

and

place

in

was

April

there

or

the

that

sign
on

who

men

of

occurrence

an

that

by

the

prohibited,

the

at

resulting

Accordingly,
gravity.

down
that

was

of

mind

in

knocked

standard

cited

an

occurrence,

occurred.

was

accompanied

by

moderate

4.

Good

The

violation

Faith

in

D.

Citation

i.

Occurrence

Federal

p.m.,

mandatory

cover

for

The

issued

Citation
standard
volt
cited

no

testing

30

c.F.R.

the

§ 56.12-32

2.

Negligence

work

it

The
been

the

area.

record

sufficient
it

that
ever,
for

Gravity

The

leads

the

opening

improbable
the

fatal

exposed

injury

with

the

state-

evidence

in

establishes

of
mandatory
preponderance

of

that

standard

safety

precisely
junction

to

as

how

the

the

long
had

Respondent

to

have

discovered

it.

for

location

demonstrated

of

ordinary

the
than

the

evidence.

the

which

against

if

However,
electrical

box,

an

leads

have

been

sustained

is

found

that

it

cited

(Exh.

would

have

leads

(Exh.

standard

is

had

achieved

leads

were

individual
while

violation

was

cover

not

in

existed

for

such

M-6).

No

It

been

appears
wide.

Accordingly,

it

the

violation

was

M-6).
directed

The
was

with

contact

energized,
were
emploYees

accompanied

How-

improbable

a

in

area.

gravity.

a

Accordingly,

exposed.
by 4 inches

were

long

electrical
the

box

negligence.

leads
power
6 inches

junction

with

contact

could

kept

condition

less

M-6).

accord

be

the

and

220-volt

in

shall

that

motor

(Exh.

that

inferred

somewhat

event

a

missing"
"[i]nspection

was

requires
boxes
junction
repairs."

the

box

junction

screen

be

the

the

shaker

at

violation

a

"[t]he

that

in

is

by

with

Respondent

missing

from

achieve

and

At

the

Violation

of

and

violation

a

evidence

the

to

56.12-32

However,
time

was

standard

established

of

the

to

in

Operator

Respondent

3.

anyone

the

that

no

of

that

occurrence

been

therefore

can

found

due

found

of

period

is

is

contains

It

faith

inspection
approximately

an

1979.

the

hearing
Additionally,
being
performed.

was

has

existence.

in

§

C.F.R.

56.12-32

the

during

citation.

repair

Accordingly,

had

(Exh.

abatement

good

conducted

for

motor

safety
equipment
during
testing

presented
in

30

1979•

27,
charging

§

C.F.R.

mandatory

except

evidence

98541

No.

30

electrical

times

or

for

demonstrated

Grabner

J.

November

on

electrical

on

contained

ments

Respondent

27•

Ronald
Mine

City

The

all

allotted

time

Violation

safety

plates
at

the

that

November

inspector

220

M-6).
cover

place

of

the

within
found

98541•

No.

he

Abatement

Rapid

abatement.

mine

1:30

(Exh.

is

it

Junction

of

and

abated

was

M-5).
Accordingly,
attempting
rapid

Respondent's

Attempting

by

moderate

the

4.

Good

The

violation

Faith

(Exh.
M-6).
in
attempting

Accordingly,
abatement.
rapid
of

the

The

by

parties

shift

of

that

i0

to

of

parties
cognizable

in

The
tions

As
which
of

30

relates

As
which

relates

of

30

Effect

G.

SE

No.

SE

have

been

paid

C.F.R.

§

56.12-32

Civil

a

a

for

abatement

demonstrated

faith

good

City
subsidary
employs
3, 5-6).

Mine

is

small

operator.

history
3, 5-6).

of

Respondent

has

Respondent

paid
M-l).

(Exh.

of

not

Respondent
week
(Tr.

BARB

No.
been

Docket

assessments

violations

that
No.

Docket

to

allotted

is
of

the
any

nine

a

mine

only
other

owned

corporation.
for

employees

one

Violations

Docket

56.4-2

period
Respondent

Junction
is

that

Previous

have
§

a

found

is

to

C.F.R.

days

stipulated

assessments

the

that
5

time

that

Business

Respondent

it

History

the

found

that

stipulated
hours,

Accordingly,
F.

is

Operator's

and

also
8

within
it

stipulated

parties
Respondent,

The

abated

Abatement

Rapid

Attempting

was

Size

E.

in

79-90-M,
to
prior

Respondent

had

27,

five
None

previous

viola-

violations

for

violations

were

violations

seven

1979.

for

were

for

Continue

in

Four

M-2).

the

on

had

November

to

(Exh.

Penalty

Respondent
i, 1979.

May

80-58-M,
prior

no

(Tr.

79-312-M

Operator's

Ability

to

Business

No

alties

evidence

was

these

cases

in

business.

In

Operations
affect
ator's
be

not

VI.

Coal

affected.

so

in

these

the
held
of

the

remain

to

operator
there

therefore,
I
find,
proceedings

business

is

in

OSHD
Mine

of
will
the

within

pen-

remain

oper-

that
will
the
presumption
operator
that
otherwise
properly
penalties
continue
to
impair
Respondent's
ability

is

a

therefore,
will

in

civil

not

business.

Conclusions

i.

of,

Hall

(1972),
Appeals,
the
ability
and
control,

assessed
in

will

15,380

par.

that
the
of
assessment
establishing
affect
adversely
Respondent's
abilityto
i
IBMA
79
I.D.
1971-1973
Company,
175,
668,
Commission's
the
Interior
Board
predecessor,
that
evidence
whether
to
a
relating
penalty

presented

and

of

The

Administrative

the

2.
to
subject
proceedings.

Law

parties

Brown

the

Law

to,

Brothers

provisions

these
Sand
of

has
Judge
proceedings.

Company
the

1977

and
Mine

jurisdiction

its

Junction
Act

at

all

over

the

City

Mine

times

relevant

subject

have

matter

been
to

these

3.

Federal

mine

relevant

4.

The

5.

All

issuance

three
of
and

reaffirmed

of

findings
alties

is

charged
of

at

law

Grabner

at

all

proceedings.

occurred

Part

times

V,

as

alleged.
are

supra,

Assessed

fact

of
and

No.

the

entire

conclusions
as

Docket

Citation/Order

record

of

law,

in
I

find

these
that

Date

SE

98528

No.

SE

C.F.R.

Date

Standard

05/01/79

56.4-2

Penalty

$35.00

80-58-M

30
Citation

$60.00

79-90-M

No.

Docket

foregoing
of

Penalty

56.12-16

30
Citation

the

C.F.R.

Standard

11/20/78
No.

assessment

79-312-PM

BARB

No.

Docket

and

cases

the

follows:

97094

C.

have
in

30

B.

J.

Labor

these

in

to

forth

set

Ronald
of

Secretary
issue

found

are

and

herein.

incorporated

warranted

A.

the

citations

conclusions

consideration

Upon

the

violations
the

Penalties

VII.

of

Hanrick

G.

of

representatives

the

to

Gartsel

inspectors

authorized

duly

were

No.

Date

11/27/79

98541

C.F.R.

Standard

Penalty

56.12-32

$45.00

ORDER

30

Respondent
the
of
days

is

date

ORDERED

of

this

to

pay

civil

penalties

totaling

decision.

•Judge
742

$140.00

within

pen-

Distribution:

Welsch,

S.

Ken

Peachtree

1371

Office

Esq.,
Street,

NE.,

Solicitor,
Atlanta,
339,

the

of

Room

U.S.

of

Department
GA

Labor,

(Certified

30309

Mail)
Frank

J.

Jordan,

(Certified

Jr.,

Administrator

Standard

P.O.

Box

456,

Talbotton,

Mine

Safety

GA

31827

Mail)
for

Administrator
U.S.

Esq.,

of

Department
for

and

Nonmetal

Mine

Safety

Metal

Coal

and

Health,

Labor
and

Distribution

743

Health,

U.S.

Department

of

Labor

FEDERAL

MINE

SAFETY

HEALTH

AND

1730

K STREET

NW,

WASHINGTON,

REVIEW

6TH

D.C.

COMMISSION

FLOOR

20006

March
SECRETARY
MINE

OF

LABOR,

SAFETY

Civil

30,

1981

Penalty

Proceeding

HEALTH

AND

ADMINISTRATION

(MSHA),

Docket

Petitioner

A.C.

BARB

No.

78-168-P

40-00524-02016

No.

F

v.

No.
GRUNDY

Mine

21

cOMPANY, INC.,

MINING

Respondent
ORDER

APPROVING

SETTLEMENT

DIRECTING
On

March

motion

for

this

case.

$i0,000

and

in

The

20,
approval

pinned
operating.

The

of

fatally
is

to

abate

seem

to

concede

since

there

was

an

both

urge,

accident.
tion
between
best.
The

They
record

neither

loose

claims
fact,
scaled,

that
in

nor

that
the

if

even

accident

he

30

C.F.R.

rib

§
involved

any

causal

accident

overhanging
of
falling.
overhanging

danger
the

probably

head

was

was
an

condition.

that

the

foreman

a

his

with
operator
corrective
Prompt

that

the

which

tractor

a

at

$1,500.

when

overhanging
and

shows

and

however,

violation

the

in

injured
rib

a

parties

assessed
for

accident

an

parties

by

settle

a
medium-sized
violations.
the
cited

prior

of

taken

violated,

erly

out
was

Respondent
was

to

filed
the

Labor

originally

were

overhanging

an

of
reached

propose

mine

history

action

in

violations

arises

between

Secretary

settlement

a

parties

case

average

was

the

of

The
the

Respondent's

at

1981,

AND

PAYMENT

was

in

the

connec-

is

tenuous

rib

in

at

question

The

Secretary,

rib

was

have

would

75.202

prop-

occurred

anyway.

Any
the

assessment

involved

in

occurred

was

negligence

of

foreseeability

harm.

of

this

case

not

on

slight,

was

easily

an

must

Based

since

foreseeable

into

take

this,

account

negligence

the

accident

the

which
of

consequence

the

violation.

In

Finally,
remanding

terized

the

ently

does
not
should

cution
of

negotiated

and

thus

will

the

violation

of

Sixth

not

this

and

continue.
before

a

In

case

the

benefits
is

settlement
approve

the

be

cannot

case

Circuit

Court

"technical."

as

dispute

the
re-trying
surely
outweigh
the

history

the

it,

of

Appeals

The
therefore

this

overlooked.
charac-

Secretary
feels

posture,
administrative
it
might
provide.
fully
supported

the

744

prose-

difficulties
law

new

it.

appar-

that

I

by

the

judge

find

that
record

Accordingly,
is

ORDERED

date

of

TO

this

PAY

the

settlement

the

sum

is

of

$1,500

James

A.

Distribution:

certified

By
Kale,

Thomas

S.

Inc.,

Spears,

Cross

Building,

Esq.,

Kelly,

Law

Judge

488,

Jasper,

TN

Cohen,
of

TN

Mining

Grundy
8th

Floor,

Grundy
Kelly

&

Williams,

&

the

Company,
Blue

37402

for
Esq.,
Attorney
Leiderman,
Cameron,

Jr.,

Kelly,

for

Attorney

Chattanooga,

Inc.,

Department

of

mail.

Rebman

Moore,

pany,

Robert

Respondent

days

Broderick
Administrative

Chief

D.

30

order.

•/

Paul

and

APPROVED

within

Mining

Com-

Graham,

Box

37347

Attorney,
Labor,

4015

Office
Wilson

of

the
Solicitor,
Boulevard,

U.S.

Arlington,

VA

22203

Wilson

Office,
Boulevard,

Thomas

A.

Office

of

Assessment

Department
22203

MSHA,

Arlington,

Mascolino,
the
Solicitor,
of
Labor,

Esq.,
4015

U.S.

of

Department
VA

22203

Counsel
Division

of

Wilson

for

Trial

Mine

Boulevard,

Labor,

4015

Litigation,
U.S.
Safety,
Arlington,

VA

FEDERAL

MINE

SAFETY
OFFICE

AND

HEALTH

OF

ADMINISTRATIVE

2

SKYLINE,
5203

FALLS

LAW

lOth

FLOOR

LEESBURG

PIKE

CHURCH,

VIRGINIA

/BR

ELIAS

REVIEW

3 !

MOSES,

JUDGES

22041

188f

of
Complaint
Discrimination,

Complainant

COMMISSION

Discharge,
Interference

or

V.

WHITLEY

DEVELOPmeNT

CORPORATION,
Respondent

Docket

No.

Becks

Creek

79-366-D

KENT

Surface

Mine

DECISION
William

Appearances:

Before:

Pursuant

order
held

was

of

the

were

would

submitted

There

is

bills

repair

of

Kentucky,

for

Steffey

issued
as
hearing
amended
August
5, 1980,
by
a
in
the
above-entitled
1980,
hearing
proceeding
in
1980,
under
section
Barbourville,
Kentucky,
Mine
and
Health
Act
of
30
Safety
U.S.C.
1977,

the

hearing,

supplemental
be

prepared
by

I

Judge

for

an

Record

with

me

data
time

18,
Federal

the

Harrodsburg,

Kentucky,

of

24,

conclusion

provide

the

the

of

Completion

mental

notice

November

on

At

Law

September

I05(c)(3)
§ 815(c)(3).

ties

Administrative

a

Corbin,

Esq.,

Esq.,

to

issued

Hensley,

E.

Complainant;
David
Patrick,
Respondent.

marked

counsel

marked

exhibits

as

decision

my

It

marked

are

would

for

be

A

the

in

evidence

a

35-page

at

materials

compilation

of

for

year

66A7485

No.

par-

supple-

follows:

as

Serial

the

that

requested

identification

Tractor

for

received
The

Exhibit

as

counsel

agreed

was

proceeding.

Caterpillar

to

that

requested
and

this

identification

for

pertaining

in

and

I

information.

the

1976.

There
of

repair

is

marked

bills

for

is

marked

There

pillar

Tractor

There

repair

bills

Serial

is

marked
for

for

identification

Caterpillar
for
No.

for

Caterpillar

Serial

identification
90V2938

as

for

the

identification
Tractor

Exhibit

as

Tractor

746

Exhibit
year

as

Serial

No.

Exhibit
No.

B a
seven-page
66AI1561
for

C

a

repair

D

a

10-page

the

bill

compilation
1977.
year
for

Cater-

1977.

66A7485

for

compilation
the

year

1977.

of

as

Exhibit

E

Nos.

90V2938

Serial

Tractor

of

compilation

21-page

a

and

the

for

66A7485

1978.

year

bills

repair

the

for

90V2938

Caterpillar

year

1979.

for

Whitley

for

over

a

Becks

Moses

G

a

Exhibit

as

accident

one-page

19,

June

on

1979,

at

pay-

Mine.

Creek

the

for

a

Caterpillar

D-6

compilation
66A7485,and

34-page
66AI1561,

F
Nos.

Exhibit

as

of

identification

Elias

regarding

data

roll

Serial

identification

Corporation's

marked

is

There

Exhibit

as

Tractor

turning

the
regarding
Development

report

identification

for

marked

is

There

for

marked

is

There
of

Caterpillar

for

bills

repair

identification

for

marked

is

There

H

from

period

a

one-page

copy

of

9,

to

June

May

1979,

28,

1979.

in

(Tr.

evidence

through

A

Exhibits

counsel,

of

stipulation
284).

to

Pursuant

H

received

are

Issues

in

evidence

The

this

issues

novel

some

of

105(c)(1)

section

of

violations

stitutes

raises

case

the

what

concerning
Those

Act.

issues

con-

listed

are

below:

Was complainant

(i)

discharged

actually

on

July

on
was
July
discharged
complainant
Assuming
in
an
not
activity
was
that
engaged
complainant
the
can
nevertheless,
of
respondent,
i05(c)(i)
Act,
a
evidence
the
if
section
i05(c)(i)
supports
because
thought
respondent
complainant
discharged
105(c)(1)
which
is
act
an
by section
protected

(2)

further
tion

violated
dent
formed

(3)

it

Is

a

that

the

employee
employee

form

under

the

harass

an

of

violation
and
has

his

upset
did

an

i05(c)(i)

of

mind

because

of

peace

performed

but

Act

section

the

which

act

3,

1979?

3,

1979,
protected

and

found

be

assuming
under

that

Conclusion

the

respondent

for

respondent

employee

per-

Act?

the

Act

responhad

complainant
of

sec-

have

to

had

to

suspects
a

right

to

per-

perform?

not

refusal

as
alleged
complainant
discharge
to
for
of
i05(c)(i)
violation
respondent
is
it
a
Complaint,
the
for
sole
the
reason
when
continue
to
allow
working
to
complainant
section
under
i05(c)
filed
a
that
the
complaint
is
fact
complainant

of

Act?

(4)
in

respondent

did

not

section

his

refuse

the

Counsel

Findings

for

of

My decision
forth

that

Assuming

below:

both

parties

waived

the

filing

of

briefs

(Tr.

285).

Fact

in

this

proceeding

will

be

based

on

the

findings

of

fact

set

i.

Whitley
two

operates
the
present

employs
(Tr.
tipple
(Tr.
242).
2.

in

to

White.
he

summer,

work

he

returned

from

or

it

about

37

this

proceeding,

in

Ohio.

Moses

where

he

obtained

time

for

Moses

extension

an

the

in

mill

Kentucky
to
1979,

to

about

1973

by

Pascual

to

leave,

and

eventually
an

but
of

it

the

operator

for

as

a

its
wife

steel

mill

laborer

steel

for

mill

in

refused,

was

The
total

a

at

his

about

the

year.

worked
of

and

from

the

to

annually

and

worked

working

return

remainder

sites

off

At

coal

White

Moses,
job

proceeding,
apart.
of

job

time
a

the

as

both

some

his

of
for

a

tons

at

Elias
had

this
mile

in
of

107,000

persons
owned

is

in

came

obtain

to
to

produces

corporation

Kentucky

When

tried

years,

mill

came

returned

ing
6

steel

three-fourths

approximatelY
The

complainant
a

and

Ohio,

of

respondent

about

are

corporation

280-281).

in

Pascual
he

total

a

The

years
1970

the

the

Corporation,

which

mines

time,

and

20

Development

strip

so

followabout

of

(Tr.

bulldozers

14;

19).
3.
for

a

an

MSHA

applied

Moses

job

Inasmuch

as

a

inspector
Bunch

as

White's

mines,
4.

White's

dozer
who

is

was

the

White

White

Pascual

White,
After

Moses'

that

and

mechanic

Whitley

or

had

Moses

who

it

Moses

was

to

to

for

work

by
hire

job,
to

known

Moses.

inspect

(Tr.

Moses

Corporation,
Ben
Bunch,

hire

to

MSHA

Richard

to

mines,

strip

the

White

assigned

expedient

two

for

asked

was

report
at

Development

asked

brother-in-law,

inspector

said

instructed
foreman

mine

with
operator.

McClure
as

the

243).

27;

who
Red

was

Bird

the
Becks
Creek
job and
job (Tr.
Moses
184).
40-41;
for
work
on
reported
Wednesday,
as
and
May 9,
1979,
McClure
instructed,
Moses
the
assigned
job
of
D-9
a
Tractor
operating
at
the
Caterpillar
Becks
Creek
Moses
was
job.
told
to
a
bench
for
Bob
the
prepare
shot
and
Durham,
to
the
firer,
grade
roads
which
were
used
for
being
by trucks
coal.
McClure
then
hauling
left
the
Becks
Creek
traveled
to
the
job and
Red
Bird
After
(Tr.
job
185).
Moses
had
the
dozer
for
about
2 hours,
operated
two
mine
Kentucky
inspectors
at
the
Becks
Creek
appeared
the
job.
They inspected
dozer
Moses
Caterpillar
was
and
found
that
it
had
operating
hole
a
in
the
fuel
that
oil
was
tank,
onto
hot
a
dripping
that
the
dozer
had
engine,
no
and
that
the
dozer
brakes,
was
not
with
fire
a
equipped
The
extinguisher.
told
Moses
Kentucky
inspectors
to
the
dozer
until
it
stop
had
operating
been
(Tr.
repaired
42-43;
216-217).
After
the
Kentucky
Moses
from
inspectors
stopped
the
Moses
operating
dozer,
was
to
assist
HcClure
in
assigned
some
mechanical
doing
work
(Tr.
219).
5.
about

On

6

19,

June

weeks,

Moses

1979,

after

heard

that

Moses
a

1>-6

had

worked

Caterpillar
not
injured

at

the

Tractor

Becks
had

Creek
been

for

job
overturned

by its
who
operator,
was
Andy Raines,
in
the
accident
(Tr.
8; 56;
On
June
185-186).
the
20, 1979,
the
D-6
had
day after
turned
Moses
was
over,
dozer
a
and
observed
operating
a
land
the
at
helicopter
mine.
From
his
locaMoses
could
not
seewhat
tion,
the
in
the
people
but
he
saw
helicopter
did,
the
leave
helicopter
(Tr.
9; 59).
Moses
learned
that
Afterwards,
the
helihad
MSHA inspectors
copter
brought
to
the
mine
site
to
the
overinvestigate
of
the
D-6
turning
Caterpillar
(Tr.
After
59-60).
the
had
inspectors
left,

McClure

asked

Moses

if

he

was

the

who

person

748

reported

the

D-6

accident

to

(Tr.

MSHA

187).

60;

believed

he

that

testified

McClure

he

that

replied

Moses

had

not

when

Moses

reported

it.

stated

that

Moses

McClure

Although
had

he

not

the

mentioned

claims
that
Moses
the
accident
(Tr.
187),
reported
occasions
additional
(Tr.
least
at
two
MSHA on
to
accident
of
the
reporting
his
him
of
brother-in-law,
accused
that
McClure
calling
claims
Moses
62).
incensed
Moses
was
63-64).
(Tr.
MSHA
is
an
i0;
who
Ben
inspector
Bunch,
make
would
that
he
stated
and
the
of
accused
inspectors
about
calling
being
MSHA
to
accident
the
had
Moses
that
the
reported
McClure
allegation
prove
(rr.
64).
6.

and

Moses

called

be

would

7.

to

pick

his

up

reported

2,

1979,

White,

then

told

White

told

Moses

that

if

tor,

White

would

he

that

he

would

did

get

his

that

it

to

see

and

office

asked

been

repair
if

White

stated

that

"and

by God,

you

did

make

White

did

Moses

of

Moses

had

Moses

them"

call

White
MSHA

the

68).

(Tr.

allegation.

around

work

respondent's

accused

Bunch,

Ben

not

completed,
Kentucky,

believed

that

prove

192).

64;

been

had

he

he

brother-in-law,

(Tr.

Williamsburg,
where
shop,

in

he

that

and

had

D-9's

White

Caterpillars
Supply
•ayne
also
repaired

few

a

the

the

into

exclaimed,

and

Moses

on

and

MSHA.

to

repairs

went

Moses

working,

accident

I>-6

dozers

being
days
repaired

were

for

had

shop

repair

was

accident

the

the

before

D-9's

home

to

sent

was

two
at

the

when

check.

pay

the

reporting

work

to

other

remain

could

respondent's

to

Pascual

owner,

he

back

July

On
went

Moses

that

Caterpillars

The

D-9

respondent's

of

three

D-9

repairs.

told

was

the

of

one

extensive

for

Company

all

1979,

June

and

order

of

out

were

of

end

the

At

there

any

the

time.

inspec-

(Tr.

more

69).

felt

that

sary
his

to

9.
her

husband
the
to

her

(Tr.
that

husband,
She
170).
Moses

"Go

that

said,

from

Moses'

that
MSHA.

he

had
White

(Tr.

"You

work

heard

her

husband

go

get

claims

Ben

than

Ben

not

work

around

of

version
•hat
that
White

his

Bunch.
here

no

with

encounter

that

Moses

White

had

accused

him

he

told

Moses

also

claims

that

749

he

and

ask

was

in

progress.
White

she

make

White

stated

that

of

told

the

not

Moses,

his

care

Moses

statement,

different
and

what

stated

accident

I

to

had

Moses

if

117).

(Tr.

is

D-6

"Look,

claim

told

that"

shop
the

say

retorted

2

July

on

her

checks"

your
prove
White

to

see

reporting
did

heard
write

husband's

her

into

coming

husband

Her

Moses
came

he

that

shop

I

I'll

more.

when

truck

the

shop,

171).
(Tr.
to
In
reply

Bunch"

claims

White

version.
heard

damn

further

She

accident.

the

would

supply

voices

inspectors;

he

that

say

that

Moses

loud

which

the

of

damn

them

for

to

go

neces-

the

Moses'

in

of

argument

door

the

higher

"You'll

250).

stop

heated

told
from

sitting
aware

Moses

it

believed

McClure

should

she

the

at

he

returned

was

became

that

reached

she

don't

White's

i0.

to

that

wife,
She

shop
that

been

had

D-9

check.

as

so

reported

would

the

decided

him,
a
job.

had

complainant's

when

and

ahead

he

White

heard

home
that

had

still

his
and

shop,

come

to

the

in

firing

close
when

Moses,
to
get

went

testified

She

he

also

was

(Moses)

so

if
available

repair

husband

foreman,

come

McClure

Dorothy

from

to

had

White
ask

still
job was
188-189).
(Tr.

shop

to

White's

McClure,

8.

was

you,

l'd

run

251).

around

there

stay

around

foreman,

who

to

that

denies

White

work

attributed

was

when

the

the

Becks

your
in

by

Moses

argument
D-9

Caterpillar

Creek

the

White
had
for

job

work

assign
formed

that

was

shop,

returned

to

on

kind

work

of

3 because
July
the
during
find

to

Bob

the

morning
explosives.

with

before

and

and

ought

to

make

a

looked

at

him

and

said

he

was

stated,

in

effect,

not

a

12.
able

not

who

rat

Both

effect

get

get

off

that

Raines

Moses

was

and

return

and

Bob

Durham

the

hill.

the
Both

13.

The

the

comments

but

to

for

7

(Tr.

a.m.

the

12;

difference

on

the

to

go

McClure

knew

that

he

to

Durham

said

some

profane

of

it

claims
when

trying

McClure

of

be

convince

him

holes

that

he

objectionto
something
for

Moses

him

talk

to

to

more

place

in

to

to

Andy

he

had

get
the

off

that

them

took

have

to

told

twice

per-

Moses

claims

better

stopped

to

that

but

other

to

had

fill

said

McClure

told

McClure

claims

or

he
holes

Moses

else,
70).

that
he

whether

Moses

would

conversation

entire

time
a

Durham

McClure

work,

t•e
had

drilling

holes.

filling
could

that

MSHA,

asked

MSHA

Moses

purpose

Durham

to

contends

to

that

agree

primary
made

the

accident

charge

3.

that

things

3

July
of

for

to

home.

the

on

in

was

agree

going

not

had

good

that

the

job
to
reported
that
feeling
in
the
repair

Moses

conversation

certain

Moses

White's

of

at

site,

help
thereupon
anything
(Tr.
12;

else.

agree
also

men

also

Moses

1>-6
men

of

neighborhood

Both

still

Moses

be

still

he

for

man

that

want

any

2,

job

that

accidents

Moses

if

and

reported

and

truck
hill

good

anything
not
might

report

used.

the

not

he

would

was

his

in

that

McClure

language

to

good

for

claims

said

July

the

July

of

not

you

"If

McClure,

Moses

on

for

did

233).

that

Durham

(Tr.

•ses

Moses

251).

heated

out

named

McClure

because

the

holes

him

tell

189;

McClure

by

repair

available

that

was

fill

to

told

today"

that

White

(Tr.

been

actually
discharged
2 and
on
Moses
wanted
July
shop
had
still
a
An
job.
employee
off
and
on
setting
explosives
someone

that

wife

the

had

White

denies

his

been
in

hedid
(Tr.

business"

shop,

and

it

to

see

that

damn

here

working

even

would

claims

own

had

Moses

with

not

he

Moses

White

present

White

you're

told

more.
run

Although

ii.

he

any

here,

to

Moses'

because

business,

own

my

190-191).

75-76;
between

Moses'

and

McClure's

of

interpretation

of
3 is
that
claims
that
Moses
McClure
morning
July
used
words
in
Moses'
that
meant
McClure
had
fired
him
which,
mind,
clearly
(Tr.
the
other
On
McClure
claims
103-104).
that
he
did
not
term
which
use
a
hand,
that
he
had
meant
and
Moses
in
it
his
not
intention
was
discharged
that,
fact,
to
Moses
McClure
claims
that
if
had
(Tr.
194).
Moses
ahead
and
discharge
gone
filled
Moses
would
have
been
allowed
to
work
on
3 (Tr.
but
holes,
194),
July
that
since
declined
Moses
to
do
the
work
had
McClure
choice
no
only
available,
until

tell
the

14.

Moses

D-9

had

been

to

returned

the

house
from

because
the

McClure

there

repair

was

shop

no

work

for

(Tr.

206;

236).

Moses

testified
that
the
D-9
returned
from
the
was
repair
shop
of
the
week
Hoses'
claimed
that
Wednesday
following
discharge,
is,
and
Moses
not
called
was
to
back
to
work
because
come
July
ii,
by then
had
received
letter
a
that
had
respondent's
filed
Moses
management
stating
a
had
that
he
been
in
violation
of
the
Act.
complaint
alleging
discharged
McClure
that
did
call
not
Moses
back
to
after
work
that
they
says
learning
about

780

to

do

procedures."
After

15.

dent

16.

that

and

dent

told

McClure

explained
that
they
provisions

the

in

for

policy
working

the

been

sent

to

had

known

that

Bunch's

White

claims

the

who

not

reported

had

discharged
already

that

morning

fired

Moses.

to

discuss

the

be

light
that
Moses
opinion
116-118).
(Tr.
discharged

had

discharge

Howard
he

should

the

at

where

Bunch,

Moses'

I>-6

brother-in-law

was

with

the

discrimination

is

other

working

at

the

•hite

so

would

file

MSHA's

to

contrary
relatives

inspector's
brother-in-law,
two

came

then

Howard

the

with

accident

it

that

acci-

he

when

the

hearing

mines

examine
Ben

of

was

reported
the

matter

of

in

asked

had

person

of
Moses

be

the

D-6
Howard

had

and

before

night

to

McClure.

to

that

want

the

job

identity

might

that

Creek

the

would

if

talked

would
Becks

are

have

not

if

inspectors

be

to

reported

McClure

he

to

Inspector
investigate

(Tr.

home

testified

inspectors

and

his

Moses'

also

Howard

17.

Becks
had

to

Howard

complaint

the

that

have

would

who

acci-

White

advise

to

been

because

Act

went

person
Howard

he

reconsider

could

name

told

Howard

and

name

and

and

that

that

McClure

to

discrimination

a

that

feared

his

went

D-6

the

reporting

whose

town

he

with

about

and

inspectors,

White

of

told

2, 1979,
MSHA, Moses

with

out

about

name

Howard

Moses

work.

to

his

July

woman

the

not

was

was

had

Howard

3,

July

something

to

"clear"

to

a

on

of

supervisor
charged

by

work

accident

I>-6

matter

MSHA

Moses

Moses

accident.

1>-6

the

of

White

"clear"

to

the

discuss

that

MSHA.

McClure

told
Howard

Howard

morning

the

to

asked

to

respondent

accident

having

was

On
to

report

over

Moses
to

White

with
the

been

could

"right

the

follow

not

241).

(Tr.

conversation

reported
(Tr.
69; 116).

accident

confidential

kept

T.

61).

we

reported
MSHA
an
Howard,

Moses

trip

a

did

think

had

concern

make

to

D-6

the

heated

(Tr.

MSHA

to

agreed

Moses'

his

about

Howard

the

Kenneth

of

home

the

to

just

"I

complaint"

filed

that

allegations

the

they

stated,

McClure

fact,

In

hadn't

he

out--if

because

filed

been

had

complaint

the

MSHA

Creek

Mine

that

Moses

124).
18.

that

he

after

realized

soon

hiring

Moses

with
checked
managebelatedly
not
a
operator.
was
proficient
and
a
had
dozer,
Moses
operated
where
previously
the
K-Nab
at
ment
Company,
that
the
is,
on
be
to
a
equipment,
considered
"cowboy"
was
that
Moses
learned
howfelt
White
obligated,
244).
manner
(Tr.
in
a
the
rough
handled
equipment
the
Moses
damaged
even
allegedly
his
though
on
Moses
to
payroll,
keep
ever,
of
the
in
wanted
to
White
good graces
because
keep
dozers
treatment,
by rough
255).
MSHA
(Tr.
an
252;
who
was
inspector
Ben
Bunch,
Moses'
brother-in-law,
able
be
to
he
because
an
hoped
as
he
Moses
that
employee
said
White
kept
Also,
with
holes
such
exploas
manual
loading
to
back
labor,
switch
Moses
to
doing
he
was
the
same
Moses
have
to
salary
he
would
he
knew
pay
even
though
sives,
White
inconsistently
280).
dozer
(Tr.
258;
252;
Moses
a
as
operator
paying
and
dozer
a
learn
to
properly
to
2 or
3 years
takes
operate
that
it
stated
dozer
for
21
dozers
been
good
has
himself
years,
he
that
operating
although
dozer
258).
with
(Tr.
a
do
how
to
new
him
show
still
things
operators
White

dozer

19.

James

subpoena.

He

Davis
now

works

appeared
for

as

a

witness

Sterling-Garrett

then

at

the
Coal

hearing
Company

in
as

response
a

back-dump

to

a

operator,

but

in

May,

serviceman

on

all

of

140).

Davis

said

that

Moses

abusing

or

misusing

the

dozers

saw

nothing

Moses'
2

old

were

days

after
he

the

MSHA.

Davis

going

were

the

truck

them

repair

had

call

them,

he

would

he

Bobby

working

for

witness

in

Pascual

White

response
either

to

White

for

White

he

wanted

(Tr.
opinion,

think

that

McClure

Moses

asked
truth

when

that

he

believed

believed

Moses

when

testified
truth

the

hill

that

(Tr.

21.

was

167).
Moses

all

that

was

been

Durham

may
did

have
not

hear

might

have

done

so

hear
there

because

he

the

mine

at

allowed

The

to

do

first

so

of

a

been

said

if

called

the

the

truth
had

(Tr.

to

the

morning

him

working
worked

showed

151).

Durham

did

154).

Durham
Moses

accident

also

felt

In
not

said

that

was

telling

told

McClure

that

and

the

for

where

Moses

(Tr.

thought

a

not

was

matter

he

as

would

Durham

the

that

he

Moses

inspectors.
reported

was

that

and

about

not

1980,

Durham
and

Durham

prob-

146).

appeared

that

operators

equipment

to

minor

November

said

operator

accident,

replied

made

as

from

the

McClure

Several

aspects

heard

could

Durham
MSHA.

to

had

Moses

tell

Moses

159).

Whether

a

violated
whether

not

to

told

he

was

working
Durham

he

needed.

helped

fill

holes,

Although

that

said

that

not

that

of.
Pascual

work

to

did

stated

said

but

not

Moses

for

off

get
if

Durham

aware

Durham

return,

to

once,

allowed

stopped
him

they

were

with

respect

McClure
White
men

were

not

Occurred

be

made

in

this

I05(c)(i)
was
actually

section
Moses

preponderance
of
the
testimony

have

than

that

Discharge
can

McClure

Durham

Moses

that

(Tr.
168).
on
3 and
July

holes

conversation

told

Moses

would

fill
and

Moses

have

(Tr.

McClure
tell

McClure
to

their

that

McClure

that

160-161).
the
help

given

to

he

willing

to

determination

conclude

on

between

more

(Tr.

respondent
be

Moses

the

able

(Tr.

time

other

dozer

he

thinks

had

who

site

Before
whether

tell
that

with

on

minor

be

Durham

164).
the

for

the

on

said

present
said
that

not

was

Question

does

having

Durham

if

3

average

McClure

Durham

(Tr.
July

an

would

(Tr.

worked
he

and

he

if

brakes
sometimes

in

Durham

to

that

not

brother.

after

stated

stated

that

attention

about

accident

would

of

Davis
to

that

defective

hearing

158).

opinion,

foreman,

and

used

see

attributed

the

be

not

155).

Durham
and

twice

he

the

White

D-6

denied

lack

and

the

a

128-129;

did

said

said

White's

(Tr.

be

Davis

the

as

problems.

reported

to

White

(Tr.

jobs

could

mechanic

of

Pascual

mechanical

report
Davis

from

as

the

Davis'

the

time

"cowboy"

a

after

Moses

Moses

the

was

was

him,

the

Durham

Moses

In

continue

Durham

made

145).

for

inspectors

133).

before

158).
just

150;

bench

131;
give

had

to

but

Pascual

or

and

to

so

Pascual

firer

day

(Tr.

the

do

subpoena

a

shot

a

called

is

every

Moses

or

the

at

who

Moses

as

a

Durham's

Durham,

G.

once

138).
McClure,

breakdowns

major

L.

J.

favor

to

in

White's

(Tr.
134;
occurred,

(Tr.
dozers,
They would

away.

of

which

the

on

worked

malfunctioning

driving

was

occur

result

20.

on

Davis

right

would

lie

had

either
he

which

problems
lems

accident

that
that

would

least

equipment
be
expected

denied
to

at

the

D-6

believed

at

Moses

could

he
all

1979,
used

saw

equipment
the
equipment

of

operation

that

he

the

July

equipment

and

about

and

June,
the

of

of

proceeding
the
Act,
discharged

the

evidence

that

support

that

finding.

752

Moses

decision

a

by
was

to
must

respondent.
discharged.

I

indicated

As

White

1970

in

became

job

a

received

is,

as

request
MSHA inspector,

an

find

job

a

tor,

duties

Bunch's

testimony
MSHA

by
brought
270).
260;

White's

McClure,
the
asked

supra).
another

with

inspector,
the

convince

Moses

say

indicated

As

ways.

pressure

from

average

dozer

report

violations

operator;
of
follow

did

not

248);

and

White

such

it

clear

any

time

of

person

to

that

his

White

suspected

Moses

MSHA
Moses

suspect

Howard,

of

Moses

did

the

D-6

an

report

not

he

can

had
to

went

a

very

great

accident

the

reported

who

accident
have

to

seems

because

one

to

for

a

he

opportunity

had

as

threat

to

resign

on

the

worst

in

presented

21

his

his

toward

experience

years
doubt

but

that

White

McClure

was

free

to

discharge

753

(Tr.

occasion

to

itself.

when

disappointed
one

of
an

might

who

person

attitude
of

number

best,

at

was,

having

a

because

Moses

a
was

reason

that

being
White

no

McClure,

Moses

as

in

Moses

hired

had

MSHA;

hired
is

with

that

Moses
to

with
Moses

dislike

he

that
found

standards

safety
through

foreman,
an

perof

an

was

to

testimony

reporting

displeased

said

White

White

the•

circumstances,

who

testimony

was

inspector;

classified

any

hired

his

he

that

shows

his

report

above,

MSHA

an

Moses

In

that
have

testimony

the

of

because

his
to
being
to
fellow
and
employees
employer
did
not
McClure
if
even
and
Secondly,
supra).
12,
brother-inhis
to
accident
the
had
Moses
reported
and
overthe
of
conscious
relationship
been
acutely
MSHA.
to
the
accident
had
he
that
reported

suggestion

the

the

the
that

su___•).

16,
of

not

was

in

would

ii,

5,
to

he

and

place,
employees

fellow

his

referred

Moses

seems

to

employer

that

who

Nos.
to

White's
of

them

traitor

(Finding

reacted

by

first

the

In

liked

continually
a

actually
Moses
law,

be

to

considered
MSHA

bases.

ontwo

15

therefore,
been

that

of
but

reporting

McClure

the

5,

accident

identity

had

he

once,
No.

the

of

the

doubt

accused

being

about

all

least

the

and

of

identity

at

doubt,

although

Nos.

the

brother-in-law,
White

cause

beyond

(Finding

MSHA

to

desire

MSHA.

accident

inspector,

explained
to

the
shows

sensitivity

lengths

likely

to

MSHA.

to

(Finding

accident

reporting

Moses

White

site

out

discussed

that

fact

255;

252;
that

that,

no

pressures

242;

job

the

be

by Moses'

White

upon

been

his

determining

opera-

mines.

the
he
can

in

The

reported

had

accident

strong

very

have

who

There

dozer,

a

believe

and

MSHA

dozer
because

to

find

to

it
a

as

(Tr.
to

tried

that

interested

accident.

placed

Moses'
be

were

operate
White's
of

at

reported
and

Moses

sensitive

discussed

Durham

White

reason

to

who

still

if

accident
he

having

and

business

is

an

231-232).

(Tr.

White

to

his

accident

D-6
person

named

reported

D-6

the

the

employee

pressure
would
one

the

was

supervisory

MSHA

that

the

who

subtle

admits

McClure

and

son

foreman,

admits

with

accident
White

of

White

generally

is

there

reporting

also

McClure

he
conducts

the

he

if

Moses

way

reported

who

person

that
he

shows

circumstances,

resented

have

would

upon
such

In

included

job,
was,

for

hired

he

ability
inspection

his

into

the

Bunch
that

said

the

who
Bunch,
would
appreciate

asked
Ben

that

effect

time

that

had

and
White

asked

and

unemployed

was

Moses

White

checking
at

White's

After

Moses.

first

without

Moses

Pascual

companies

other

for

for

worked

had

Moses

worked

brother-in-law,

the

to

for

1979,

In

Moses'

from

above,

3

thereafter

Moses

operator.
operator.

dozer

a

a

could

as

a

as

and

2

Nos.

laborer.

bulldozer

a

for

Finding

in

(Tr.
had

260).
made
Moses

McClure
Moses'

recalls

claimed

But

if

not,

236).

Moses

yo•'

for

claims

(Tr.

McClure

told

117).

McClure

"to

equivalent
did

12).

as

to

at

that

statement

a

for

well

Moses

to

"If

you're
in

get

July

on

3, 1979,
let's
work,

going

to

truck,

and

the

date

of

to

work.

go

house"

the

(Tr.
"Get
off
the
I've
stated,
hill;
got
nothing
MSHA supervisory
stated
that
inspector
unequivocally
of
3 that
he
had
fired
morning
July
Moses
(Tr.
already
the
that
he
told
Howard
that
he
had
hearing
sent
Moses
Howard
have
that
statement
to
be
might
interpreted
that
he
had
fired
or
but
that
he
discharged
Moses,
to
his
statement
in
that
manner
interpret
(Tr.
206).
your

to

go

McClure

the

stated
and

words

be,

to

The
on

intend

not

final

that

him

house"

the

his

discharge,
you'd
just

Howard

McClure's
denial
of
an
intention
to
it
is
fact
a
discharge
Moses,
to
"send
the
house"
is
phrase
used
in
the
coal
fields
frequently
as
to
or
being
equivalent
a
firing
For
when
discharging
Pascual
person.
example,
White
was
he
stated
that
of
one
his
dozer
testifying,
admitted
once
operators
to
White
that
he
had
failed
to
notice
that
the
dozer
negligently
was
running
low
oil
on
as
a
result
of
that
and,
the
burned
was
out.
negligence,
engine

Despite

that

the

The
so

dozer

operator

he

stated
you

you

if

man

that

man

"never

send
he

unwarranted

of

he

the

McClure

discrimination
to

Howard

that

for

his

(Tr.

believe

the

No

Whether

a

or

otherwise

rights

applicant

for

applicant
related

to

cause

statutory
this

he

what

care

to

the

to

Moses

him

if,

to

be

3

July

on

the
and

filed.

is

It

about

discharges
in
fact,
interpreted

Act

of

for
to

filed

in

shows

this

of

Act

interfere

with

any
such

Act,

miner,
in

any

or

cause

any

the

discrimination

including

a

754

of
of

other

mine
of

representative
or

Occurred

exercise

or

filed

preponderance
July 3, 1979,

discriminate

manner

representative

miner,
has

in

coal

on

follows:

as

or

the

105(c)(1)

Section

reads

discharge
discharged

that

discharged
proceeding.

was

be

employment
this

Moses

the

employment
because

above

that

made

complaint

a

the

miners

or

subject
miners

complaint
notifying

or

under
the

on

to

HcClure

discussion

unlawful

him

jumps

complaints

to

Moses

detailed

a

told
who

person

explained

misunderstood

to

the
and

McClure

of

type

discrimination

pertaining

Violation

of
shall

person
or

not

had

told

quitting

that

the

of

listened

discussion

finding
Complaint

i05(c)(i)

against
against

Howard
remarks

a

Moses'

Section

testified

not

that

did

he

money,
blame

highly
the

without
McClure
as

words

of

the

118).

that

of

is

filing

he

have

that

about

of

don't

I

claims
to

lot

a

Pat.

265).

testified

complaints

intended

Question

or

said

would

cost

oil,

wanted

who

the

regarding

McClure

(Tr.

Moses,

Howard
Act

that

that

in

to

fired

the
White

he

inspector,

had

engines

new

check

265).

work"

to

up

that
to

decision

supervisory

supports

alleged

house"

fact

forgot
(Tr.

whatever

back

that

discharge
I

just

conclusions.

evidence

The

the

stated

not

the

make
show

in

unlikely
of
filing
explaining
had

to

me

did

provisions
Howard

"I

the

of

aware

White,

could

Howard,
3, 1979,

July

was

to

as

operator
the

miners

safety

the

mine

of

representative
an
alleged

violation

in

a

coal

or

other

representative
of
subject

of

miners

or

applicant

the

is

under

transfer

agent,

coal

the

health

miner,

ment

or

other

at
or

such

operator's

the

or

or

medical

standard

a

evaluations

published
representative

tion

of
section
language
discharging,
by
of

exercise

that

provides

if

obtained
made

available

findings

that

the

dent

reported

ident,

complainant
to

the

accident.

not

be

for

May

June

activities

not

to

Nos.

15

and

16,

report

to

MSHA

the

19, 1979,
respondent's
proceeding

but

the

accident

in

not

addition

to

mine

on

not

acciwas

20

June

only
reporting
supervisory

abstained

aside

the

not

be

to

acci-

the

the

a
extreme
inspeclength
asking
who
that
he
the
was
reported
person
allegation
that
canit
first
respondent
impression,
appears
coma
section
i05(c)(I)
discharged
by having
of
a
the
safety-related
making
protected
activity

on

violated
in

in

but,

MSHA

of

this

in

have
not

The

not

19

not

at

Committee

broadly

to

be
free

brushed

finding
proceeding.

that
That

of

section

in

aspects
the

the

the

No.

a

sort

of

if

person

he

intends

that

interpreted

the

by

scope
the

had

85-181,

95th

of

protected

the

Secretary,

sec-

disposi-

easy

noted

As

who

reports

a

That

35:

page

basis
of

i05(c)(i).

by their
Therefore,

MSHA.

to

on

violation

operator.

harassment

complainant
Report

Senate

the

to

from
hazards

ask

of

name

revealed

report

MSHA.

to

be

that

be

to

agent

could

other

provides

did

states

this

in

consider

is

its

be

no

should

or
or

proceeding
difficulty

proven
to

miners

of

*

this

section

is

the

MSHA

to

all

1977,
*

to

came

The

mine.

the

be

may

hazard

did
June

mine

a

to

103(g)(1)

did

*

of

particularly
on

MSHA).

(or

Secretary

the

Act

of

fails

they
respondent
16,

the

to

inspection

the

the

of

name

would
was

hazard

accident

103(g)(1)

sec-

with

went

engaged

I

section

that

interfering

Section

at

that

violate

may

reporting

proceeding,
proceeding
mine

statutory

to

Complaint

the

above,
i05(c)(i)
however,

means

this

applicant

any

MSHA.

to

If

in

operator

the

accident

have

was

mine.

inspectors
Complainant

Therefore,
to

who

plainant
complaint

whether

his

found

this

accident.

"clear"

tor

in

three

and

the

reporting

the

respondent's

at

the

investigate
from

fact

complainant
MSHA,

to

of

of

or

of

otherwise

exists

miner

or

because

an

immediate

the

any

testified

or

Act.

hazard

a

applicant

or

instituted

conditions
an

of

name

operator

of

occurred

which

unsafe
that

that

the

the

to

The
show

tion

that

the

under

provides
believes

miner

a

that

against,

i01

section

of

shows

report

may

also

provides

further

tion,
above,
safety

miner

a

103(g)(1)

Section

stated

miner

a

105(c)(1)
discriminating
of
his
rights

employ-

potential
to

pursuant

or

because

or

for

and

for

The

danger

mine,

miners
such
miner,
be
caused
to
has
instituted
or
employment
this
has
related
Act
to
or
under
or
proceeding
such
or
in
to
about
is
proceeding,
testify
any
of
miners
exercise
miner,
representative
by such
others
behalf
of
himself
or
on
for
employment
Act.
afforded
by this
right
because

or

of

and

provision
as
employers
it

was

Cong.,

improper
the

reported
ist

to

Sess.

intends

it

seeking

inspection

tion

in

include

to

work

to

or

unhealthful

are

violative

and

the

or

in

administrative

have

he

foreman

reported

had

the

report

referred

to

mentioned

his

foreman

times.

Complainant

happy
dent

had

become

been

of

much

as

tionally,

asked

MSHA

(Finding

testimony

be

to

number

of

ant's

Act

1979,

to

MSHA.

Discharse

on

Other
in

this

when

credible
the

lost

his

to

implicate

nated

job

MSHA

under

accident
made

the

believe

not

reporting

that

the

of

under

the

as

to

it

to

comes

in

who

was

was

thereafter

unwarranted

the

complain-

MSHA

an

claims

about

violated
respondent
complainant's
right
the
accident
reported

section
to

of

June

anonymity
19,

he
fact,
pertaining

in

the

had

section
he

Inasmuch

not.

had
as

by the
i05(c)(i)
complainant

respondent's
persistent
was
complainant
of
by being
suspected
reporting
been
affected
if
he
adversely
to

facts

the

reported

to

accident

have

raised

are

MSHA,

attempt
discrimithe
had

accident.

While

respondent's
of
plainant
reporting
July
2, the
evidence,
which
that
on
developed

it

mentioned

i05(c)(i)
violated
respondent
it
that
suspected

because

would

accident

complainant's

accident.

section

to

i05(c)(i)
he

have
Addi-

respondent's
the

that

he

whether

arguments

section

be.

to

Accident

respect
is

the

acci-

would

with

whether

reporting

much

find

interfered

complainant
even
though,
with

reporting
I

make

to

the

matter

when

brother-in-law,
complainant,
of

of

out

he's

"Oh,

as,

If

was

different

three

remarks

foreman

accident

hire

to

Reporting

them

the

of

the

management
the

Act.

least

at

such

i0).

complainant's
owner

to

wi£h

because

as
just
reported

actually

do

that

above,
it

of

of

One

him

against

accident

the

(Tr.

than

respect

Suspicion

discharged

accident

representative

that
he
had
asked
testimony
complainclaimed
to
the
foreman
Although
that
contends
only
once,
complainant

of

of
reporting
No.
5, supra).

given

questions

to

there-

his

MSHA.

foreman

I

which

to

when

Act

with

case.

it

his
to

once,

orders

or

brother-in-law"

that

reasons

the

in

the

unsafe

promulgated

proceeding

his

obsession

an

the

under

with

miner

that

it
for
was
improper
ask
to
respondent's
inspector,
for
as
just
respondent's
improper
role
in
complainant's
alleged

of

comply

accident

While

the

to

by a
judicial

the

only

(Finding

presence

For

be

reporting

his

more

times

105(c)(1)

also

to

it
turned
as
complainant
of
other
testified
that
respondent's
employees
them
if
had
they
thought
complainant
reported
19
and
Nos.
I consider
20, supra).
Therefore,

two

foreman

of
the

mentioned

but

believed

accident

alleges

called

He

now.

[103(f)]

standard

agreed
the

complaints
participa-

the

are

any

or

and

of
or

Section

refusal
Act

participation

Complainant's
if

ant

the
the

filing

[103(g)]
which

under

conditions

in

of

under,
any

Section

inspections

mine

refusal

the

only

not

under

the
in

Pascual
owner,
accident
when

general,
If
day.

disavows
that
he
accused
comWhite,
asked
him
that
complainant
question
Moses'
of
the
supports
description
argument

White

756

had

said

no

more

than

that

he

didnot

on

reporting
become

heated

as

there

proceeding,
"You
I

270).

For

when

White
damn

same

she

claims

Bunch."

Ben

had

he

that

proof

not

work

to

does

not

White

there

any

namely,
reported

he

around

here,
the

into

White

was

innocent

who

was

a

to

prey
was

of

White

in

and

not

made

a

complainant

to

the

argument

reported

he

to

you
remark

That

would

the

busi-

own

with

not

been

have

his

business

that

"If

that

running
was

complain-

remark

from

away
after

wife's

his

that

it

to

There

that

MSHA.

to

see

that

getting

in

complainant
251).
(Tr.

only

accident

had

been

improperly
giving

that

believe

Failure

To

fourth

that

question

respondent's
complainant
complainant

had

management
as

had

an

filed

an

he

White,
who

person

the

employer
An

matter

the

i05(c)(i)

section

Complaint

After
raised
violated

after

employee
a
complaint

by

facts

in

section

improperly

dis-

its

management

became

i05(c)(i)

is

proceeding

this

i05(c)(i)

management
under

been

Filed

Was

the

have

MSHA.

to

section

the

simply
nothing

had

he

because

accident

the

reported

that
had

doubtless

respondent

that

shows

above
of

White

that
would

matter

employer
his
employee
reported

and
If

stated

he

when
whole

who

instance

first

attention.

any
him

with
of

he

that

his
accident.

the

in

complainant

the

relationship
question

accident

the

that

the

that

raised

of

reporting
extent,

convince

reported

employee

is

•he

harmonious

a

violation

Complainant

Retain

had

discussion

the

to

that

his

assure

to

such

foreman

he

charge
maintaining

in
complainant
that
complainant

that

to

complainant's
complainant's

essential
that

the

believed

retain

said

argument.

mind

was
no
longer
employer
believed
that
White
told
complainant
the
do
with
accident,
to
reporting
2.
laid
to
rest
on
July

whether

be,

the

about

accident

come

business"

of

Bunch

the

had

damn

remark

complainant

have

Ben

would
he

matter

discussed

absolutely

have

The

own

respondent's
complainant's

to

charged

or

get

to

would

have

to

that

by
on

interested

I

White

and

accident.

wanted

would

make

If

complainant
fired,

your

convince

to

said

he

more.

claims

run

had

references

it

been

subject
to

effort

begun

had
White

morning.

the

believed

for

reason

complainant
an

The

the

no

that

for

when

ness

is

stay
fit

reason

had

that

around

next

the

want

no

effect

that

ahead

complainant's

both

doubt

sensi-

his

and
employees
260;
255;
252;
242;
quoted
correctly
hire

"Go

for

than
higher
who
reported

to

reason

Moses
to

reason

no

go

person

little

is

feeling

the

the

the

there

effect,
with

been

not

is

would

work

to

did

he

White

there

Finally,
testimony

there

Otherwise,
told

he

that

claimed

(Tr.

Dorothy
complainant

told

White

to

that

of

because

remark
freedom

interference

believe

I

reason,
that

was

a

his

MSHA's

without

such

influence

to

attempts

the

inspectors.
make

would

have

motivated
by
certainly
this
in
the
complainant
husband,
to
White
heard
she
complainsay
checks"
(Tr.
write
I
your

that

damn

them
White

business

his

on

carry

believe

reason

for

that

conclude
MSHA's
about

170).
tivity

ant

is

work

don't

behalf

to

would

conversation

the

Moses

her

of

on

the

concerning

allegations
that

likely
Dorothy

not

While

testifying

in

White's

about
is

it

did.

it

as

self-interest

ant,

heard

had
complainant
the
of
accident,

what

care

when

it

refused

of

the

aware

of

the

to

fact
Act.

Section

i05(c)(I)
has
employee

the

an

employer

instituted

any

prohibits
"*

*

*

from

discharging
under
proceeding

because

employee

an
or

related

this

to

Act."
have
found
in
the
first
instance
that
I
Although
respondent's
foreman,
when
told
he
to
on
discharged
complainant
3, 1979,
McClure,
July
complainant
that
if
had
the
I
in
the
not
to
believe,
alternative,
respondent
go
house,
of
on
because
discharged
complainant
3, 1979,
respondent's
July
suspicion
had
that
accident
to
an
complainant
reported
MSHA, respondent's
management
when
it
learned
of
the
of
the
about
was
on
or
obligated
filing
complaint
call
to
back
and
he
had
misto
work
that
July
9, 1979,
complainant
explain
filed
of
under
that
a
an
erroneous
complaint
takenly
discharge
impression
had
him
the
McClure
3 when
McClure
told
him
to
to
on
discharged
July
go
had
house.
for
his
McClure
no
failure
retain
as
to
explanation
complainant
that
he
had
become
of
of
the
an
the
aware
except
filing
complaint
employee
before
the
D-9
from
the
had
been
returned
Caterpillar
operated
by complainant
foreman
"I
think
In
we
fact,
respondent's
stated,
repair
shop.
specifically
could
work
out--if
he
hadn't
filed
the
Find(Tr.
241;
something
complaint"
14, supra).
ing No.
if

Even

dance
and

all

of

respondent's

with

the

evidence
version

in
of

this
the

proceeding
events

after

is

interpreted
before,
respondent's
mine,

which

occurred

in

accor-

during,

of
the
eviat
complainant's
period
employment
that
into
the
allowed
to
catewas
complainant
unequivocally
pass
of
because
had
been
an
respondent's
unemployed
solely
gory
person
management
that
had
filed
advised
discrimination
a
complainant
against
complaint
respondent
under
section
of
the
If
it
Act.
as
i05(c)
respondent's
management,
had
he
not
on
was
discharged
claims,
actually
complainant
July
3, then
entitled
be
called
back
when
the
D-9
to
to
work
on
Juiy ii,
1979,
Catepillar
he
had
been
returned
the
mine
failure
to
site.
was
Respondent's
operating
violation
of
to
retain
direct
as
a
an
complainant
therefore,
employee
was,
the
in
that
section
an
not
an
i05(c)(i)
employer
discharge
prohibition
may
because
he
has
the
instituted
under
Act.
a
employee
proceeding
dence

shows

Given

Reasons

by Respondent

for

Discharging

Complainant

Unskilled

forced
take
alternative
to
was
Respondent
positions
Operator.
first
defense
the
is
that
it
to
Respondent's
proceeding.
Complaint
did
foreman
admitted
that
not
complainant.
Respondent's
complaindischarge
had
when
the
Becks
Creek
ant
not
left
or
voluntarily
resigned
complainant
quit
that
had
is
not
It
a
191).
(Tr.
job on July
3, 1979
fact,
however,
respondent
of
had
the
he
left
the
the
time
time
to
a
on
job from
job site
July
3, 1979,
up
is
able
the
which
held
November
was
on
77).
(Tr.
18, 1980
hearing
Respondent
for
that
it
failed
to
account
lack
of
a
complainant's
job only
by saying
just
call
the
him
back
after
the
D-9
he
had
been
returned
to
to
was
job
operating
after
site
241).
(Tr.
being
repaired
in

this

had

Respondent
its
it

claim
gave

of
several

not

the
conclusion
reached
apparently
would
discharged
having
complainant
for
reasons
complainant
discharging

the

before

rejected.

be
if

it

were

that
hearing
Therefore,
held

that

complainant

charging
dent's

a

makes

gated
hired

complainant

after

operate

a

did

just

realized

had

and

the
all

I

D-9

Caterpillar

received

in

copies
of

1976

period
repair

repair

repair
1979
through
as
requested

1976

66A7485
66AI1561

Not

90V2938

Not

by

i/

The

Years

the

repair

for

1979

and

disparity

bill

1978

1979

$5,174
4,289

$5,075
8,161
2,288

$

9

three

its

284).

and

have

they

decision.

this

results:

following

by

forth

respondent

for

at
my

figures

total

of

those

and

that

several

amounts

were

the

credits,

whereas

respondent's

16,

on

the
attorney

of

9

i/
be

borne
June

1980,

$80,157.67.
respondent's
bills

repair
may

have

the

added
I

as

added

can

attorney
credits.
the

that

mind

in

1979.

28,

counsel

respondent's

by

counsel

respondent's
amount

shown

May

December

on

that
a

from

$33,619
28,141
36,680
$98,440

through

should

it

above,

Numbers

7,562
15,691
34,383
$57,636

"$15,524

$9,472
set

states

arrived

between

1977

submitted

letter

with

data

worked

only

cover

$15,808
Supplied
Supplied
$15,808

the

examines

complainant

repair

its

Serial
Nos.

one

200;

Repairs

Caterpillar

When

them

of

(Tr.

on

of

the

on

increased

(Tr.

part
show

all

about
bills

data

the

of

for

first

the

rough
operated

equipment
respondent

its

on

dozer,

a

simultaneously

Total

Total

a

of

tore

shop

claims

its

bills
in

of

tabulation

Cost

Serial

until
not

was

he

that

and

worked

of

evidence

in

and

examination

Close

me

the

submitted

and

identified

MSHA

(an

operator

that

respondent's

of

the

for

tractors

counsel

had

he

unnecessarily
complainant

was

the

complainant

accuracy
send
to

respondent

Respondent's
been

the

but

abilities

poor

a

as

who

repairs

the

that
that

period

check

to

sometimes

were

claimed

the

during

asked

bills,

them

Respondent

order

In

of

all

that

badly
199-202).
(Tr.
dramatically
246).
so

investi-

243-244).

complainant
categorized
only
a
was
that
"cowboy"
claimed
complainant
also
contended
Respondent
262).
(Tr.
244;
equipment
tractors
D-9
Caterpillar
of
three
respondent's

but

knows

and

it

complainant

that

as

to

have

him,
hiring
brother-in-law

complainant's
into
check
complainant's

not

driver

do

to

should

he

before

dozer

not

Respondent

up

245).
from

complainant
(Tr.
operator

hired
dozer

proficient

to

that

said

a

as

place

one

how

and

do

to

Respon-

dozer

a

from

ground

what

dozer.

a

complainant

described

White

White

pressure

thathe

had

he

(Tr.

ability
under

and

inspector)

knows

"tick"

dozer

a

complainant's

dozer

operator

of

dis-

for

reason

describe

would

level

on

primary

operator

he

that

operator.
around

a

dozer

a

dozer

a

move

whereas

another,
what

could

who

person

than

rather

driver

dozer

unskilled

an

was

said

White,

Pascual

co-owner,

he

that

was

and

first

The

complainant.

discharge

did

respondent

costs

repair
for

account

only
I

credits.

the

by noting
subtracted

Although

comPlainant
of

dates

June

28
from

shop

repair
It

rough

the

he

that

caused

all

to

spend

have

entire

90V2938.

it

repair

total
newest

costs

and

1978,
significant
the

involved

in

totaled

very

the

the

looking

by

totals

complainant

torn

up

them

and

the

the

in

which

the

the

shown

in

incurring
been

for

last

column

small

it

of

be

the

that

a

was

if

seen

period
Caterpillars

the

study,

of

the

the

in

3-year

the

in

it

the

may

the

each

on

involved

most,
on

dozers

dozer

repairs

years
the

the

spent

the

on

each

The

all

used

Serial

during
Caterpillar

repairing

after
had

repairs
on

with
that

being

It

respondent,
to
respondent

show
in

spent

so

time.

for

caused

respondent

was

the

Caterpillar

was

$2,288

all

worked

newest

repairs

of

for

that

of

was

repairs
analysis.

same

the

at

supplied
of
$34,383
Caterpillar

of

comparative

much

the

extensive

cost

between
was

hearing

rebuilt

of

aspect

total

work

not

operating

was

complainant

be

to

of
$9 and
respectively.

repair

by

the

require

in

Another

that

for

to

1977

examines

period
have

the

Since
for

three

to

bills

did

he

the

at

all

kept

dozers

a

years

seen

8-week

repair

amount

one

the

1979,

of

reasonable

he

he

3,

dozer

ii.

contention

in

The

the

July

to

July

on

because

that

$54,000

year

No.

28

three

90V2938.

No.

June

dozers

alleged

was

July

3

respondent's

was
on

discharged

was

and

as

be

may

tabulation

above.

Respondent's
has

be

to

in

a

3,000
every
the
dozers
are

assuming
Therefore,

the

1979

if

year,

week.
overhauled

in

and

McClure

1978.

dent's

rebuilding
bills

dozers

in

1977

been

respondent,

rebuilt

to

of

a

would

have

needed

rather

hours

hours

per

its

engine

during

the

the

dozers

years
had

of

engine

1977
been

hours
(Tr.
223).
3,000
Responand
the
of
cost
engine
$37,000
about
is
The
(Tr.
266).
shop
$17,000
to
show
that
the
was
on
enough
spent
to
the
time
that
complainant
began
is

new

prior
claim

that

before

shortly

40

have

to

two

on

Caterpillar
2,000
working

for

year

constantly

engines

own

a

are

another

fail

support

replaced

or

each

lasted

cost

There

weeks

the

respondent's
by respondent
or
in
1979,

in

1978

or

that

hours.

50

used

have

the

submitted

for

working

claimed

that

used

been

should

engine

an

repair

had

and
said

owner

had

it

testified

McClure,
4,000

to

Caterpillar

new

also

rebuilt

recently

Richard

foreman,

overhauled

the

engines

complainant

on

began

two

dozers

working

for

of

respondent.
The

witnesses

plainant's
best
to

dozer
be

a

equipment
I

"cowboy"
(Finding

conclude

complainant
if

that

were

White,

of
on

not

the

only

Language
testified

had

ever

Both

seen.

and

operator
19

the
so

by complainant's
complainant

that

the

Nos.

that
is

Abusive
Pascual

they
kind

average

called

were

testified

operator

an

not

was

who
both

case

equipment
and
20,

both
and

of
that

was

of

support
poorest

considered

stated
did

that
not

see

com-

nor

complainant
complainant
him

abuse

the

supra).

preponderance

of

the

poor
consideration

operator

of

equipment

and

Bad

Attitude

that

complainant

an

in
the

them

them

they

counsel
neither

being

used

Toward
has

evidence

to

that
finding
justify
discharge
the
discharge.

supports
as

warrant

to

his

Respondent's

Supervisors.
the

worst

a

attitude

toward

owner,
his

of
his
21
him
had
work
for
he
has
ever
during
years
anyemployee
it
also
made
Richard
McClure,
(Tr.
foreman,
260).
Respondent's
constructive
criticism
220).
take
well
to
(Tr.
not
does
complainant
stated
that
McClure
that
was
complainant
discharged,
complainant

of

employer
experience
that

clear
the

On

day

called

both

record

(Tr.

White

206;

236).

refer

to

"what

talking

his

to

which

names

190;
to

necessary
used
in

and

him

did

McClure

During

his

testimony,

sit

on"

in

(Tr.

12;

70).

you

foreman

wish

not

to

state

found

complainant
of

lieu

it

he

which

word

actual

the

the

on

does
claim
that
complainant
The
respondent's
record,
therefore,
supports
White
the
other
his
On
in
with
hand,
supervisors.
talking
language
rough
what
known
have
laborer
and
must
in
1970
back
as
a
complainant
employed
1979
in
he
(Finding
he
when
was
of
complainant
reemployed
hiring
person
that
of
the
reasons
While
the
record
shows
one
respondent
supra).
2,
is
who
an
that
was
for
brother-in-law,
complainant's
complainant
hiring
that
to
him
hire
I
am
asked
to
unwilling
accept
complainant,
inspector,
second
time.
a
sole
for
the
reason
as
complainant
hiring
respondent's

use

had
sort
No.
gave
MSHA
excuse

One

for

reason

respondent's

for
could

have

a

of
the
MSHA pressure
rejection
that
White
of
is
complainant
to
assigned
inspect
inspector

my

hiring
different

argument

the

as

that

stated
his

he
if

mines

reason

he

knew

asked

he

which
of
bias
because
or
different
a
prejudice
inspector
any
assign
declined
hire
to
(Tr.
260).
if
Bunch
complainant
Ben
respondent
display
might
in
this
testified
who
the
MSHA
prosupervisor
Howard,
inspector
Additionally,
where
examine
mines
to
did
not
that
stated
MSHA
assign
inspectors
ceeding,
that
that
was
if
MSHA had
relatives
were
the
knowledge
working
inspectors'
considerable
showed
a
owner
No.
Respondent's
(Finding
17, supra).
occurring
with
deal
know
how
to
and
would
about
prejudicial
agencies
regulatory
expertise
that
and
had
felt
hire
declined
to
if
he
had
complaincomplainant
inspections
violations
at
find
to
thereafter
brother-in-law
was
ant's
trying
deliberately
retaliation
from
be
written
not
which
would
mine
normally
apart
respondent's
brother-in-law
270).
(Tr.
refusal
hire
to
an
for
an
inspector's
employer's

MSHA

to

in

1970,

the

of

view

In

that

believe

I

that

fact

had

complainant

the

fails

record

to

for

worked

previously

that

finding
rough
language

support

a

respondent
complainant

his
and
of
of
his
account
use
on
discharged
had
been
attitude
and
bad
the
if
his
attitude
toward
rough
language
employer
of
the
much
the
to
considerations
the
discharge.
Moreover,
leading
up
only
to
from
resulted
and
attitude
attempt
bad
improper
respondent's
language
poor
MSHA.
accident
the
to
I>-6
had
find
whether
out
reported
complainant
have

would

Relief

Sought
relief

The
to

his

proceeding
paid

job
is

for

a

all

shows

exhibit
the

requested

former

was

less

been

than
exact

40

and
copy
hours

that

of

be

he
the

of

hours

all

awarded

payroll

data

from

May

worked

respondent
other
during

hours

number

that

which

worked

that

is

Complaint

the

in

9,

more

showing
1979,
than
Since

weeks.

complainant

76.1

back

the

hours

40
it

would

is

Exhibit

amoUnt

through
not

have

reinstated

be

complainant
benefits.

in

this

complainant

28,

1979.

June

during
possible
worked

H

that

estimate

to

had

That
weeks

some

he

remained

and

respondent's

on

back

40

$60

day.

per

hours

Exhibit

pay.
total

a

as

complainant's

of

amount

net

Interest

amount

date

of

payment

and
half

for

he

has

a

40-hour

a

40-hour

of
the

will

his

week,

if

interest

period

also

be

will

be

by

to

expunge
1979.

3,

July

on

Section

105(c)(3)

attorneys'
complainant's

fees.

had

been

30

hours

this

on

conferences

with
and
asks

attorney
have

percent

Matthews,
not
provide
difficult

in

that

received

The

of

ordered

3,

no

courts

(Kiser
411

F.
an

he

the

no

or

purposes

added

to

the

interest

as

assume

that

computing

total

percent

on

to

reimburse

1979,

if

had

not

been

from

its

files

Act

According

attorney,

denied.

witnesses,

35

if

instructed

discharge

for

entitled

be

July

which
would
by any
hospitalization
if
he
had
been
not
employment
discharged
should
be
increase
in
complainant
paid
any
been

computing
hour,
of

amount

an

the

covered

have

andother

elect
wishes,
between
halfway

to

the

3,

$223.20

amount

accu-

the
and

the
be

may

provides
the

to

charges

have

been

July

on

all

for

applicable
3, 1979.

to

to

complainant

have

been

been
him

during
Additionally,
which
complainant
Finally,
respondent
to
complainant's

references

submitted

medical

any

have

rate
hourly
discharged.

letter
would

for

would

costs

to
on

made

be

December
if

the

reimbursed

24, 1980,
Complaint

states
that
he
Complainant's
between
25
and
attorney
spent
time
in
in
case,
including
spent
drafting
correspondence,
his
and
other
in
complainant,
of
wife,
procurement
persons,
at
the
representing
complainant
hearing.
Complainant's
he
be
hour
in
view
of
the
fact
that
he
paid
$i00
would
per
if
had
not
payment
complainant
prevailed.

discount
the
time
normally
v.
364
F.
Miller,
Supp.
1059
(D.D.C.
1976)).
Supp.
exact

breakdown

of

in

by from
and
Parker
1973),
Since
counsel
complainant's
time
in
as
spent
conferences,
opposed
the
at
find
I
complainant
hearing,
spent
1311

conferences

20

(D.D.C.

v.

did
to

such
as
work,
that
representing
be
for
25 hours
of
work
instead
of
30
hours.
paid
The
courts
have
also
allowed
a
than
amount
otherwise
be
higher
when
hourly
might
appropriate
an
has
to
client
for
a
if
attorney
the
client
agreed
does
represent
nothing
not
the
on
that
will
be
prevail,
incentive
theory
an
lawyers
thereby
given
to
with
little
income
or
no
represent
538
persons
(Torres
v.
F.2d
i0
Sachs,
(2d Cir.
For
the
1976)).
find
I
that
foregoing
reasons,
complainant's
should
be
hour
for
25
hours
of
attorney
work
in
paid
$i00
per
representing
in
this
Inasmuch
complainant
as
has
not
proceeding.
complainant
paid
any
fees
and
not
was
attorneys'
to
if
he
lost
his
obligated
pay
any
case,
my
order
will
to
the
fees
require
to
respondent
comattorneys'
pay
directly
counsel.
plainant's
he

should

be

to
it

1979,

amount

complainant
those

his

would

ta•

per

involved.

July

since

i0

of

for

it

generated

was

$7.50

leaving

should
of

difficulty
may,

paid

that

week.

percent

i0

for

was

check

find

I

time,

present

accommodatioin

complainant

for

the

incurred

that

from

for

pay
the
of

Respondent
costs

$76.80

the

to

reasonable

a

made

respondent

back

is

were

amount

week,
of

computed

shows

avoid

to

each

full

also

pay

the

in

order

In

mulates

H

week

1979,

29,

June

each

Deductions

•

in

paid.

from

payroll

for

payment

to

it

WHEREFORE,

on

is

ordered:

The
(A)
Complaint
24, 1979,
September

(B)

Discharge,

(i)

Reinstate

(2)

within

30

of

relief:

complainant

Pay

from

for

etc.,

tax,

(3)
complainant

to

his

the

given.
of

date

former

this

decision,

equivalent

or

have

and

a

higher

at

position

for

any

July

3,

on

3,

July

complainant's

or

if

he

payment

had

bills
would

which
have

discharged.

records

personnel

deduc-

bills
been

not

have

would
less

hospital

such

the

all

references

1979.

to
William
E.
(5)
Pay
40701,
Corbin,
Kentucky

Building,

medical

1979,

for

week
at

complainant
on
3),
July
proceeding.

this

if

insurance

40-hour

a

of

if

rate

in

of

date

discharge
H

after

from

Expunge

his

complainant
incurred

by hospitalization

(4)
discharge

for

basis
the

including
hourly

Exhibit

in

the

on

wages

to

but

shown

as

Reimburse
may

covered

his

from

filed

Interference

or

hereinbefore

reasons

days

to

back

complainant
July3,
1979,
period
of
hour
rate
(or at
$7.50
per
received
increase
in
an
salary
the

been

the

mine.

respondent's

tions

Discrimination,
for

granted

Respondent
shall,
the
following
types

out

carry

of
is

Hensley,
attorney's

First

Esq.,
fees

Richard

C.

Administrative

(Phone:

Bank

National

in

the

amount

of

&

Trust

$2,500.

Steffey
Law
Judge
703-756-6225)

Distribution:
William
&

E.
Trust

David
117

Assistant
4015

Hensley,
Buildng,

Patrick,
Short

Esq.,

P.S.C.,
Street,

40701

KY

Attorney
P.O.

for

Attorney

Corbin,

9,

Box

for
Whitley
Harrodsburg,

of
the
Office
Solicitor,
Boulevard,
Arlington,

Wilson

Special
Investigation,
Boulevard,
Arlington,

MSHA,
VA

U.S.

Elias

Solicitor,
VA

763

National

Bank

Mail)
Development
KY

U.S.

40330

Corporation,
(Certified
Mail)

Department

of

4015

Wilson

22203

Department

22203

First

Moses,

(Certified

of

Labor,

Labor,

FEDERAL

MINE

SAFETY
OFFICE

AND

OF ADMINISTRATIVE
2

SKYLINE,
5203

FALLS

MARK

HEALTH

Behalf

S.

J.

LAW

lOth

FLOOR

LEESBURG

PIKE

CHURCH,

VIRGINIA

SEGEDI,

On

REVIEW

COMMISSION

JUDGES

22041

for
Application
of
Discrimination

Review

Docket

80-273-D

of:

EZARIK, E. P. AVERY,
A.
ANTANOVICH, E. H. ROSEMIER, JR.,
M.
ZOLDAK, J.
OLESKY, C. AVERY,
W.
E.
CLARK, L. CASPER, F. PAULISH,
A.
R.
BARKER, A. RUSILKO, B. G.
R.
C.
L.
MILLER,
FILBY,
PHILLIPS,
A.
J.
D.
W. CLARK,
SEYKOSKI, JR.,
C.
J.
T.
L.
ZUKAUCKAS, S. A. JESTAT,
W. L.
PYSH, J. M. JIBLETS,
BROWN,
S.
T.
FORTE, G. J. EVANS, K. R.
J.
WATKINS, J.
KURUCZ, M. L. HOYT,
T.
J.
SMITH, D. WYTOVICH, R. D.
STAUFFER, R. T. HARRIS, D. PHILLIPS,
F.
PABIAN, G. R. WHEELER, C. J.
ROCCO, T. M. BURGER, C. ZUKAUCKAS,
R.
MULAC, T. P. GRIMES, S. CLARK,
S.
L.
T.
DURKO, JR.,
PRUSKI,
F.
J.
PERRI,
VIARA, W. WHITE,
N.
C.
S.
GURIEL, J.
FIEM,
ROBERTSON,
C.
J.
WASHLACK, R. B. TAYLOR,
J.
R.
L.
FIDAZZO,
EMERY, R. A.
T.
CHANEY, L. T. BIZET,
TAYLOR•
F.
DI BASILIO,
J.
ANTANOVICH,
J.
S.
FIDAZZO,
KOTCHMAN, C. E.
E.
G.
MONTGOMERY, J.
CARNATHAM, J.
ZERAMBO, R. S. MARTOS, A. J. MARTOS,
C.
M.
K.
E.
J.
VILCESK,
WILEY, J.
STEPKO, F. V. FEMIA, S. W.
S.
S.
FERCHINSKY,
EZARIK, J.
GLEMBA,
T.
E.
A.
R.
ZGORLISKI,
FIEM, R. L.
J.
SCICCHITANO,
STEPKO, R. HOPKINS,
P.
A.
SKIRCHAK, L. N. HRUTKAY, G. C.
D.
L.
DENNY, G. BOSTICH,
TIBERIE,
J.
H.
J.
F.
ZAMISKA,
PIASECKI,
R.
J.
L.
GATLING, B. F. VISCHIO
ANTANOVICH, J. S. KUBOVCIK, N. BOSIC,

:

:

:

:

:

:

:

:
:

,

:

764

Somerset

No.

PENN

No.

60

Mine

M.
E.
E.

REBICH, L.
J.
LACOCK, M.
AMBROSEY, J.
J.

PUSKARICH,
J.
E.
R.

G.

K.

L.
LINNEN,
M.
DERESH,
J.
E.
MAIN,
G.

G.

J.E.

J.
E.
RADOS,
L.
ROSSERO,
THOMPSON,
A.
DI
BASILIO,
KISKI,
J.
DI
J.
BASlLIO,
TOTH,
L.

MC

JOHNSON,

J.

G.

A.

AMBROSY,

W.

H.

TIMLIN,
and

MOTICHAK,

JR.,
POYE,
R.
KENNEDY,

T.

R.

KARPOFF,

J.

HUEY,

:
:
:

E.

DEAN,

KETA,
Complainants

:

V.

CORPORATION,
Respondent

MINES

BETHLEHEM

:

DECISION

Costello
J.
Yablonski,
Yablonski,
Esq.,
King,
for
the
Complainants;
Pennsylvania,
Washington,
Bethlehem
Mines
Thomas
W.
Ehrke,
Esq.,
Corporation,
for
the
Respondent.
Bethlehem,
Pennsylvania,
Kenneth

Appearances:

&

Leckie,

Before:

I.

Cook

Judge
Procedural

Background

in
the
filed
discrimination
Mark
a
complaint
1980,
Segedi,
of
148
miners
behalf
on
(Complainant
proceeding
s ) alleging
Of discriminacommitted
Mines
acts
that
Bethlehem
(Respondent)
Corporation
and
Health
the
of
Federal
Mine
section
violation
of
tion
in
i05(c)(i)
Safety
The
Mine
III
§ 801
30
U.S.C.
Act
of
et
Act).
1979)
(1977
(Supp.
1977,
seq.
Commission
Review
Mine
and
Health
with
the
Federal
filed
was
Safety
complaint
of
the
1977
Act
a
Mine
section
to
i05(c)(3)
following
(Commission)
pursuant
AdmlnistraMine
and
Health
Labor's
the
of
determination
Safety
Department
by
discrimination
had
The
that
of
section
occurred.
tlon
violation
i05(c)(i)
no
follows:
in
as
complaint
states,
part,
On

June

30,

above-captioned

i.

Federal

The

(Commission)

has

and

Safety

Mine

Health

over

the

(Complainant)

is

jurisdiction

Review

subject

Commission

of

matter

this

case.

2.

Mark

tion

3(g)

UMWA

Local
3.

Segedi,
the

of

Union

Exhibit
the

names

Section

3(g)

of

the

7:00

and

a.m.

is

miner

a

in

defined

Secof

Committeeman

Safety

elected

an

1197.

A,

contains

on

Act

the
shift

and

attached

hereto

the

complainant

of
Act

who
on

were

January

made
miners
and

present

30,

1980.

a
as

part

hereof,
in

defined

prepared

to

work

4.

Box

5.

6.

7.

filing

Mark

Segedi

8.

On

work

refused
Otis

the

7:00

to

safe

been

is

the

to

4:00

to

the

mine

elevator

mine

operating

men.

delegated

1980,

a.m.

enter

Mines

superintendent

of

the

members

of

their

behalf

in

by

act

on

MSHA.

30,

January

the

580

aforesaid

with

Bethlehem
by the
Pennsylvania.

underground

an

[sic]

has

1197

Complaint

a

is

McGlothln

#60.

Union

owned

Four,

employing

Mine

UMWA Local

is

#60

Mine

day,

a

Charles

Somerset

to

#60

Eight

Somerset
shifts

three

Mine

143,

Somerset

Corporation,

the

aforesaid

p.m.

shift

because

failed

the

close

to

miners

automatic
and

properly

scheduled

Mine#60

Somerset

at

guard

door

operate

in

on
a

manner.

9.

Angelo

attempted
it

use

lower

to

i0.
sonnel

to

slope

or

The

miners

were

ride

the

7:20

tion

Federal
and

mine

told
into

walk

into

foreman,
and

but

the

mlne

by

walk

in

thereafter
refused.

men

management

perof

the

mine

by

the

mine

by using

Cantinl

informed

was

problem
and
problem

handrails

the

foot

use

the

sometime

the

at

Local

refused

President
make

to

the
broken

were

paths.

arrived
UMWA

by
he

but

the
in

Inspector
he

that

accumulations

the

the

to

unsafe

was

ice

were

a.m.

of

refused

it

of

the

then

elevator,

men

12.

Hrutkay

into

plant
manually

home.

The

there

doors

elevator

miners

because

slope
and

cleaning

the
the

go

ii.

Giacomantonio,

close

to

thereafter

an

left

mine

at

Lloyd
investigathe

mine

premises.
13.
of

Otis

At

doors

and

At

that

the

a.m.

on

told

that

them

The

15.
the

Company

made

8:30

in
men

an

their

Safety

effort

entered

the

pay

some

elevator

resolve

men

to

enter

would

be

docked

then
the

dispute

mine.

"

1980,

30,

the

766

representative

a

the

to

safe

was

January

Committeemen
to

30, 1980,
repairs

January

on

representatives

advised

ment

a.m.

determined

14.
merit

8:10

Elevator

the
the

and

use.

mine
mine

until

met

automatic
to

managebut
also

8:30

a.m.

with

mine

manage-

at

i0:00

a.m.

16.

by

the

On
UMWA

Field

Office

of

17.

On

C.F.R.

equipment
18.

On

personnel

I,

and

issued

of

service.

filed
was
complaint
Washington,
Pennsylvania

the

1980,
a

the

mine

February

5,

concluded

closed

written

a

at

MSHA.

because
out

1980,

Committee

February

investigation
30

31,

January
Safety

there

Part

operator

failed

to

if
was

John

under

1980,

that

manually

Inspector

citation

the

the

Federal

shaft

take

office

doors

and

an

unsafe

Subdlstrict

guard

violation

no

made
Poyle
75.1725(A),

could

be

citation

the

was

vacated.
19.

legal

the
district
received
3, 1980,
manager
O.
Adminlstrator
for
Coal
Joseph
Cook,
Health
75.1725
which
stated
that
concerning
automatic
doors
was
a
violation.
manually

and
the

operate
20.

In

with

the

Mine

the

aforesaid

January
alleging

March

a

from

opinion
Safety

Mine
to

On

February,
Safety

1980,
and

miners
1980

30,

on

that

the

On

May

Mark

Health

scheduled

against
Company

work

to

the
had

filed

Segedi
on

Bethlehem
violated

Complaint

a

Administration
the

on

behalf

of

7:00

a.m.

shift

Mines

Corporation
of
i05(c)

Section

the

Act.
21.
istration
a

30,

1980,

determined

letter

dated

Segedl

advised

was

22.

May

that

30,
of

the
no

1980,
the

Mine

Safety

violation

had

and

received

The

aforesaid

Mines

in

unsafe

and

because
Corporation
conditions.
unhealthy

the

were
Complainants
protected
activity

miners

4,

full
the

back

pay

discrimination;
date

and

benefits
employment
award
of
(3)an
is
tendered;
pay
records
employment

refusal

Prior

they
of

which

to

by
of

be

time

engaged

Act.

(I)

a

the

finding
Respondent

the

1977

to

pay
due

the

added

to

lost

were

the

at
were

the

by
work

to

and

to

against
I05(c)

interest

Mark

against

their

The
for
relief
Complainants'
prayer
requested:
were
discriminated
Complainants
unlawfully
against
in
under
section
engaging
activity
protected
i05(c)
the
of
order
(2)
an
the
entry
directing
Respondent
of

in

1980,

decision.

of

Section

Adminand

discriminated

were

discriminated
under

Health

June

Administration's

Bethlehem

in

and

occurred

to

all

that

the

for

Mine

Act;
Complainants
the
alleged
back

pay

acts

until

such
back
of
(4) the
order
an
that
entry
requiring
be
cleared
Complainants'
of
all
unfavorable
references
the
activities
that
occurred
on
concerning
of
(5) the
January
30, 1980;
entry
order
an
the
and
to
desist
cease
all
harassment
of
requiring
the
Respondent
because
said
harassment
has
Cemplalnants
a
the
effect
chilling
upon
Complainants'
contractual
and
refuse
to
to
work
where
there
legal
right
aresafety
and
health
and
of
assessment
hazards;
(6) the
an
civil
appropriate
penalty
the

for

the

Respondent's
protected
by

rights

On July
as

18,

unlawful

1980,

the

I.

2.

the

Respondent
of

provisions
3.

this

facts

denies

has

been

and

Health

a

this

Respondent

issue

entitle

answer

exercise

of

Act.

which

inpart,

states,

by

requests
tionfor

Review

August
on
hearing
was
hearing
participating.

the

names,

the

that

that

and

this

MSHA

I05(c)

denies

that

harassment
has

of

a

upon

all

com-

Mine

revlew

of

the

determined

circumstances

Complainants

this

the

occurred.

not

to

the

ever

of

properly

had

the

of

incident

investigation
investigator

special

of

part

are

any

this

an

incident,

any
under

references"

30, 1980
complainants.

regarding

Section

committed

"unfavorable

denies

a

it

protected

Act.

any

listed

therefore,

relief

related
of

any

the

to

relief

be

18,

1980,

the

merits

held

that
all
respectfully
requests
in
[sic]
Complainant's
Appllcabecause
without
merit.
are
they

contained

as

denied

notice

a

of

scheduled

with

held

discussions

were

concerning

number

of

hearing
15,

September

on

undersigned
the

dis-

Complainants.

for

On

of

acts

any

activities

that

by

committed

Administration

the

Respondent,

their

an

denies

January

states

of

6.

Various

the

made

violation

requested

and

of

of

surrounding

that

it

that

incident

Respondent

5.

that

further
Respondent
by Respondent
is
or
occurring.

occurred

hours

and
the
January
30, 1980,
each
The
Complainant.
parties
of
an
appropriate
stipulation.
1980.
The
information
requisite
"complainant
status
summary,"
A.
Appendix
on

Mine

complainants.

the

records

4.

plaint
Safety

denies

Respondent

Complainants

ties

Complainants'

1977

filed

specifically
concerning
of
i05(c)(i)

discrimination

concerning
employment

The

the

Respondent

Respondent
involving

of

acts

and

of

follows:

crimination

for

withthe

interference

i05(c)

section

the
the

that

The

a

in

scheduling
Washington,
of

representatives

on

precise
agreed

issued

was

1980,

record

between

number
precise
each
Complainant

number
to

of

was

scheduled

back

filed

set

forth

in

an

copy

of

which

is

attached

768

for

the

to

by
on

November

to

this

the

document

attached

parand

claimed

pay

matters

is

case

Complainants

was

of

these

stipulation

counsel
of

hours

address

both

the

Pennsylvania.
parties
present

decision

work

by
filing
26,
styled
as

the
of
the
Following
presentation
schedule
a
set
for
the
evidence,
was
of
briefs
and
posthearlng
of
fact
and
conclusions
proposed
findings
law.
difficulties
However,
necessitated
experienced
a revision
by counsel
thereof.
Briefs
and
of
fact
and
proposed
conclusions
law
findings
of
were
filed
and
the
by the
Respondent
on
November
and
Complainants
3, 1980,
November
The
13, 1980,
and
the
respectively.
filed
Respondent
Complainants
briefs
November
on
and
December
reply
26, 1980,
I, 1980,
respectively.

filing

II.

Witnesses
A.

Complainants

The

Somerset

United

Mine

mechanic,
No.
1197;
United
tor

at

No.

1197.

Exhibits

Witnesses

the

at

and

called

No.
Workers
the

at

60

Mine,

of

America;

Somerset
L.

Harry

Mine

Workers

the

Somerset

Respondent
engineer
employed
at
superintendent
mechanic
employed
B.

Exhibits

i.

The

called

J-i
filed

Wage

Agreement

is

the

their

of
president
Gary Bostich,

60

the

copy

and

Mine,

its

Mark

60

Elevator

a

Paul

following

BCOA-UMWA

Vancura,

joint

of

Local
of

miner
for

Union
the

operaUnion

Local

electrical

assistant

mine
maintenance

a

exhibits

into

evidence:

Safety

Grievance

Bituminous

Coal

and

National

5,

or

for

Sutter,

Health
the

mechanic
District

director

an

the

Herbert

Standard

(1)

Section

III,

safety

Merrifield,

and
Mine;
Company.

1197,
repairman,

committeeman
the

to

mine

a

No.

maintenance

a

mine

a

Hrutkay,
Union

a
continuous
Segedi,
committeeman
safety

a

the

of

Article

Local

assistant

Neal

No.

Otis

Lloyd

witnesses

introduced

of

witnesses

Respondent;

Somerset

by

a

under

as

the

by

parties

Form

No.

as

and

Nicklow,
special
of
and
America;
No.
60 Mine,
and

The

1978.

J-2

is

a

copy

of

the

J-3

is

a

copy

of

a

J-4

is

a

copy

of

Citation

National

Bituminous

Coal

of

Agreement

Wage

1978.

§

75.1725(a),

issued
J-5

issued

by
2.

The

to

is

by
a

Federal

copy
mine

Mr.

is

a

William

copy

BCOA-UMWA

of

a

mine

February

inspector

of

a

626046,
inspector
6,

Alvin

introduced

Dupree,

Standard

No.

Federal

Complainants

U-I
Nicklow

of

letter
coal

1980,

Grievance

Form.

February

I, 1980,
Poyle.

John

N.

determination

30

C.F.R.

vacating

J-4,

Shade.

the

following

exhibits

dated

February
inspection

ii,
1980,
supervisor.

mine

769

into

from

evidence:
Mr.

Harry

U-2

is

Huntley,
Harry

U-3

is

Huntley,
Health,

from

Mr.

30

Coal

Joseph
forth

setting

a

O.

14,

April

Safety

1980,

Health

and

Mr.

from

District

Donald

2,

W.

to

U-I.

memorandum

dated

March

Administrator

Cook,
opinion

legal

a

dated
Mine

to

of

copy

a

letter

a

Manager,
in
reply

Nicklow,

Mr.

of

copy

a

District

3,

for

Mr.

W.

Donald

Mine

and

Safety
standard
safety

mandatory

concerning

for

1980,

Coal

§ 75.1725.

C.F.R.

U-4

is

drawing

a

Mark

by

prepared

Segedl

the

during

of

course

his

testimony.
The

3.

III.

Respondent

did

not

all

of

introduce

evidence.

Issues

i.

Whether

2.

If

or

all

or

whether

such

refusal

the

of

Respondent's

at

the

Respondent's

at

any

elevator

Mine

any

elevator

automatic

was

Complainants

refused

to

use

Somerset

60

on

January

No.
refused

Complainants
60

Somerset

No.

activity

protected

Mine

Mine

to

section

by

automatic

then
30, 1980,
of
the
i05(c)(I)

January

on

1980.

30,

Otis

the

use

Otis

the

1977

Act.

all
the
of
or
Complainants
Somerset
No.
60
Respondent's
refusal
was
activity
protected
by section
whether
the
discriminated
then
Respondent
of
the
with
the
exercise
rights
statutory
for
in
such
activity.
protected
engaging
3.

elevator

If

refused

any

Mine

at

4.
the

into

exhibits

any

If

the

exercise

retaliation

the

for

1977

Mine

IV.

Opinion

discriminated

Respondent

of

engaging
then

Act,
and

what

Findings

A.

Stipulations

i.

The

parties

entered

a.

The

Administrative

in

activity

is

the
of

the

Otis

30,

1980,

use

i05(c)(I)
against

or

of

Complainants

of

such

against
of

rights

statutory

to

January

on

or

any

protected
appropriate

the

1977

of

the

by

section

Act,

Mine

retaliation

in

otherwise

or

such

interfered

otherwise

all

automatic
and

with

interfered

Complainants
i05(c)(i)

in
of

the

remedy.

Fact

into

the

following

stipulations

on

September

1980:

captioned

b.
have
and

been
are

filed

currently

has

Law

Judge

written
grievances
United
by appropriate
resolution
pending

related

to

Mine

Workers

proceeding
Two

(Tr.

in

jurisdiction

the

above-

12-14).

in

the

this

grievance

i05(c)
complaint
representatives
(Tr.
13-14).
procedure

section
of

America

15,

The

c.

1980,

and

in

(Tr.

13-14).

e.

The

Somerset

30,

instant

case

1980,

of

the

to

The

a.

the

regularly
day in question.
have
plainants
b.
number

of

hours

number

of

hours

in
pay
Status

this

filed

affected

filed

complaint

crimination

properly

attached

scheduled

158

the

filed

June

not

been

The

attached

work

to

the

in

complaint

the

the

following

stipulations
A of

Exhibit

on

the

dis-

1980:

30,

Summary._i/ accurately

Status
Complainant
and
starting
scheduled
regularly
included.)

times

of

the

and

for

the

on

com-

the

reflects

accurately

Summary
paid

were

reflects

complainants
of
ineligible

times

starting

Status

Complainant
worked
complainants

the

of

tons

scheduled

30,

13-14).

appear

hours

(The

January

clean

discrimination

names

of

as
employees
(Tr.
13-14).

12,499,402

(Tr.

parties
whose

1979

employees

miners

the

on

in

produced

had

13-14).

26, 1980,
Complainants

November

respect

coal

Mine

(Tr.

all

606

employed

clean

60

No.

Segedl

Mine

of

Corporation

shift

behalf

on

On

2.

day

Mark

f.

60

tons

Mines

Bethlehem

1979

January

with

920,575

produced
d.

coal

No.

Somerset

the

on

in

day

question.
The

c.

attached
for

which

as

still

scheduled

Sick

and

Leave

agreement.
e.

transcript
an

as

eligible

of

the

complainants

the

reasons

pay
Status
held
the

If

it

of

hourly
A-Part

I

which

the

pay

due

A copy
of
decision

the

this

entitled

to

that

determined

wage
the

of

as

will

for

rate

collective
is

30,

Status

if

and

is

liable
in

permanent

job

1980.

Respondent
classification,
bargaining
agreement,
in
order
to
entitled,

as

Summary

and

for

which

any,

complainant

that

work

not

Personal

for

any

the

Complainant

Appendix

styled

"complainant

A.

771

status

the

hours'

classification

will

then

set

forth

by

the

multiply
in
number
the

determine

of
full

complainant.

document
as

the

determine

January

complainant
the

Complainant
of
hours,
bepaid.
number

Respondent

did

the

bargaining
compensation
payments.

workmen's

eligible

an

for

collective

the

the

is

the

of

received

utilize

who
as

pay.

eligible
Complainant

attached
such

sources,

provisions

should

is

other

work

the

complainants

ineligible

determining

complainant
Respondent
Summary,
on
by the
complainant

to

amount

to

for

any

Appendix

i/

Judge

on

seeking

considered

not

are

the

reflects

accurately
is
complainants

Summary

listed

from

not

listed

standard

hours

The
bases

these

pay
Vacation
did

complainant
f.

to

Floating
who

eligible

of

received

Others

Status

the

of

for

d.

Thirty-six
proceeding,
Certain
Summary.

Complainant
each

summary"

is

appended

B.

Discussion

The

activities

occurred
affected
work

to

7

a.m.

in

rise
the
instant
to
giving
the
at
30, 1980,
Respondent's
January
at
were
miner-complalnants
employees
the
shift.
scheduled
Their
day
regularly
8:15
The
facts
and
to
a.m.
surrounding
below.
paragraphs

the

I.

Activities

Hrutkay,
Lloyd
1197,
DistrictS,

dent's

Somerset

60

No.

Mine

Otis

the

the

transport

explain

that

the

miners
the

had

repairman

of

nature

the

problem
been

arrived

(Tr.

18).

were

times

circumstances

The

scheduled
from

ranged
forth

set

are

and

of

president
arrived

5:40

a.m.

Mr.

Thomas

contacted

but

down,"

that

1980

the

Huddock,

"gone

Union

Respon-

30,

January

on

had

Local
the

at

This
elevator
18, 51).
(Tr.
17-18).
Although
inform
(Tr.
38), he did

seam

had

who

Mine.

60

No.

mine

America,

by

(Tr.

discrimination

starting

elevator

a.m.

coal

Company
yet

of

automatic

the

mechanic

informed

was

3:20

to

not

mine
Workers

of

Somerset

a.m.

approximately

he

Elevator

Otis

shift

at

16-18).
Thereafter,
that
shift
the
lampman,
at
tioned,
approximately

7

to

Mine

day

a

United

(Tr.

not

Prior

Occurring

Mr.

No.

claim

on

midnight
malfunc-

or

is

used

to

Huddock

Mr.

the

did

Hrutkay

Mr.

elevator

e

6 a.m.,
Paul
Mr.
approximately
Vancura,
the
received
a
employed
by
Respondent,
telephone
to
unrelated
an
management
pertaining
problem.
the
located
rotary
dump equipment
underground
several
hours
earlier.
Mr.
Vancura
down,
gone
and
the
(Tr.
136-137).
investigate
problem
134,
At

Mr.

arrived

Vancura

mine

management
because
ground

was

doors

the

control

Mr.

proceeded
8

to

(Tr.

139).

Vancura

to

6:40
be

not

that

the

mine

to

At

that

to

go

under-

the

time,

Vancura

Mr.

with

determine

or

go

a.m.

able

Specifically,
trouble
having
to

mine

problems,

advised

was

from
informed

was

the

outer

of

cause

the

a

individuals

atop

foreman,
perform

the

elevator.

and

one

of

rather

noted

that

that

would

prevent

to

prevent

instructed

were

then

Vancura

a

and

condition

the

the

examination

thorough

of

were

elevator

from
people
machinery

elevator
to
the
proceeded
he
found
Mr.
Joe
There,
Wilson
Shop electricians.

the

doors

outer

the

Forte,
The

the

elevator

that

the

test,

he

three

(Tr.

141-143).

to
According
electrically
Neal
Merrifield,

the

elevator

inches,

Mr.

located

proceeded

with

home

encountered

would

asked

was

the

to

i0

to

Certain

electrical

137-138,

Vancura

Mr.

elevator.

room

chief

management

he

functioning.
were
they

that

Mr.

had

engineer
his

at

approximately

at

that
not

call

136-137).

Vancura

entering

mine

Vancura
was

level.

approximately
performing.

open
from

Mr.

elevator

mine

top

(Tr.

Mr.

was

by
the

at

problem

men

the

informed

the

at

advised

electrical

an

elevator
The

Mr.

Vancura,

sound

(Tr.
the

was

switch,

a

the

138,

test

assistant

sticky
a

sill

results

142-143).
mine
door

trip

indicated

Following
superintendent,

switch

switch,

the

on

is

outer

activated

the

elevator

apprised

that

the

sole

doors

at

the

when

a

problem
top

mechanical

level

bar

located

closed

the

inside

insuring

that

elevator

car

from

falling

doors

close

the

the

and

bends

one

the

the

Mr.

and

thus

elevator

to

Mr.

locks

doors

in

However,

the

will
will

the

Merrifield

Mr.

the

once

not

day

the
Closing
(Tr.
145).

156-157).

by

level

top

doors
On

fashion

informed

(Tr.

inside

close.

to

the

a

the

elevator

the

257-258).

normal

a

Forte

condition

unsafe

on

in

device

safety
allowing

before

145).
85,
the
doors,

landing,
(Tr.
something

operate

and

Vancura

(Tr.

doors

outer
a

individuals

prevents

the

the
as

closed

the

getting

was

lock

to

functions

completely

bar

breaks

switch

down

switch

shaft

leaves

car
or

problem

only

enabled

are

mechanical

the

Once

operate.
unless

the

The

doors

descend,

down

falls

143-144).

outer

to

doors

outer

(Tr.

position

open

in

question,
manually

doors

that

the

it

elevator

was

Then,
appears
time
underground.
By the
go
and
returned
the
the
to
Forte
Wilson
had
electrician
Shop
of
the
elevator.
At
already
proceeded
by way
approximately
boarded
7:10
the
elevator
for
Mr.
Vancura
the
underground.
a.m.,
trip
made
close
the
doors
Several
were
to
outer
before
such
attempts
manually
doors
would
remain
closed.
the
Once
elevator
closed,
they
transported
the
bottom
of
the
to
shaft
Mr.
Vancura
(Tr.
156-157).
139,
146,
not

in

an

proceeded

the

to

2.

Activities

these

reflects

witnesses

based

this

on

The

of

reflected
of

Findings
this

fact

Mr.

Hrutkay

a.m.

Mr.

(Tr.

18,

20).

Mr.

Jack

mechanic,
(Tr.
23,
manually
mately
elevator

closing

9:40

he

a.m.

The

to

certain

the

January
of

most

elevator

1980,

the

matters

enough
findings

of

fact

this

decision.

of

from

repairs,
by

the

Otis
has
Sutter

Mr.

Merrifield.

Mr.

in

is
warrant

addressed

of
testimony
testimony
appear

of

to

elevator

the

with,

each
There

mechanic

30,

the

in

of

matters.

is

significant
The
separately.
Part
IV(B)(2)(d)

in

involved

intimately
testimony

were

Sutter,
the

IV(B)(2)(d)

Part

a.m.

and

fellow

or

outer

scheduled

that

the

that

were

Hrutkay

times,

and

37-38).

and
outer

the

such
that
of

when

43).

773

first
Richard

doors

by
the

was

observed

the

doors

outer

this

the

same

problem

Mr.

Hrutkay's
men

succeeded

eleva-

shop
together
were
springa

operation
had

work
down

forced

were

perform

the

begin

to

elevator

Matthews,
them
banging

doors

outer

them

best

he
Mr.

but

closing,
time

deduced

occasions

(Tr.

when

observed

To

those

the

each

foot

Mr.

doors

were

colleagues

close

doors
1

on

mechanics

his

foreman,

to

inner

six

mine

outside

the

attempting

(Tr.
24,
operated
the

his

Price,

The
48).
approximately
(Tr.
23).
five

Version

apprised
Hrutkay
testified
Mr.
Hrutkay

were

open

3:20

a.m.
as

Sutter's

Mr.

on

Hrutkay's

Mr.

tor,

ing

based

9:40

which

forth

Herbert

Mr.

and

witness

set

Vancura

decision.

a.

7

each

performed
because
separately
and
in
in,
h•rmo•y

summarized

and

a.m.

agreement

who

Company

been

Merrifield

a.m.

details

are

of

testimony

Elevator

at

testimony
testimony

7

and

general
certain

as

the

7

to

disagreement

summarizing

are

Bostich,

Mr.

to

prepare

Between

between

occurring

some

to

Occurring

Hrutkay,

Messrs.
activities

of

room
change
Mr.
elevator,
underground

that

existed

recollection,
in
manually

together
approxiat

the

not

Then,

Mr.
to
at
according
Hrutkay,
and
informed
approached
to
Mr.
Mr.
Merrifield
According
Hrutkay,
that
time:
either
the
use
elevator
(i)
to
walk
into
the
or
slope
(3) go
mine,
and
the
other
boarded
men
the
promptly
(Tr.
24-25,
39).
Mr.

testified
Hrutkay
approximately

Mr.

for

vator

close
manually
bang together
vator

the

the

mine

a

elevator

aboard

24-26,

the

five

or

six

times.
of

both
about

The

hear.

The

this

time,
Finally,

desire

testified
Hrutkay
McGlothlin,

the

mine

superintendent

to

tell

Mr.

the
made

off

ele-

the

to

get

eleMr.

Gary

off

of

was

safe

enough

for

all

the

elevator

of

to

doors

outer

elevator

loud

got

the

attempted

During
shaft.

the

use

aboard
outside
the

strong

a

promptly

men

closed

heard

the

was

to

Hrutkay

doors

inner

he

whether

statement

Mr.

the

the

on

that

bottom

(2)

remained

men

at

mine,
24, 39).

18,

mechanics
the

options

or

and

safe.

was

three

men

the

(Tr.

a.m.,

elevator

the

elevator

testified

reservations

the

enter

home

expressed

39-41).

elevator

to

mine

the

that

men

accorded

He

to

committeeman,
strong

the

while

doors.

outer

and

(Tr.

operate

the

minutes

approximately
Its
descent
began

never

Bostich,

that
15

7:15

approximately

Merrifleld

to

(Tr.

26-27).
Mr.

Charles

Mr.

testified

that
McGlothlin

Mr.

stand
to

Mr.

mentioned
home

go

the

slope

further

abruptly

testified

that

Mr.

with

the

left

the

mine

Mr.

Hrutkay

Mr.

Hrutkay

not

operating

that

a

McGlothlin
raised

returned

work

on

to

that

Hrutkay
Everything

took

talked
Somerset

he

the

that

he

reply

and

left

want

of
the

under-

27-29).
or

options

walk

the

to

whether

as

slope

affirmative.
the

on

He
and

slope,
sand

some

carry

Messrs.

Accord-

three

same

ice

men

that
to

you

elevator,
Bostich
inquired
in
the
responded

and

Hrutkay

Federal

to

No.

the

mine

60

Mine

to

Bostich

an

mine

Guido

inspector
the

at

that

inspector
requested

33).
49).

ride

safe
not

know

and

the

time.

elevator

was

inspection.
Inspector
without
the
inspecting

conversation
Mr.

Sutter

appears

that

Mr.

8:15

approximately

at

safe

to

upon

what

Mr.

45-46).

774

mine

miners'

whether

the

elevator

returning

to

8:15

approximately
Sutter

a.m.

did

the
or

to

Inspector

performing
never
Hrutkay

a.m.,

the

At

operate.

determine

and,

with

observed
it

However,

to

at

his

following

elevator

properly
did

informed
and

was

test

elevator
that

33-34,

a

the

Hrutkay

but

27-28).

the

Hrutkay,

elevator

functioned

the

testified

Mr.

miners

that

then

that

(Tr.
(Tr.

to

the

(Tr.

point,

at

the

to

Sutter

Mr.

mine."

issue

see

Mr.

U-2).

Exh.

it

I

the

the

he

he

testified

he

Mr.

(Tr.

Mr.

was

noncommittal

32,

According

nounced

that

that

automatically,

Hrutkay

Mr.

stated

use

to

47).
things,

"Lloyd,
the

either

went

27,

certain

accorded

Bostich

testified

testified

(Tr.

Cantlni,

spoke

McGlothlin

responded
by suggesting
At
that
27-28).
(Tr.
problem
office
(Tr.
superintendent's

Cantini

then

(Tr.

off,
stating:
this
to
run
going

Mr.

Inspector

gave

elevator

of

Bostich

Mr.

McGlothlin

Cantini.

Cantini

and

him

cut

that

deal

type

wanted

he

You're
not
thing.
Mr.
McGlothlin
Hrutkay,
by Mr.
Merrifield,
i.e.,
He
testified
(Tr.
31).
and
that
was
Mr.
safe,

one

ing
or

he

that

management
request,
was

surface,
8:20

repair

some

safe.
he

a.m.

Mr.

the

elevator

pro-

Hrutkay

according

Then,
the

pay

for

The

issue.

of

purposes

time,
the

Mr.

gist

of

pay,

the

safety

commence

would

men

Merrifield

raised

and

Merrifield
Mr.
approached
whether
was
inquiry
scheduled
their
at
regularly
for
the
time
be
period
paid
the
would
that
men
replied

he
Hrutkay,
Hrutkay's

Mr.

would

whether

•.e.,

to

men's

the

time,

starting

encompassed
by
be
"portalpaid

dispute.
Article
Secrefers
to
The
term
IV,
35).
(Tr.
"portal-to-portal"
of
Coal
Bituminous
of
the
National
1978,
tion
Wage
Agreement
i,
b, Paragraph
work
inside
"all
a
that
for
in
which
day of eight
Employees
part,
provides,
*
*
*"
*
*
*
established
is
(Tr.
46, Exh.
from
hours
(8)
portal-to-portal
for
the
men's
that
was
The
time,
purpay
starting
conveyed
J-2).
message
and
the
elevator
to
boarded
when
underground,
would
commence
go
they
poses,
the
the
for
time
be
not
would
safety
that
the
encompassed
by
men
period
paid
35-36).
(Tr.
dispute
Mr.

to-portal"

According
Mr.

Merrifield's

Mr.

Hrutkay,

pay

issue.

the

mine

that

the

the

mine

to

at

issue

pay
after

46).

Mr.

aimed

at

version

Hrutkay's
B0stich's
version

version.

in

completely
approximately
to
manually
to

that

i0

the

with

it

Bostich,

Mr.

Mr.

Bostich

told

the

assembled

Mr.

Bostich's

doors

or

walk

before

mechanics

to

mine
At

to

7:25

the

not

move,

and

the

see
men

three

men

Bostich,
Sutter's

he

and

arrival.

Mr.

what
heard

7:45
those

to
on

the

in

the

men

outer

outside

the

mine

boarded,

ride

management
from
that

the

that
the

outer

the

elevator,

boarded

mechanics

The
the

appears

stating

testified
doors.

According
55-57).

exchange,
either

mine

bang

arrived

(Tr.

a.m.

It

i.e.,

other

attempted

doors.

objected,

Bostich

For

apart.

mechanic

arrival,

point

the

not

the
7:30

elevator.

Mr.

the

Once

a.m.

happened

details.

supervisor

the

options,

63).

a

close

mechanics
some

(Tr.

go

inches

and

Sutter's

Mr.

board

home

or

and

a.m.

could

attempt

approximately

the

Mr.

between

that

mine

accord

in

approximately
closing

at

12

to

to

at

57).

after

They

arrived

testified

accorded

manage-

certain

were

assistant

an

that

According
elevator

in

(Tr.

slope

the

8
the

Then,

doors.
awhile

generally
to

doors

foreman

outside

closing

Merrifield

Mr.

minutes,

Sutter

outer

approximately
the

is
as

elevator

the

at

elevator's

testimony
not

were

arrived

he
The

outer

for

Mr.

mine

follows:

as

remained

15

or

close

tinkered

and

that
1980.

day
differ

versions

two

forth

set

that

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what
The

is

30,
they

January

on

a.m.

with

meetings

36).

Version

testified

Bostich

Mr.

7

the

and

further

any

(Tr.

dispute

of

Bostich's

Mr.

recall

not

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Mr.

that

elevator

the

from

union

(Tr.

issue

of

learned

men

instructions

on

file
over
to
a
grievance
enter
the
to
men
persuaded
testified
Mr.
35-36).
Hrutkay
from
the
men
entering
prevented
8:15
safe
a.m.
at
approximately

the

a.m.

only

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work

to

go

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when

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Hrutkay,

9:40
the

was

ensued

uproar

to

men

Mr.

pronounced
did
Hrutkay
the
resolving

b.

Mr.

to

he

(Tr.

Mr.

an

Mr.

the

persuaded
According
approximately

ment

with

Hrutkay,

Mr.

determination.

inner

elevator
doors

the

this

occurred

doors
did

closed.
not

together

at

least

six

4

minutes,

off

of

times.

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In

to

response
that
the

opinion
the

elevator

while

it

elevator

(Tr.

59).

Mr.

Hrutkay

Bostich

elevator.

Mr.

Bostich,

Mr.

Bostlch

want

point,
specifically

the

point,

Bostich

ice

on

ride

at

Then,
stating

whether

Mr.

McGlothlin's

rotary

Bostich's

clapping
According

The

next
not

time

on

safe

Mr.
Bostich
thing
for
the
paid

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miners

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to

Mr.

McGlothlin's

office

of

Mr.

Merrifield's

decision,

tive

bargaining
reporting
pay
Mr.

discussed

office,
sion

for

regarding

to

time

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was

to

this

question

bag

of

mine

pronounced
stood

(Tr.

ride

heard

discuss

already

already

and

the

elevator

the

Bostich,
(Tr.
meeting
Mr.

at

pay.

776

the

apprised
completed

the

miners

men,
the

because

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and

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to

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presentation
down

men

his

addressed

appears

tenor

on

do
to

was

hand-

a

work."

our

go

work

to

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the
that

Messrs.
would

to

that
mine,
The
go
underground.
and
returned
Hrutkay
Mr.
McGlothlin
apprised

provision

in

the

decision

Hrutkay
apprise

on

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collecto

men

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Mr.

ice

the

the

at

entitling

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the

as

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statement

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of
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issue

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that

a.m.,

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to

matter.

him

92).

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through

safe

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interpreted

the

some-

recording

and

spent

Messrs.

spent
stated

i0

Merrifield's

Mr.

had

notified

they

At

67-69).

was

they

time

not

and

him.

elevator

go
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amongst

consensus

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let's

go

entries

"dead
work"
mostly
shift.
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midnight
the
ended
his
speaker
about

with

bench

a

were

home.

suggested,

Hrutkay

the
on

they

angry

management

Mr.

to

slope,
testimony

as

found

a.m.,

they

and

approximately

65-67).

and

the

sand

and

the

that

or

Bostich's

McGlothlin

and

According

if

of

(Tr.

Error

and

that

slope

the

corrected.

Mr.

decided

that

Mr.

on

smart-mouthed."

the

Mr.

At

boarded
they
and
decision,

determination,

According
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and

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he
about

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them

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ride

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little

book

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which

agreement

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69-70).

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by

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fixed

get

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expressed

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condition

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8:10

perform

down

angered

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Mr.

walk

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to

start

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63-64).

a.m.

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testimony
by stating:
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Bostich,

would

get

to

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(Tr.

or

was

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8:20

gone

it

response

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problem

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would

Mr.

handrail

going

Mr.

the

to

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note

to

because

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high

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examiner's

Mr.

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as

mine

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at

either
safe

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told

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and

elevator

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dump

men

inquired

asked

slope

either

Mr.

then

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work

their

or

58-59).

point,

McGlothlin

Mr.

(Tr.

would

off

to

elevator

he

they
to

the

Bostich

expressed

until

strong

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getting

started

that

Thereafter,
the

elevator

elevator,

checked

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that

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desire

Mr.

that

3

approximately

indicated
At

and
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According
vulgar
language,
meeting
adjourned

of

Mr.

for

Merrifield,
and

after

testified

the
Mr.

sarcastic.
use

elevator

condition.

that

testified

characterizes

such

McGlothlin

Mr.

that

what

the

Mr.

McGlothlin

Mr.

ride

to

ride

to

going

in

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testified

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question

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elevator

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remained

men

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Bostlch
point
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expressed
rather
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did
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stating
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mine
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off
of
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thereupon
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safe.

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which

at

was

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and
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affirmed

was

Bostich
men

(Tr.

final

slope
of

not

left

the

the

deci-

the

informed
under

work

the

and

protest

to

elevator

the

boarded

men

boos

of

chorus

a

Bostich

hisses.

Mr.

required

them

and

bargaining
agreement
the
over
file
a
pay
grievance
time"
to
"some
things
explain
9:40
a.m.
at
approximately

required

it

with

news

collective

the

that

men

that

testified

the

greeted

miners

The

issue.
the

to

Finally,
(Tr.

men.

the

enter

to

to

Bostich

Mr.

mine

70).

Mr.

Merrifield's

Mr.

Merrifield

mechanics

mine
had
mine

felt

it

mechanics

that

Messrs.

concluded

that

a

from

making

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operate

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going

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switch
doors

the

a.m.,

he

observed

them

of

to

as

why they
the

the

the

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elevator,

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to

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(Tr.

elevator

mine
the
informed
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and
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inspected
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outer
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a
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problem

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a

7

forth

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He

testified

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set

in

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was

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problem

contact;
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elevator

after

that

further

Merrifield

Mr.

shortly
surface.

there
that

and

is

testified

that

stated

the

on

He

unsafe,

was

that

still

work.

events

the

of

testified
were

gone
mechanics

Version

version

to

not

157).

Merrifield's

Mr.

c.

were

doors

outer

made

it

that

contact;
make

the

requested

the

mine

dispatcher

and

the

order

was

elevator

doors
the
outer
close
to
manually
necessary
would
the
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doors
were
operthe
outer
that
once
closed,
and
operate;
that
to
is
It
however,
note,
210).
significant
(Tr.
ate
157-158,
normally
at
certain
not
mine
entirely
this
managementwas
statement,
notwithstanding
the
of
extent
or
nature
problem.
the
to
time
as
in
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precise
point
a
that
his
in
although
later
testimony
testified
at
a
Merrifield
point
Mr.
the
of
the
cause
problem,
theswitch
was
that
made
been
had
determination
171-172).
the
was
what
(Tr.
know
did
not
problem
mine
really
management
in

the

Following

minutes

15
Approximately
themselves
presented

man

work.

Both

manually

and

to

togo
closed

mine

and
elevator,
by boarding
complied

men

the

the

later,
the

at

mechanics

to

158).

(Tr.

refused

they

but

work

to

go

Merrifield

Mr.

explanation,

to

the
the

transported

elevator

Mr.

Merrifield

slope
requested

elevator.

The

two

men

motor-

them

doors

were

(Tr.

underground

158).
the

Thereafter,
the

enter

them,

to

he
he

thereto,

quent
8

Merrifield
them

problem

men

them

to

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scheduled

7:45

refused

a.m.

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refused.
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work
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begin

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requested

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at

he

that

work,

to
go
who

work

begin

to

testified
to

the

addressed
the

explained

a.m.,

Mr.

requested

elevator.
that

scheduled

motormen

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go

to

to

situation
Subseat

(Tr.

work

159).
Mr.

7:30
and

a.m.

or

7:45
that

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determine

whether

that

testified

Merrifield
a.m.

he
the

Mr.

Merrifield

examine

the

elevator

was

Sutter

Mr.

arrived
the

explained
diagnose
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safe

777

to

operate

at

approximately

to
Mr.
problem
the
difficulty,
159).
(Tr.

Sutter,
and

According
elevator
close

the

that

it

to

problem

to

use.

to

determine

the

Then,

his

However,

Mr.

sill

Sutter

precisely

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what

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mine

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men

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refused

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in

the

Two

a.m.

completed
was

of

some

7:45

operate.

Sutter

Mr.

the

Merrifield,

Mr.

unsafe

was

When
that

to

approximately
doors
manually.

at

as

wrong

with

of

the

elevator

to

ride

it

(Tr.

Then,

at

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tor,

that

the

determined
ride

that

the

ride

elevator

elevator.

the

that

walk

started

ing
The

agreement
miners

and

talking

Merrifield

the

miners

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repairs

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asked

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that

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men

miners•

the

elevator

some

to

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i.e.,
Error,

Mike

the

requested

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men

refused

men

Mr.

eleva-

three

still

Then,

As

under-

the

the

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men

Sutter

the

three

that

He

towardthe

was

men

to

of

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the

safe

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to

work,

go
miners

McGlothlin
the

testified

that

fireboss

book

were

them

wanted

to

walk

the

going
slope.

and

whether

he

turned

Merrifield's

proceeded

it

other

to

over

Mr.

and

that

no

men

were

told

whether

to

as

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unsafe

subject

indicated

the

that

the

men

sand

with

The

used
employees
(Tr.
164).

the

slope
had

area

to
He
Sutter

that

the

of

possible
slope
them
(Tr.

slope
ice

the

elevator

pay
of

them

from

the

the

enter

to

the

slope

mine

Merrifield
the

during

Based

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Mr.

it

at

was

preshift
on

that

Merrifield
that

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was

that

time

and
policy
same
meeting,

Messrs.

reported.

and

safe,
163-164).
was

to

safe.
examined

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on

company
the

during

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union.

local

was

had

office,
Hrutkay

the

to

been

conditions

Messrs.

of

Later,
the

McGlothlin's

Mr.

members
them

apprised

determination.

raised

to

thereafter,
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was

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Mr.

the

he

Shortly
accompanied
by

office

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take

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them

him.

to

responded

examination

the

of

point

service

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matter
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was

of

out

reached

none

of

none

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because

162).

started.

and

because

testified

Mr.

that

at

work,

to

elevator

the

the

Mr.

that

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Merrifield

issue

a.m.

home.

go

the
Mr.

the

them

required

inspected

instructed

accorded

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slope
telling

men,

move

and

(Tr.

the

report,

operate.

be

Merrifield

addressed
had

safe

was

would

tlme

transport
repairs.

switch,

thereupon

testified

entered

They

to

dump

to

were

took

for

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safe

the

rotary

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thereupon

Mr.

was

Merrifield

elevator

Mr.

Sutter

to

claimed

the

enter

Mr.

enter

trip

and

asked
someone
Mr.
Merrifield
about
elevator,
pay.
that
in
accordance
with
both
the
responded
collective
bargainand
the
men
would
be
policy,
company
paid
"portal-to-portal."
decided
the
and
thereupon
against
entering
elevator,
began
arguing
themselves
(Tr.
amongst
160-162).

to

Merrifield

sill

a•d

the

began

miners

Mr.

that

the

the

available,

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to

for

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Forte

Merrifield

Mr.

work

and

and

9:40

the

or
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addressed
foreman,

ride,

in

much

Merrifield

Mr.

a.m.,

Vancura,
was

the

mine

that

Messrs.

problem

underground

8:15

approximately

them

made

Mr.

the

switch.

to
whether
he
as
could
the
use
elevator
inquired
and
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turn
the
elevator
him
over
to
ground
in
the
affirmative
(Tr.
responded
159-160).

telling

that

how

the

the

were

161).

informed

and
to

entered

attempts

off

he

inspection,
switch
trip
unsure

mechanics

suggested

approximately

the

d.

elevator

Mr.

Jack

mechanic,
to

There

inches.

12

inferred

have

to

Additionally,

3:20

a.m.

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correct

to

The

surface.
that

felt

were

made

doors

the

However,
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problem.
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desire

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to

question,
unsafe,

Mr.

such

book

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he

gone

point

precise

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home.

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time

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nature

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outer

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the

the

of

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•.•.,

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The

mechanics

mine

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the

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in
Then,
opinion,

response

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the

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ride

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his

in

not

while

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the

the

on

doors

doors
Mr.

to

go

mine

the
men
They heard
such
by banging
a
Bostich
expressed

closed.
outer

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the

the

to

minutes,

of

off

Mr.

Bostich

through
to

carry
the

Hrutkay
Mr.

Then,
was
a

rather

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it

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a

in

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the
of

use

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of

ice

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on

thereupon

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Hrutkay
and
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noncommittal
reply,

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the
of

issue

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entries

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slope

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Mr.

Inspector

requested
and

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left

elevator.

779

and

on

in

the

the

the

a

mine

advised
examiner's
handrail.

broken

McGlothlin's

property

as
approach
the
slope
was
slope

slope.

vulgarity,

Cantini,
inspection.
the

walk

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explicit

rather

same

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Mr.

McGlothlin's

Mr.

the

took

use

raised

bag

presence
Bostich
and

Mr.

to

McGlothlin

either

to

thereupon
the

proceeded

thereupon

problem.
them

specifically

and

recorded

elevator

Bostich

told

Bostich

Mr.
use

McGlothlin,

Messrs.

gave
the

not

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operate

board
at

the

was

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close

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slope

4

or

to

men

elevator,

got

the

explained

Merrifield

home.
go
to
safe

Mr.

at

had

still

were

closed,

were

doors

men

and

Hrutkay

and

office

Mr.

not

8

condition.

Messrs.

Mr.

3
the

that

necessary

to

as

told

stated

and

would

close

statement

The

Bostich

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note

inside
to

of

off
The

hear.

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attempts
get

had

mechanics

why

to

as

the

the

walk

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approximately

After

together.

at

1980.

mine

the

doors

accorded

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and
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make

was

outer

Merrifield

Mr.

boarded

the
it

requested
thereupon
to
is
significant
certain
entirely

•he

ride

strong

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once

He

arrived

mechanics

mine

30,

that

that
that

contact;

it

management
either

the

feature;

that

and
manually;
ate
normally.
work.

was

elevator

preventing
a
safety

was

outer

it

the

inspected

doors

fellow

on

the
on
they
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with
there
that
was
a
stated
problem
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to
use
and
that
not
were
going
they
unsafe,
and
Forte
that
Messrs.
Vancura
explained
thereupon
with
that
a
concluded
and
had
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relay
problem
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outer
that
from
doors
outer
making
contact;

Merrifield

Mr.

switch

their

inquired

and

them

mechanics

mine

they

elevator.
had

Versions

observing

after

Merrifield,
approached
underground,
Mr.

tor,

Three

They observed
January
and
Richard
a
Mr.
shop
Matthews,
them
the
outer
doorsby
banging
the
doors
would
approximately
open
spring
attempt,
doors.
Mr.
inside
with
the
Hrutkay
no
was
problem
had
existed
that
the
that
this
same
was
problem
elevator
that
the
knew
Mr.
repairman
Hrutkay
the
problem.

each

With

together.
appears

the

on

and
Bostich
and
Hrutkay
7
a.m.
at
approximately
the
outside
foreman,
Price,
close
to
manually
attempting

Messrs.

the

Based

Findings

office.

him

advised

Inspector
without

that

the
Cantini

inspecting

or

various

At

Mr.

times

Merrifield

elevator

begin

to

these

groups

of

to

board

refused

between

addressed
work.
the

It

of

groups

elevator,

by

8

Forte

mine

a.m.,

reported

to

the

informed

all

of

Merrifield

Messrs.

the

except

they

as

Mr.

made

and

a.m.

miners

that

appears

determination

the

7:30

approximately

other

and

dispatcher

All

Vancura.

and

the

slope

motorman.

At

the

at

mine

the

explained
requested

Mr.

ever,
to

whether

and

it

what

precisely
whether

was

8:10

approximately

At

the

elevator

safe

was

to

him
be

for

mine

8:15
At

the

a.m.,

that

stated

already

spent

movement

in

conclusion

over

at

the

elevator.

llr.

Sutter

to

Merrifield

Mr.

that

the

the

the

toward

the

raised
the

mine.
of

miners

the

the

were

for

use

Mr.

Merrifield

to

transport
that

the

elevator
on

apprised

the

ride,

and•

safe.
the

were

be

ceased.
work

and

removed

it

from

to

an

left

side

miners

that

the

request
safe.

was

returning
At
approximately
trip
underground.

to

Merrifield.
the
the

time
decision

Merrifield

Mr.

to

the

upon

for

paid
angered
by

under-

men

was

pursuant
the
elevator

whether

required

Sutter

Mr.

sections

acting

a

How-

be

the

repairs.

Mr.

not

the

elevator.

switch.

three

and

completwas
problem

would

for

refusing
he

to

with

elevator

Accordingly,

Upon

issue

pay

miners

operate.
that
the

Sutter

and

to

elevator

would

men

The

direction

that

use

headed

Hrutkay

Mr.

Merrifield

Mr.

to

miners

point,

Vancura,

problem,

management

of
the
took
ride
a
test
to
determine
miners,
functioned
the
test
Everything
properly
during
the
Mr.
the
elevator
surface,
Hrutkay
pronounced

and

that

noted

Hrutkay,

Merrifield

the

time

for

the

Mr.

a.m.,

Mr.

of

of

the

to

Mr.

operate.

safe

elevator

should

8:15,

Merrifield

with

system

or

Mr.

amount

over

It

safe

the
the

use

Forte

was

be

wrong

he

could
inquired
and
then
turn
the
elevator
ground
the
in
affirmative.
responded
of
the
important
part
escapeway
of
the
mine
(Tr.
220-224).
to

as

7:30

diagnosis

would
to

as

Messrs.
a

informed
that

uncertain

was

of

elevator

Sutter

switch

Sutter

determine

the

and
261)
problem.

elevator

findings
the
elevator,

of

Mr.

sill

(Tr.

7:15
the

to

andthe

to

examination,
trip

the

attend

problem
as

the

in

between

time
to

examination

an

determination

ing

in

point

some

arrived

that

they

service

were

and

they
and

had
all

reached

the

not

going

turned

it

repairs.
the

mine

office
and
the
superintendent's
explained
Messrs.
and
Shortly
thereafter,
Hrutkay
Bostich,
of
members
the
local
entered
Mr.
McGlothlin's
accompanied
by other
union,
office
to
the
discuss
matter
with
him.
told
McGlothlin
Mr.
about
They
Mr.
Merrifield's
and
notified
him
of
a
in
the
collective
decision,
provision
which
as
the
men
to
bargaining
agreement
they
interpreted
entitling
reporting
for
the
time
at
the
mine.
Mr.
McGlothlin
then
the
pay
already
spent
apprised
of
affirmed
men
Mr.
Merrifield's
and
stated
policy,
company
determination,
that
the
decision
final.
It
is
was
that
the
possible,
although
unlikely,
of
issue
ice
the
raised
on
was
this
slope
again
during
meeting.
matter

to

After
decided

went

Messrs.

that

to

McGlothlin.

Mr.

Mr.

Hrutkay
Bostich

and
would

Bostich
inform

left
the

pay.

780

the
miners

superintendent's
of

the

decision

office,
regarding

they

The
were

told

them

to

that

under

work

elevator

The
mine

been
issue

pay
8:15

at

3.

Safety

Concerns

Mr.

Hrutkay

was

have

It

Washington,
MSHA

Citation

issued
30

effect

on

were

instructions

that

the

entering

75.1725(a)
(Exhs.
Administrator
Cook,
(Exh.

U-3).

for

8

the

manager,

from

safety

on

This

based

standard

January

30,

1980,

elevator

is

used

J-4).

(Exh.

6,
February
Shade,
acting

On

Alvin

inspector

MSHA's

upon

ensuing
Poyle

shaft

Anderson

the

the

determination

C.F.R.
30
standard
safety
O.
from
memorandum
Joseph
3, 1980,
Donald
W.
to
and
Huntley,
Health,
C.F.R.
30
concerning
opinion
legal

AM arch

Safety
subsequent
on
opinion

Mine

MSHA's

the

mandatorx
shift

a.m.

mine

would

from

complaint
During

John

on

mine"

the

exiting
by Federal

a

repairing
(Tr.
performing

inspector

manually.

closed

be

U-2).

of
doors

mandatory

Coal

in

manually
together
gained
experience

U-2).

mine

violation

outside

violate

forth

75.1725

the

condition

from

service

order

failure

stationary

machinery
immediately."
and

is

matter

in

forth

set

automatically.
should

elevator
automatic

to

had

determined

mined

that

do

would

the

be

refitted

and

so,

exact

malfunction
constitute

to

in

question

operator

wishes

to

with

this

type

be

maintained

should

they

doors,

the
the

If

not

remove

cause

of
would
a

equipment
in
equipment

the
not

violation

malfunction
detract
of

781

from
Section

unsafe

Exhibit

door.

of

a

corrected

the

safe

in

shall

and

installed

landing
operate
if
However,
The

condition.

knowledgeable

and

75.1725."

maintained

condition

designed
manually
inthat

until

service

from

were

be

shall

and

or

doors

elevator

the

view,

our

to
operate
the
doors,

and

that:
part
machinery

in

states

Mobile
"a)
operating
"In

elevator,

the

entering

to

written

(Exh.
Federal

subdistrict
not

for

Manager,

removed

they

from

follows:

as

safe

•/

Administration's
a

elevator

a

to

and

J-5,
sets

"Section

be

elevator

relates

His

Health

and

1980,

properly

the
did

§

U-3

The

locomotives

as

doors

received

"the

vacated

was

from

§ 75.1725

boarded

experience

as

switches.

the

i,
alleging

had

men

condition

District

It

men

men

such

the

banging

office

that

of

years

experience

no

Safety

Mine

February

doors

12

automatic

field

626046

citation

on

the

outside
for

portal
the
1980,

as

issue.

262-263).

(Tr.
the

pay
the

29).

regarding

No.

the

that

mine.

a.m.

equipment,

that
the

in
75.1725(a)
not
working

§

C.F.R.

elevator
in

concerned

on

with

had

he

(Tr.

was

committee
safety
investigation

mine

that

elevator

31, 1980,
Pennsylvania,

January

On

the

prevented

that

issue

Finally,

men.

enter

8:45

mechanical

of

appears

adverse

an

to

mechanic

mine

a

the

on

Hrutkay

Mr.

to

a.m.

approximately

sole

components

50-51).
16,
work
repair

2/

the

was

the

miners

required

agreement
the

over

The

hisses.

a.m.

electrical

the

things
9:40

grievance

a

and

boos

bargaining

collective

file

to

of

chorus

a

the

of
and

protest

to
explain
approximately
at
completed

at

had

repairs

with

news

time"

"some

required
the

the
greeted
the
provisions

miners

it,

operation

person
deter-

or

of

the

with

working
the
about
of

the

did

other

not

express

inspection

of

any

Bostich's
electrical

on

the

elevator

descending
is

duties

as

could

banging
also

was

uncontrolled

significant
Inspector

to

concerns

the
He

contactors.

it

However,

these

that

indicated

off

the

44-45,

the

to

to

Cantini

bottom

that

note

knock

concerned

when

Hrutkay

Mr.

the

making

47-48).
mine

a

At

equipment.

automatically

operate

equipment

coils

(Tr.

request

Mr.

work

of

types

wires
and
chutes,
the
of
possibility
shaft
(Tr•
30-31).

arc

mechanic
least

him

required
of

some

this

perform

to

equipment

mechanical

designed

was

to

to
Mr.
Bostich
had
opposed
been
trained
manually.
to
remove
automatic
from
service
when
it
equipment
failed
to
operate
properly.
When
electrical
an
it
can
component
malfunctions,
prevent
equipment
designed
to
from
operate
automatically
When
the
operating
automatically.
components
burn
the
is
"down"
out,
equipment
(Tr.
ordinarily
60-62).

Bostich

Mr.

feared

that

become

stuck
he

ally,
(Tr.

in

the

On

outer

shaft

the

possibility

doors

4.

A

of

Messrs.

71,

124,
was

length

in

staircase

an

had

been

the

morning

to

87).

Addition-

electrical

arc

60,

the

Bostich

angled
(Tr.

mechanic,

used

a

17

at

74,
in

91,
the

located
of

of

the

the

righthand

side

mine.

An

engine-powered,
descend

and

the
the

doors

outer

30,

then

exactly

was

manually

(Tr.
99-100).
on
technique

doors
similar

examined

party
operator

and

Merrifield

the

after

slope

member

a

of

members

were

and

degrees,
166).
slope.
the

on

the

A

mine

the
of

9:40

a.m.

mine

safety
inspection

the

slope

and

staircase

the

was

steps

lefthand

(Tr.

73,

located

232).

side

72).

The

to

on

a

between
Steel

hoist

girders,

(Tr.

the

conveyor
15
inches

to
or

"I"

on

into
hoist

the
cars

75-76).

72,

belt

beams,

was

located

supplies
the

and

and

slope

was

track

14

to
1,200
equipment

the

caused

railroad

approximately

of
hoist

transport

cable

slope

were

conveyor

used

was

approximately
hoist
belt,

was

(Tr.

surface-mounted

through

The
risers

past
the

closed
inner

and

out

8-inch

the

first

164-166).

was

concrete

in

the

miner

belt

equipment.

used

closed

closed

inspection

coal

The

were

accomplished
of
January

Slope

conveyor

or

doors

on

operator

then

transport

ascend

used

256).

located

were

to

and

elevator

one

procedure
elevator

continuous

and

slope

feet

The

The

union/company
a

the

inner

elevator

Condition

Segedi,

The

the

the

trained

a

(Tr.

committee,
(Tr.

1,500

1980,

past,
elevator

1980

joint

Mark

to

elevator

(Tr.
by

it

he

Rather,

the

cause

generated

the

of

than

closed.
the

the

party

6-

aboard

fire

a

descent.

might

those

of

operation

30,

were

In

inside

hoist

uncontrolled

an

circuitry

trap

different

January

Mr.
Sutter,
30,
January

to

and

manual

past,

opposite.

used

the

procedure

a

1980.

a

about
the

in

100-101).
In

Mr.

malfunction

feared

through

from

concerned

not

was

the

as

,

and
wide
were

the
and

had
located

5

right

of

apart

and

the

to

feet
the

on

(Tr.

righthand
72, 74-76,

The

staircase.

the
were

numbered

for

side

of

the

steps.

encountered

party
inspection
from
extended
approximately
the
midpoint
approximate
The
in
15
feet
length.
to

it
of

falling

a

The

slope
of

all

of

varied

from

broken

at

steps
location

at

was

approximately

was

approximately

i

that

location

and,

ice

without

of

inch

the

of
degree
91, 102-103,

caution

that

the

question

presented

of

deprived
refusal

under

work

to

i05(c)(i)

Section

No

against
against

otherwise

to

125-127,

for

related

to

operator

safety

transfer

is

the
a

such

because

by

such

employment
afforded
right

or

mine

in

of

by

this

mine,

or

for
applicant
and
potential

or

miners

applicant

or

to

be

instituted

or

has

testified

proceeding,

or

because

of

miners

Act

or

Act.

783

others

i01

section

to

pursuant

himself

or

under

evaluations

representative

behalf

miners

a

miners

caused

such

any

of

other

or

of

this

or

subject

mine

other

of

or

to

miners

complaint
the
notifying
complaint
of
the
representative
or
of
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danger
alleged

coal

a

published

related

miner,
on

in

instituted
or

of

made

representative

miner,

employment
under
proceeding
about
is
to
testify
exercise

agent,

standard

has

for

or
a

the

of

exercise

or

filed

representative
medical
of
subject

miner,

under

employment

coal

other

or

violation

health
such

because

coal

the

at
or

operator's

the

or

miners

cause

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including

Act,

discrimination

representative

has

employment
this

the

to

discriminate

manner

any

representative
any

Law

he

ice,

that:

provides

in
or

miner,

domino

conditions.

with

in

such

because

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in

the

whether

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any

employment

for
Act

applicant

the

of

on

or

of

any

any
or

of

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statu-

the

of

the

sequence.
Facts

were
Complainants
by
protected
activity
engaging
is
The
alleged
activity
protected

Mine

discharge
be
discharged

the

danger
to

access

in

Act.

1977

the

fall

to

of

unhealthful

interfere

rights

this

or

to

cause

or

applicant

Mine

shall

or

statutory

1977

him

of

is

case

for

unsafe

of

person

this

fallen

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man

one

of

means

Application

and

in

the

of

men

safe

a

front

in

retaliation

in

earnings

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If

men.

indicates

handrail
afford

not

Standard

The

tory

ice
was

the

broken

a

did

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or

some

and

contingent

Legal

for

girders

which

the

ice

the
patch
negotiate
substantial
a
required
ice
of
(Tr.
78-79,
patch

ice

Governing

or

The

to

the

5.

or

the

to

This

on

girder.
of
patch

It

of

large

a

caused

to

152

handrail

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ice

of

patch
to

of

thickness

handrail.

great.

was

section

the

of

necessary

was

combination

for

have

bolted

was

to

located

was

233).

The

mine

A handrail

handrail

a

girder
slope.

141

inches.

negotiate

successfully
164-165,

a

4

approximately

assistance

The

3

approximately

spaced

were

91).

The

accordingly,

girders
identification.

could

In
2

Mine

2786,

Safety

i05(c)(i)
The

tours

of

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some

and
to

ex

MSHC

1001,

Health
1977

Mine

which

he

the

right
objective

to

is

be

work.

2

FMSHRC

As

relates

to

[T]he

able

of

(i)

proves
that

the

tected

decision
to

2793-2794.

the

burden

that

a

conclusion

before

it

in

good

On

as

protected

a

in

issues,

part

any

in

the

activity,

motivated

these

of

appears
health

miner

unhealthful,
the

of

case

preponderance

a

in

was

held

facie

prima

a

if

the
or

for

con-

it
to

that

unsafe

Commission

the

threat

a

foundation

a

the

be

all

However,

determined
to

unhealth-

or

set

work

to

unsafe

that

Federal

section

refuse

2793.

at

faith,

proof,

be

Company,

the

that
to

to

be

can

reason

held

"definitely

not

Coal

(1980),

right

faith,

supporting

established

action

activity.

good

FMSHRC

i05(c)(i)
engaged

he

adverse

the

2

of

24,878

(Commission)

has

such

at

has

miner

Consolidation

v.

par.

work."

upon

section

a

in

believed,

complainant

lation

believes,

refuse

rely

OSHD

accords

necessary

to

Pasula

CCH

Commission

Pasula

condition

thus

David

i980

Act

evidence

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rel.

Review

Commission's

safety
proved

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the

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ful.

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2

and
of

under

of
BNA

Secretary

FMSHRC

refusal

Pasula

that:

vio-

a

evidence

(2)

and

by

the

pro-

the

must
bear
complainant
the
ultimate
burden
of
The
persuasion.
affirmaemployer
may
tively
defend,
however,
by proving
by a preponderance
of
all
the
evidence
of
that,
his
although
motive
part
was
unlawful,
he
also
(I)
was
motivated
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and
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he
(2)
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ties,
have
taken
adverse
action
against

the

miner

in

On

these

of

persuasion.

that

the

the

adverse

must

show

of

discipline
that

At

the

Messrs.

Sutter

Neither

the

doors

manually

elevator

was

unprotected
work

accorded

whether

the

in

faith,

good

is

the

if

he
for

he

would

been

the

will

did

alone.

ultimate

burden

the

fired

enough

for

consider

in
the
engaging
have
disciplined

the

in

resulted

it.

The

in
not

in

the

employer
deserving
alone

event.

any

in•riginal.]

show

to

did

have

employee
activity

unprotected
him

employer
engaging
conduct

to

consider

not

fact

in

activities
the

unprotected

employer
we

bear
for

have

to

the

that

unprotected
must

sufficient

not

activity;
action,

[Emphasis
at

employer

concern

same

FMSHRC

for

the

deserved

unprotected

and

event

It

miner

originally

2

any

issues,

2799-2800.
outset,
and
defect

one

Vancura

critical

existing
constituted

point
that

proves
on

an

January
unsafe

should

be

the

elevator

30,

1980,

condition.

noted.

The
was

safe

closing
the
However,
nor

testimony
to

of

operate.

the
fact

outside
that

the

saf•
to
use
does
actually
not
mean
that
the
miners
in
engaged
when
refused
to
activity
use
they
it.
The
to
refuse
to
right
of
by section
the
i05(c)(i)
1977
Mine
Act
is
not
to
geared
condition
is
in
fact
but
to
whether
the
unsafe,
miner
believes,
that

the

condition

is

unsafe.

784

A

scheduled

were

activity

protected
tected

ceased

raised
the

to

as

The

discrimination

plainants
fails

record

1980,

protected

by

section

set

forth

in

discussion
8

Various

of

prohave
of

means

did

slope

the

because

in

such

arguments

alternate

an

engaged
that

access

afford

not

men.

be

dismissed
time

relates

as

Com-

those

to

8:15

was

the

because

a.m.

30,

on
in
January
activity
engaged
Complainants
the
Act.
Mine
Therefore,
1977
the
of
i05(c)(i)
those
to
confined
be
will
paragraphs
following

the

scheduled

times

starting

7

were

7:45

a.m.,

a.m.

a.m.

relates

As

refused

a.m.

protected
objective
the

elevator

ure

of

to

the

use

the

evidence

existed

to

was

in

which

doors;

(3)

the

used

the

safety

violent

(4)

and

attempting

efforts

needed

been

that

the

fail-

violent
(2) the
the
outer
close
manually
the
close
to
successfully
the
from
departure
unexplained
to

Respondent's
had

it

when

past

part

(i)

of:

normally;

were

the

some

their

on

consisted

function

to

was

because

belief

and

a.m.

activity

i05(c)(i)
faith

evidence

7

This

record

the

a.m.,

between

work

reasons.

good

a

8:15

and

a.m.

begin

section

of

objective

personnel

company

in

for

doors

outer

repeated,
manually;

doors

tO

meaning
support

The

unsafe.

elevator's

scheduled

elevator

within

manner

outer

Complainants

activity

the

method

the

7

between

period

time

the

to

that

discloses
8

as

a.m.,

but

such

regularly

whose

Complainants
and

scheduled

that

show

to

a.m.

starting

will

complaint

regularly

whose

1980,

8:15

rejected
body
large

a

and

30,

slope

are

for

mine

the

of

8

a.m.

January

approximately

arguments

the

to

7:45

a.m.,

of

existence

These

access

7

at

morning

at

the

to

mine.

safe

the

on

activity

been

work

begin

to

who

Complainants

the

that

establishes

evidence

the

of

preponderance

the

close

to

necessary

doors

outer

manually.
The
Messrs.

refusal

work

to

the

safety

hazard.

the

miners

danger.

F.2d

772

Merrifleld

attempting

refusing
is

Phillips
Cir.
(D.C.

to

required

from

In

mine

Bostich's

and

investi-

fact,

the

it

was

785

Operations

record

reveals

anything

safe

miners
to

do

to
so

at

evaluation

Appeals,
that

the

but

reasonable.

use

the

elevator

point

in

a

penthe

of

supervisor's

Mine

was

the

persuade

it

effect,

evaluation

his

accept
of

management
to

that

management's
to

Board

Interior

1974).

was attempting
them
persuade

had

subsequent
10-12;

pp.

in

because,

position
accept

to
not

v.

Brief,

dis-

had

result,

Vancura's

Mr.

occurring

Posthearlng

Respondent's

for

of

activities

the

subsequent

6-7).

pp.

the

to

about

management

a
as
and,
Respondent,
Hrutkay's

a.m.

results

the

them

(Respondent's

A miner

response"

"reasonable
Mr.

with

disagree

7

Messrs.

to

response

to
relaying
the
Respondent,

Brief,

Reply

alizes

500

to

was

to

According

safe.

reasonable

unprotected

were

Respondent's

of

by

According

thereto

I

a

gave

activity

protected
gation.

the
elevator

the

that

Merrifield

Mr.

activity
prior
problem

mine

of

form

the

concern

the

that

to
argue
because

appears

protected

not

was

notifying
Respondent

investigated

and

covered
determined

Bostlch

However,

elevator.

the

their

of

Merrifield

Mr.

in

occurred

activity

protected

that

concedes

Respondent
and
Hrutkay

so-called
and
time

when,
and

by

his

Merrifield's

The
did

mine

the

Respondent

not

investigation
Hrutkay

their

Messrs.

to

the

alternative,

Hrutkay

the

prudently

by

that

explained
and
Bostich,

InsPector

know

not

Cantini

of

the

if

nature

substituting

protected

results
then

the

of

Mr.

it

problem

activity

Mr.

Vancura's

definitely

ceased

and

Inspector

3/

action.

precise

not

judgement.

own

Mr.

apprised

did

management
miners
acted

The

in
argues,
Merrifield

when

cease

Mr.

took

admission,
problem.
for
judgment

own

of

extent

when

Cantini

to
the
According
Respondent,
Cantini's
Inspector
failure
complaint
in
his
constituted,
determination
effect,
that
the
elevator's
condition
neither
violated
a
standard
mandatory
nor
safety
constituted
an
imminent
danger.
to
the
Therefore,
according
Respondent,
there
was
no
needfor
the
statutory
protection
Mr.
regarding
comHrutkay's
to
continue
plaint
(Respondent's
Posthearing
Brief,
pp.
11-12;
Respondent's
Reply
7).
Brief,
p.
to

no

investigate

The

the

Respondent's

tor's

inaction

the

Respondent's

falls

interpretation
within
squarely
is
interpretation

Additionally,
were

unreasonable.

fact

that

door

problem,

and
8:15

at

the

fact

a.m.

in

spite

that

the

ambiguity.
dent's

the

elevator

to

Although
it
position,

The

it

of

the

fact

that

enter

the

min•

be

interpreted
interpreted

characterize

Cantini

of

Health

arrived

the

at

dressing

condition
told

him

not

give

and

preparing

by Lloyd

Hrutkay,

he
a

had

observed

conclusive

toward

the

shaft

inform

the

workmen

home.

At

pute

had

instructions

that

the

to

start
were

and
Coal

was

•ne

was

being

lamp

house

ride

called

his

instructed

to

Inspectors

786

the
leave

Manual."

He

Responor

as

observed

the

and

closed

the

elevator,

Cantini

manually,
lamp

house

mine

but

slope,

him
in

same

did

management

the

informed

an

mine.
the

1197.

walk

property

of

the

heard

by
door

of

out

informed
Union

he

informed

was

manually

through

the

the

judgment

closed

was

being

supervisor,

an

support

a.m.

in

proceeding
inspection,

his
to

door

slope

raises

as
improper.
District
Huntley,
W. Nicklow,
Harry

and

Local

they

the

door

U.M.W.A.

that

occurred,

7:20

President,
guard

the

actions:

about

transported

While

to

and

W.

Mr.

he

shaft

relates

poor

Cantini's

inspection,

entrance

Cantini

to

the

response.

point,
in

for

been

yet

actions

2,

mine

the
the

use

considerations

as

Donald

Mr.

Inspector

the

to

to

had

dispatcher
standing
alone,
as
to
tending
either

concerns

despite

these

the

from

that
by mine
the
shaft
management
guard
assigned
Cantini
went
into
the
person.
closed
being
and
manually
persons
being
While

inspec-

points

ready

unreasonable

District

for

repairs

safety

However,

Cantini's

letter

a

no

as

Inspector

a
U-2,
copy
Coal
Mine
and
Safety
the
following
explanation

"Inspector

was

Respondent
the
elevator
were

that

p.

miners'

the

miners

12).•

fact

be

the

Accordingly,

the

used

the

belief

also

Exhibit

offers

of

The

could

could

Complainants

However,
Manager,

all

miners'
safe.

used

motorman

the
was

that

that

Brief,

elevator

of

consequences
the
ludicrous.

of

position,
dispatcher

the

Posthearing

establish

not

its

and

to

legal

realm

contends
of

support

motorman

(Respondent's

whether

3/

slope

the

rejected.

Respondent

In

the

elevator
made
do

the

of
the

a

labor

accordance

or

go
dis-with

decision

a

management.
8:15

at

vator

been

activity.
testimony,
and,

to

to

accept
immaterial

is

management

clearly

that

the

had

refused

respect

to

with

decision

extent,

an

the

"portal-to-portal"

and

on

defend

In

no

decisionto

good

the

9:40

8

or
was

caused

could

have

been

Additionally,
9:40

Brief,

pp.

I

plainants

a.m.

it
reliance

by

on

agreement

ended

unsafe

it.

When

the

Even

remedy

a

from

men

time

such

the

for

work

The

at

as

a

Hrutkay
elevator

movement

that

the

the

mine

7

issue

8:15

7:45
8:15

a.m.

a.m.

and

a.m.

Respondent's

the

the

that

contend

Complainants

pay
at

a.m,

of

result

section

the

between

period

time

lost

was

action.

entering

begin

to

pay.

Mr.

all

raised,

was

a.m.

by

toward

move

testified

Hrutkay

scheduled

were

seek

pay

issue

the

prevented
who

began

8:15

conditions
when

a.m.

to

not

deny

activity.

under

8:15

at

men

Mr.

work

to

has

to

protected

not

were

a.m.

refusal

and

a.m.

protected

by

miners

the
against
Respondent
decision

7

affirma-

to

unprotected

delay
announcement
Respondent's
pay
restraint.
reasonable
used
had
the
Respondent
service
of
out
was
the
elevator
that
contend
the
Complainants
Reply
14; Complainants'
Brief,
Posthearing
p.
(Complainants'
by

the

such

that

and

if

avoided

8-9).
with

disagree
to

a

good

i05(c)(I)
to
faith,

work

over

Section

be

ceased.

that
claiming
discriminatory

delay

until

Merrifield's

circumstances,

operator
miners'

its

between

8:15

the

that

in

solely

and

however,

by

a.m.

protected

actions

The

involved

The

Act.
to

use

thing

a.m.,

retaliatory

case,

time

the

Mr.

the

action

alone.

occurred

after

mine
the

by

activities

motivated

was

Mine

Complainants

The

facie

bargaining

the

adverse

were

safe

elevator

only

the

had

it

reasafety
dispute,
safety
by the
for
miners
the
refusing

collective

the

requires

activities
pay

faith,
to

intent

the

motivated

ele-

for

penalize
Under
danger.
its
to
justify

taken

activities

elevator

the

pronounced

elevator

by

for

pay

by

to

motivated

was

unprotected

1977

the

in

and

have

occurring

of

was

would

activities

i05(c)(I)

toward

he

the

believed,
with

he

unprotected
unprotected
deny

that

The

showing

that

that

for

event

fact,

The

by
and

any
shown

the

use

safe

prima

deny

demonstrated

was

pay

Pasula

foregoing,

the

of

view

in

to

the

thought

miners

Complainants'

the

use

to

policy.

company

tively
activities,

the

to

as

apparently
of
the
appraisal
elected
Respondent
of
provisions
pay

was

that

knew,

intended

management's

the

In

miners

been

Complainants'

by

motivated

was

a.m.

willing
pronounced

that

determination

the

Mine

The

sons.

8:15

to

prior

had

the

of

element
that

shows

clearly

evidence

period

It

wlth

confrontatlon

a

were

appears

it

and

ride

second

the

to

miners

dlsposltive.

test

avoid

to

the

that

fact

not

his

relates

As
the

is

a.m.

after

Hrutkay
repaired.

Mr.

the

order

in

silent

remain

simply
Similarly,

to

a

pay

remedy

the

be

unsafe

dispute.

the

covering

authorizes

a
or

such

that

contention
refusal

unhealthful.

Therefore,

time
to

period

from

work

under

It

according

does

8:15

the

a.m.

conditions
not

the

entitle

considerations

authorize

Complainants

9:40

to

believed,
a
a

Com-

a.m.

refusal

remedy

in
to

for

the

time

vision

period

tion

in

i05(c)(i).

If
and

suffers

lawful

a

the

the

dispute
securing

self-help

remedies

discrimination,
to

means

Furthermore,

would

pay

for

statute

Such

miner

a

by

encompassed

forth

set

not

are

then

do

redress

violence

for

encompassed

section

i05(c)

the

to

violations

pro-

of
the

by

accords

sec-

statute.

him

remedy

a

it.

secure

additional

consideration
is
The
work
noteworthy.
stopthe
immediately
refusal
to
work
following
conditions
in
believed,
to
be
unsafe.
good faith,
The
of
these
timing
two
events
is
attributable
to
chance.
The
entirely
would
not
pay
dispute
have
arisen
at
8:15
had
a.m.
Mr.
not
and
Hrutkay
Mr.
Merrlfleld
posed,
not
the
answered,
question
at
that
concerning
pay
in
time.
precise
Under
point
other
the
miners
circumstances,
not
have
learned
of
might
the
company's
decision
until
received
their
they
checks
several
pay
later.
Their
days
should
be
the
rights
in
same
both
instances.
Section
would
i05(c)(i)
not
page
under

authorize

a

construed

to

In

8:15

pay

stoppage

of

the
7

at

a.m.

denying
ing times

them

Conclusions

of,

and

i.

a.m.,
between

4/

The

for

the

Complainants
Respondent's

the

First,
filed

Mine

and

properly
Second,

llO(k),

alties

to

attaches
Labor

that

these

steps

penalty

Corporation

Complainants
activity
starting

that

violation

and

the

1977

for

of

the
section

their

regularly

jurisdiction

over

for

two

penalty
ii0

of

Commission's

Somerset
Act

be

not

scheduled

to

protected
times

by

and

Respondent
i05(c)(I)

dis-

scheduled

start-

of

an

i05(c)

the

No.
all

at

assessment

section

filed

was

its

Mine

the
of

denied

by

of

60

times

subject

Mine

have

relevant

1977

to

section

been
to

appropriate
the

matter

civil
Mine

this

penalty

Act.

reasons.

solely
proceedings

the

1977

pursuant
before
Mine

authority

Act.

to

the

i05(c)(3)

Commission

Accordingly,
penalties

it

be

must

civil

assess

of
be

must

has

not

invoked.
the

provisions
collectively
be
proposed
by
in
matters
penalty
it

by

has

should

in

conclude

in

Judge
proceeding.

of

section

the

further

Law
this

Civil

to

that

the

scheduled

between

prayed

Act.

therefore

engaged

a.m.

Complainants
time
period
4/

proceeding

pursuant

been

I

violation
be

the

that

8

regularly

1980.

provisions

will

request

conclude
and

their

Mines

subject
proceeding.

concluded

I

and

case,

Law

to,

Bethlehem

1977

former.

a.m.

30,

parties

to

the

latter

the

Administrative

the

2.

the

in

7:45

such

of

The

in

foregoing,

for
the
pay
8:15
a.m.

and

V.

This

it

i05(c)(i)
on
January
against

criminated

occurred

authorize

view

section

issue

work

work

begin

one

the

over

intends
have

the

not

to

been

Commission

of
the

105(a),

sections

indicate

that

Secretary
when

of

Labor.

operator

the

Secretary's

followed
would

1977

the

contest

in
be

this

premature

788

i05(c)(3),

the

Mine
has

105(d),

ll0(a),

Act

civil
requires
Commission
jurisdiction
notified
the
Secretary
assessment.
penalty

case,

the

at

this

assessment

stage.

of

a

penof
Since
civil

3.

affected

on

a.m.

in

activity

protected

1980,

commencing

ending

on

a

this

in

case

all

of

behalf

on

in

January

30,

The

activity

January
9.

7

at

The
Such

of

filed

the

insofar

and

that

such
this

and

inpart,

contrary

to

in

this

case.

8

a.m.

by

8:15

a.m.

and

1977

Mine

scheduled

starting

of

of

Mine

1977

a.m.

8:15

at

the

1977

forth

set

and

a.m.

the

scheduled

Complainants
them
pay
denying

of

law

7:45

a.m.,

i05(c)(i)

work

begin

to

and

Fact

in

they

as

are

did

a.m.

Act

Mine

IV,

Part

to

their

from

not

engage

on

are

supra,

considered

be

can

considered
been

have

rejected
and

the

on

law

Law

identified

submissions

been

facts

the

of

Conclusions

posthearing

conclusions

they

decision

a.m.

the

the

i05(c)(i)

have

conclusions,

findings
decision,

7:45

herein.

Findings

submissions,

findings

a.m.,

of

7

at

9:40

to

to

section

incorporated

parties

work
begin
by section

a.m.

and

a.m.

conclusions

the

and

Proposed

Vl.

7:45

a.m.,

scheduled

of

to

against

Complainants
by
protected

All

their

discriminated

times

1980.

reaffirmed

8:15

from

starting

30,

at

unprotected

1980,

scheduled

7

at

i05(c)(i)
regularly

section

by

scheduled

Respondent

The

work

begin

a.m.

activity

engaged

8.

8:15

at

Complainants

The

work
begin
regularly

in

complaint
Commission

Review

that

occurred.

not

discrimination

to

30,

7.

in

had

investigation

an

concluded

and

case

Act

Mine

Health

and

engaged

6.

Act

the

January
and

times

8

filed

scheduled

Complainants

The

a.m.

Act

the

this

miners.

5.
8

of

matter

1977

of

properly
Safety

Mine

Federal

the

with

subject

105(c)

Segedi

Mark

4.

is

section

of

violation

the

conducted

Administration

Health

and

Safety

which

dispute

the

of

Mine

The

or

to

fully,
expressly
that
ground

because

they

in

and
or

they
are

I,

Part

the

to

except

supra.

proposed

contained

have

extent

affirmed

impliedly
in
are,
immaterial

whole

or

to

the

ORDER

be, and hereby
proceeding
above-captioned
work
at
to
scheduled
who
were
begin
those
to
DIS•SSED
as
Complainants
is,
G.
B.
identified
as
are
Such
1980.
Complainants
8:15
a.m.
on
30,
January
L.
T.
A.
S.
Pysh;
Jestat;
C.
J.
W.
Zukauckas;
D.
R.
Clark;
Miller;
Filby;
L.
S.
C.
Jr.;
J
Durko,
R.
Rocco;
G.
Wheeler;
D.
T.
R.
Phillips;
Harris;
J.
E.
M.
Timlin;
E.
Toth;
J.
T.
R.
Karpoff;
J.
R.
Rados;
Kennedy;
Pruski;
A.

IT

IS

ORDERED

the

that

.

H.

G.

Ambrosy;

W.

B.

permanent

IT

IS

job

A.

FURTHER
classification

Dean;

and

ORDERED

G.

S.

that

held

by

T.

McKeta.

(I)
Respondent
the
following

789

immediately
Complainants

determine
on

January

the

30,

1980,

and

the

(2)multiply

forth

set

as

number

in
of

the

Appendix
hours

of

standard

A,
back

Part
pay

I,
to

hourly

wage

of

collective

the

which

each

rate

respective

for

that

classification,

bargaining

by

agreement,
is

Complainant

entitled:

Regularly
Starting
January

Complainant

Scheduled

Hours

Time;

Back

30,

1980

of

Pay
Due

S.

J.

Ezarik

8:00

a.m.

E.

P.

Avery

8:00

a.m.

.25

A.

Antanovich

8:00

a.m.

.25

.25

E.

H.

8:00

a.m.

.25

M.

Zoldak

8:00

a.m.

.25

J,

Olesky
Avery

8:00

a.m.

.25

8:00

a.m.

.25

C.

Rosemier,

W.

E.

L.

Casper

Jr.

Clark

8:00

a.m.

.25

8:00

a.m.

.25

F.

Paulish

8:00

a.m.

.25

A.

R.

8:00

a.m.

.25

Barker

A.

Rusilko

C.

L.

A.

J.

Phillips
Seykoski,

J.

M.

Jiblets

Jr.

8:00

a.m.

.25

8:00

a.m.

.25

8:00

a.m.

.25

8:00

a.m.

.25

W.

L.

Brown

8:00

a.m.

.25

S.

T.

Forte

8:00

a.m.

.25

G.

J.

Evans

8:00

a.m.

.25

K.

R.

Watkins

7:45

a.m.

.50

J.

J.

Kurucz

8:00

a.m.

.25

M.

L.

Hoyt

8:00

a.m.

.25

T.

J

D.

Wytovich

Smith

.

Stauffer

R.

D.

F.

Pabian

Burger

T.

M.

C.

Zukauckas

R.

Mulac

T.

P.

Grimes

8:00

a.m.

.25

7:45

a.m.

.50

8:00

a.m.

.25

7:45

a.m.

.50

8:00

a.m.

.25

8:00

a.m.

.25

8:00

a.m.

.25

8:00

a.m.

.25

S.

Clark

8:00

a.m.

.25

F.

Perri

8:00

a.m.

.25

J.

Viara

8:00

a.m.

.25

W.

White

7:45

a.m.

.50

N.

Guriel

7:45

a.m.

.50

J.

C.

7:45

a.m.

.50

Fiem

S.

Robertson

7:45

a.m.

.50

C.

J.

Washlack

7:45

a.m.

.50

R.

B.

Taylor

J.

Fidazzo

R.

L.

R.

A.

Emery
Chaney

7:45

a.m.

.50

7:45

a.m.

.50

7:45

a.m.

.50

7:45

a.m.

.50

Bizet

T.

L.

T.

Taylor

F.

DiBa

7:45

a.m.

.50

7:45

a.m.

.50

silio

7:45

a.m.

.50

J.

Antanovich

7:45

a.m.

.50

J.

Fidazzo

7:45

a.m.

8:00

a.m.

S.

Kotchman

C.

E.

Montgomery

7:00

a.m.

J.

E.

Carnatham

8:00

a.m.

J.

G.

Zerambo

8"00

a.m.

R.

S.

Martos

7:00

a.m.

A.

J.

Martos

8:00

a.m.

C.

M.

Vilcesk

7 "00

a.m.

K.

E.

a.m.

J.

J.

Wiley
Stepko

7:00
7:00

a.m.

F.

V.

Femia

8 : O0

a.m.

S.

W.

Perchinsky

7 "00

a.m.

7:00

a.m.

S.

Ezarik

J.

S.

Glemba

7:00
7

a.m.

O0

a.m.

T.

E.

Zgorliski

A.

R.

Fiem

7:00

a.m.

R.

L.

Sciechitano

7:00

a.m.

J.
R.

Stepko
Hopkins

P.

A.

7:00

a.m.

7:00

a.m.

Skirchak

7:00

a.m.
a.m.

L.

N.

Hrutkay

7:00

G.

C.

Denny

7:00

a.m.

7 : O0

a.m.

G.

Bostich

D.

L.

Tiberie

7 -00

a.m.
a.m.

J.

H.

Zamiska

8:00

J.

F.

Piasecki

7:45

a.m.

8:00

a.m.

R.

Ga tling

B.

F.

Vischio

7:45

a.m.
a.m.

J.

L.

Antanovich

8:00

J.

S.

Kubovcik

8"00

a.m.

8:00

a.m.

N.

Bosick

M.

J.

Rebich

L.

Huey

J.

Motichak
Lacock

E.

J.

M.
E.

Jr.
Poye,
Ambrosey

J.

E.

8:00

a.m.

8:00

a.m.

8:00

a.m.

8:00

a.m.

8:00

a.m.

8:00

a.m.

Puskarich

8:00

a.m.

Thompson

8:00

a.m.

K.

G.

L.

Rossero

8:00

a.m.

J.

Linnen

8:00

a.m.

L.

DiBasilio

8:00

a.m.

A.

Ki ski

8:00

a.m.

E.

Deresh

8 "00

a.m.

8:00

a.m.

J.

J.

R.

E.

J.

L.

DiBasilio
Main

8:00

a.m.

Johnson

8:00

a.m.

791

.50
.25
1.25
.25
.25
1.25
.25
1.25
1.25
1.25
.25
1.25
1.25
1.25
1.25
1.25
1.25
1.25
1.25
1.25
1.25
1.25
1.25
1.25
.25
.50
.25
.50
.25
.25
.25
.25
.25
.25
.25
.25
.25
.25
.25
.25
.25
.25
.25
.25
.25
.25
.25

C.
this

IT

order,

annum

FURTHER
and

the

day
pay

award

D.

IT

which

upon

interest

IS

E.

IT

records

the

unfavorable

F.

IT

against
order
the

the

onJanuary

30,

FURTHER

IS

Part

such

this
the

opportunity
to

expenses
order.

IT

of

this

unauthorized

at

the

in

clear

Part

of

B

the

Respondent
Complainants

back

the

this

be

recovered

heard,

FURTHER

post

mine

where

per

refrain

from
in

of

in

connection

to

confer

and

of

Part

B

file

an

B

section

Judge

the

I

retain

the

a

copy
notices

to

agree

unable

to

agree,
60
days

will,

that

the

of

this

affording
reimbursable
this

Respondent

from
of

2Fohn F.

Cook

on

placed

the

elements

60

days.

JAdminlstrative

from
expenses.

the

parties

costs

and

Part

15

order

normally

are

to

the

B

of

an

this

proceeding.

within
and

period

792

in

of

of

as

and

costs

identified

protected
consecutive

of

of

decision

miners

within

after

amount

jurisdiction

to

/

attempt

will,

this

i05(c)

Complainants
including
proceeding.

expenses,
with
this

statement

Complainants

ORDERED

the

of

are

order

prior

discriminating

and

they

itemized

Law

by

this

and

costs

If

expenses.

determine

unobstructedand
there,
for
a
removal,

all

all

occurred

Part

under

reimburse

incurred

for

and

employment

that

identified

Respondent

directed

purpose,

order,

of

B

percent

pay

order

activities

protected

are

the

pay

theRespondent

that

Administrative
be

Part

days.

are

in

to

IS

H.

30

order

decision,

this

For

•the Respondent
next

this

costs

identified

Thereafter

posted

parties

of
of

in

which

reasonably

the

Complainants
date

6

Commencing on the day following
1980, and ending
on
the
such
day when

that

the

ORDERED
of

B

fees,

amount

in
of

rate

awards,

concerning

any,
1980.•

ORDERED

FURTHER

in

boards

any

identified
the

at

Act.

for

the

it

that

within

activities

attorney's

date

ORDERED

herein

o/

Counsel

the

FURTHER

because

IT

was

Complainants
interest

paid.

with

G.

•

actually

interfering

identified

pay
due

if

IS

Mine

back

pay

or

1977

the

are,

references,
a.m.

that
awarded

FURTHEK ORDERED that
Complainants
identified

IS

of

such

•

is

awarded

8:15

ORDERED

hereby

their•respective

on

back

to

IS
be

"

Law

Judge

days
all
and
and

from

the

bulletin
shall
from

keep

Distribution:

Yablonski,
Trust
Washington
J.

Kenneth
500

Thomas

Mines

18016

Harrison

B.

Street,
Office

of

Jr.,
Combs,
Washington,
NW.,

Esq.,

Solicitor,

U.S.

the

VA

Arlington,
Administrator
ment

Administrator

Standard

Industrial

Senior
Esq.,
Corporation,
Mail)
(Certified

Ehrke,

W.

Bethlehem
PA

Yablonski,
King,
Esq.,
Washington,
Building,

of

22203

DC

(Certified

Leckie,
(Certified

&

Costello
PA

15301

Attorney-Coal,
Bethlehem,

Relations

Room

1871,

Martins

Tower,

United

Mine

Workers

of

20005

(Certified

for

Metal

and

Nonmetal

for

Coal

Mine

Safety

4015

Labor,

Safety

Mine

America,

900

15th

Mail)

of

Department
Mail)

Mail)

and

Wilson

Health,

Boulevard,

U.S.

Depart-

Labor

and

Health,

Distribution

793

.-

U.S.

Department

of

Labor

IIECK
UM.•ER

NAME

Jan.

30,

Ant

A.

349

E.

76

510

503

COMPLAINANT

Jan.

REGI•JAItLY

"

8

anovich

8

Avery

P.

8

Ezarik

J.

S.

8

Mayernlk

M.

Jr.

STATUS

30,

FOR

AMOUNT
HOURS

0
6.4

(RSST-8AM)

8

Rosena

A.

W.

598

-

8

Wytovich

M.

35

-

8

Nonack

D.

P.

62 ;

None

8.5

8.5

Pape

F.

W.

273

i.

6.6

8

Rusilko

A.

114

R.

A.

112

H.

J.

4•9

8

Paullsh

F.

674

"

8

Casper

L.

152

"

8

E.

W.

132

8

Avery

C,

87

"

8

Olesky.

J.

72

"

8

Zoldak

M.

655

Clark

Thompson

i0

"

i.

6.6

1.6

6.4

6.6

1.6

6.4

6.6

3rd

1.4
None

6.6

(RSST-8AM)

INE

4

1.4

1.4

6.6

"

I0

-

8

Abs

6

8

Vahaly

J.

611

""

-

-

(RSST-8:15AM)

Wo

1.4
4
Wor

Work

None

8.5

Wor

None

8.5

Wor

None

8.5

Wor

None

8

6, 6

-

OF

REQUESTED
None
i.

i .4

1.4

6.6

8

G. -Miller

B.

21

Barker

ist

'
80

WOI•(ED

PAID

-

6.6

"

1.4

6.6

8

Scott

E.

36

(RSST-8:15AM)

8

KI,.T :

SUMMARY

2nd

HOURS

"

8

Rosemler,

(RSS

'80

AND

HOURS

SClIEDULED
m

H.

E.

Filby

R.

78

4

i.

1.4

6.6

None

0

Wor

•

J.

A.

lot

L.

C.

89

Phillips
Seykoski,

8

•. 6

"

6.6

(RSST-SAM)

8

Jr.

1.4
1.4

c.iicz
:'1U;4 il Elt

C.

279

A.

16o

D.

129

D.

123

280

:.

322ii

NAME

Jan.

M.

J,

Jan.

REGLq,ARLY

8

R.

G.

137

F.

M.

664

8

Pabian

F.

498

8

Philllps

D.

474

T.

R.

L.

Wo

1,/•6

R.

444

D."

439

T.

4381

M.

436

J.

435

R.

K.

434

J.

o.

402

J.

Evans

Watkins

8
8

Kurucz

8

Smith

8

HoyC

8

Stauffer

8

Wyto•ich

-2-

'80
IIOURS

8

Clark

Zukauckas

8

Pysh

C.

171

L.

30,

FOR

AVOUNT
HOURS

OF

REQUESTED.
Work

None

6.6
=

Volu

None
1.4

6.6

15AM)

1.4

6.6

"

6.6

"

1.4
1.4

6.6

6.6

(RSST-8AM)

1.4
1.1

6.9

"

1.4

6.6

"

6.6

"

6.9

(RSST-8AM)

6.9

(RSST-7:45AM)

"

1.1
1.1
1.4

6.4

(RSST-7:45AM)

1.6

7.3

(RSST-8AM)

.7

1.4

6.6

Perso

None

0

8-

Conner

'
80

WOIU(ED

PAID
0

1.4

6.6

(RSST-8:I5AM)

(RSST-8

8

Jestat

8

JibleCs

T.

235

J,

"

8

Brown

8

Forte

C.

3•t

D.

30,

AND

HOURS

$CIIEDULED

8-

Johnson
W.

A.

S.

L.

W.

3-45

T.

8-

Jr.

Cursi,
J.

L.

T.

S.

352

8

R,

392

went

8

Harris

(RSST-8:

6.5

15AM)

"

8.5-

Zaharsky

1.5

1.4

6.6

1.1

6.9

45AM)

(RSST-7:

8

Wheeler

Floa

None

0

went

J.

.7
.7

7.3

1.6

6.9

(RSST-8AM)

8.5

Burger

7.3

(RSST-8:15AM)
"

8

Rocco

M.

"

8.5

Zukauckas

1.6

6.9

"

8.5

Mulac

6.9

1.6

=IIECK
:;U:.•I•I,;R

Jan.

30,

-3-

'80

8.5

Grimes

AND

flOURS

NAME

flOURS

SCIIEDULED

Jan.

I{ECULARLY'

30,

'

80

WORKED

PAID

FOR

AHOUNT
HOURS

None

0

8-

1.6

6.4

8

Viara

(RSST-8AM)

8

Perri

F.

"

8

T." Pruskl

L.

8

Durko,

S.

42

M.

R.

28).

Stachowicz

S.

668

Clark

S,

630

Error

P.

513

P.

T.

477

(RSST-8AM)

6.9

8.5

OF

REQUESTED.

.7

7,8

1.6

0

None

Flo

•

(RSST-SAM)

8,5

Merashoff

Jr.

1.6

6.4

1.4

6.6

1.4

6.6

None

9..0

8.5

None

0

8.5

1.6

6.9

B.

R.

Mox,

S.

188

J.

C.

1.31

Robertson

S.

117

C.

J.

82

8.5

Guriel

N.

73

8.5

White

W.

57

Royster

D.

50

J,

504

431-

Fiem

(RSST-8:15AM)

"

(RSST-7-45AM)
"

6.9

"

8.5

went

Abs
disp

dis

.7

6.9

6.9

8.5

Washlack

(RSST-7:45AM)

8.5

Abs

1.6

7.8

"

8.5

"

0

8-

Jr.

Taylor

1.6

.7

7.8

None

1.6

h:

Perso
went

:

Chaney

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•"

i

SAFETY

AND

:

333

W.

HEALTH

COLFAX

DENVER,

SECRETARY

LABOR,

OF

Petitioner,
V.

MAGMA

COMPANY,

COPPER

Respondent.

ORDER

After

issuing

his

undersigned

Judge

became

of

the

and

order

are

made:

decision,
conform

i)

in

and

the

conclusions

to

the

body

The

first

page

)
)

A/O

NO.

No.

PROCEEDING

NO.

DOCKET

A/O

NO.

DOCKET

)

A/O

NO.

No.

)

DOCKET

)
)

A/O

)
)

MINE:

79-351-M

WEST

02-01391-05004

No.

)

79-158-M

•ST

02-00842-05007

No.

)

79-79-M

•ST

02-00151-05009

DOCKET

)

WEST

79-382-M

02-00151-05011
NO.

DENV

79-485-PM

02-00151-05008

•NUEL

SAN

CORRECTION

above

captioned

on

between

Sothat

page
30

the

cases,

discrepancy
order.

decision,

the

(14),

fourteen

79-79-M."

following

fourteen

(14)

body

corrections

should

§ 57.12-16

C.F.R.

the

conclusions

the

the

docket

number

page

Dated:

that

read:

alleged

as

in

of

"Docket
Number
heading,
"Docket
number
WEST
heading,
an
"Citation
heading
entry
reading
is

also

(15),

on

penalty

assessed

the

a

$50.00"
should

fifteen

total

above

inserted

is
Under

377071:

instead

Decision

DOCKET

A/O

and

79-351,"

the

)
)

violated

Number

On

CIVIL

377071."

WEST

3)

PENALTY

sentence

Citation

On

)

clerical

a

of

"Respondent
2)

80204

the

of

aware

AVENUE

COLORADO

OF

decision

COMMISSION

)

AND

(MSHA),

ADMINISTRATION

HEALTH

SAFETY

MINE

REVIEW

inserted.

the

last
is

$292.00.

February
Volume

Pg.

4,
3,

1981

Number

345

800

The

total

for

the

order,
$342.00

$50.00.

be

2

corrected

line

of
to

be

that

Additionally,

(14),

fourteen

page

Number

"Docket

sub-heading

WEST

79-158-M"

the

second

line

is

corrected

to

A.

Carlson

,ruder

the

read

"Citation

$225.00."

376969

Number

on

hn

ministrative

Law Judge

Distribution:

Alan

Raznick,

M.

of

Office
United

States

Department

11071

Federal

Building

450

Golden

San

Francisco,

N.

Doublas

Twitty,
1700
100

March

of

Labor

AVenue

Gate

California

Grimwood,
Sievwright
House

Towne
West

Phoenix,

Dated:

Esq.

Solicitor

the

94102

Esq.
&

Mills

Tower

Claredon
85013

Arizona

6,

1981

*U s GOVERNI4ENT PRZNT|NG

801

OFFICE:

|gqBl

341-638/4153