JUNE 1984

Commission Decisions
6-01-84
6-05-84
6-14-84
6-14-84
6-15-84
6-26-84
6-27-84

Belcher Mine, Inc.
Roger Sammons v. Mine Services Co.
MSHA/James Clarke v. T P Mining, Inc.
United States Steel Corporation
Richard Bjes v. Consolidation Coal Co.
United States Steel Corporation
UMWA/Billy D. Wise v. Consolidatiop Coal

SE
84-4-M
SE
82-15-D
LAKE 83-97-D
WEST 80-386-RM
PENN 82:-·26-D
LAKE 81-102-RM
WEVA 82-38-D

Pg. 1390
Pg. 1391
Pg. 1401
Pg. 1404
Pg. 1411
Pg. 1423
Pg. 1447

6-01-84 Robert Simpson v. Kenta Energy, Inc.
KENT 83-155-D
CENT 84-8
6-04-84 Turner Brothers, Inc.
6-04-84 Peabody Coal Company
WEST 84-66
6-05-84 Roger L. 'Welch v. Chestnut Ridge Coal Co. WEVA 84-5-D
6-06-84 Shamrock Coal Company, Inc.
KENT 83-131
PENN 83-103
6-06-84 U.S. Steel Mining Company, Inc.
6-08-84 Mettiki Coal Corporation
YORK 84-8
PENN 83-143
6-08-84 United States Steel Mining Co., Inc.
6-13-84 Joseph Ceremuga v. Cotter Corporation
WEST 83-114-DM
6-14-84 Magma Copper Company
WE:;T 83-17-M
6-14-84 Medicine Bow Coal Company
WEST 81-163
6-14-84 Medicine Bow Coal Company
WEST 81-163
6-18-84 Amherst Coal Company
WEVA 83-271
6-19-84 Vesta Mining Company
PENN 83-122-R
6-20-84 MSHA/Teddy Bentley v. Beth-Elkhorn Corp. KENT 84-157-D
6-21-84 MSHA/Loren Nielsen v. Stewart Stone, Inc. CENT 84-11-DM

Pg. 1454
Pg. 1482
Pg. 1489
Pg. 1490
Pg. 1492
Pg. 1502
Pg. 1507
Pg. 1510
Pg. 1521
Pg. 1522
Pg. 1529
Pg. 1537
Pg. 1539
Pg. 1547
Pg. 1558
Pg. 1560

Administrative Law Judge Decisions

JUNE
The following cases were directed for review during the month of June:
Dilip Paul v. P.B.-K.B.B., Inc., Docket No. CENT 83-42-DM.
Interlocutory Review of April 24, 1984 order.)

(Judge Kennedy,

Secretary of Labor, MSHA v. U.S. Steel Mining Company, Docket No. WEVA 82-390-R,
etc. (.Judge Steffey, April 30, 1984}
United Mine Workers of America v. Peabody Coal Company, Docket No. LAKE 83-69-D,
KENT 82-103-D, etc. (Judge Kennedy, Interlocutory Review of April 24, 1984 order.)
Secretary of Labor, MSHA v. Pittsburg & Midway Coal Mining Company, Docket No.
CENT 83-65. (.Judge Broderick, May 17, 1984.)
Secretary of Labor, MSHA v. Duval Corporation, Docket No. CENT 80-312-M.
Morris, May 22, 1984).

(Judge

Review was denied in the following cases during the month of June:
George Jack v. Mid-Continent Resources, Inc., Docket No. WEST 83-72-D.
Carlson, April 26, 1984}.

(Judge

Secretary of Labor, MSHA v. Metric Constructors, Inc., Docket No. SE 80-31-DM.
(Judge Koutras, April 26, 1984)
Lawrence Everett v. Industrial Garnet Extractives, Docket No. YORK 83-6-DM.
(Judge Broderick, May 14, 1984).

COMMISSION DECISIONS

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

June 1, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. SE 84-4-M

v.
~

BELCHER MINE, INC.
ORDER
The administrative law judge's letter of May 25, 1984, purporting
to explicate his April 26, 1984, decision in this matter is rejected as
an improper circumvention of the Commission's Rules of Procedure, and is
hereby returned to him • .£t• Pontiki Coal Corp., Docket No. KENT 83-181-R,
etc. (Order, May 23, 1984); canterbury Coal Co., 1 FMSHRC 335 (1979);
Peabody Coal Co., 2 FMSHRC 1035 (1980); Penn Allegh Coal Co., Docket No.
PITT 79-97-P (Order, January 3, 1979).

1390

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

June 5, 1984

ROGER E. SAMMONS

v.

Docket No. SE 82-15-D

MINE SERVICES CO., a
wholly-owned subsidiary
of Druinmond Coal Co.
DECISION
This discrimination case arises under section 105(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et~· (1982), and
involves an operator's alleged discriminatory discharge of a miner. A
Commission administrative law judge concluded that the operator did not
violate the Mine Act by discharging the miner, and dismissed the miner's
discrimination complaint. 4 FMSHRC 1713 (September 1983)(ALJ). We
affirm the judge's decision.
Mine Services Company, a wholly-owned subsidiary of Drummond Coal
Company, performs construction work at surface coal mines and coal
preparation facilities. The complaining miner, Roger Sammons, was
employed as an ironworker by Mine Services.at its Short Creek, Alabama,
surface coal mine construction project from August 27 through September 21,
1981. Mine Services, a signatory to the National Coal Mine Construction
Agreement ("the Construction Agreement") between the United Mine Workers
of America ("UMWA") and the Association of Bituminous Contractors, hired
Sammons and six other ironworkers from a UMWA District Panel. Under
Art. XVI(h) of the Construction Agreement, an employer could refer a new
employee back to the panel during the first 30 days of employment "if
the [e]mployer decides that the employee is not able to step into and
perform the work of the job •••• "

139-1

Mine Services first utilized Sammons to load and unload steel
beams. Sammons then was assigned to work as an ironworker connector 1../
for about two weeks at a partially completed "sample house," a structure
where mined ore was to be sorted and sampled. He worked with Billy
Canada and Donald Gravlee, also connectors.
In early September, Sammons, acting as Union Grievance Committeeman, asked Project Superintendent Edward Bates to post certain boom
truck operator jobs for bidding, rather than unilaterally assigning such
operators. Sammons stated that qualified operators were needed for
safety reasons. Boom trucks were used to load steel onto flatbed
trucks for transportation to work areas. Bates, who considered Sammon's
request governed by the Construction Agreement, informed Sammons that
the agreement allowed Mine Services a grace period of 60 days before the
jobs had to be posted for bidding, and that the two operators Bates had
initially assigned to the jobs were qualified. Sammons also complained
that the safety belt provided to him by Mine Services was too large and
did not fit properly. Sammons was permitted to use his own safety belt
after this complaint.
About September 14, 1981, after construction on the sample house
was almost completed, Superintendent Bates assigned Sammons, Canada,
Gravlee, and other connectors to do connecting work on a large refuse
bin. The structure was to consist of a rectangular paneled bin tapering
on its underside to a dump chute. The bin was to be supported above
ground level by four vertical steel beams located at the four corners of
the bin and reinforced on each side by two sets of diagonal steel braces.
The connecting work involved on the refuse bin was more complicated than
that done on the sample house.
As the braces for the refuse bin were hoisted by crane, the connectors
were expected to guide the braces into place and to bolt the ends of the
braces to the vertical beams, using bolt holes pre-cut in the steel.
This work sometimes required the connectors to climb and to straddle or
stand on the steel about 30-32 feet above the ground. Ordinarily,
connectors were expected to make such connections by climbing the steel.
On occasion, the pre-cut holes in the diagonal braces were "out of.plumb"
and did not match up with the holes in the vertical steel beams. In such

1./

An ironworker connector steadies and guides structural steel members
or beams as they are hoisted into position by crane or other means for
the framework of a building or other structure. See Webster's Third
New International Dictionary (Unabridged) 481 (1971). Typically, the
connector installs at least one bolt into each end of the .steel member
to connect it in place. A "bolt-up man," a lower-paid ironworker,
finishes the bolting work after the initial connection.

1392

cases, it would be necessary for the connectors to pull or pry the steel
members into alignment by inserting a spud wrench through the holes (a
procedure called "spudding the beams") or to burn new holes in the steel
in order to .make a proper connection. New holes could be burned by a
connector while working on the steel or from a basket (a structure with
posts and handrails) hoisted by a second crane. However, burning new
holes was a last resort. If too many extra holes were burned, the
building would be out of plumb when complete.
After observing the connectors' work on the refuse bin for the
first few days following their assignment to that project, Bates became
dissatisfied with their slow progress. The foreman on the refuse bin
project complained to Bates that "he couldn't get [the refuse bin]
together with the people that he had." Tr. 91. Acco.rdingly, on the
afternoon of September 16, 1981, Bates met with Sammons, Canada, and
Gravlee, the three connectors whose lack of progress was the focus of
Bates' concern, and expressed disappointment over the slowness of their
work. According to management's contemporaneous notes of the meeting,
Sammons responded that the connectors needed another crane and a basket
from which to make the connections in order "to speed it up." Sammons
then stated, "The going was slow mainly because of a safety situation."
Bates replied, "The safety part of the job I agree with but not with
extra equipment." (Bates testified at the hearing that connecting work
was not to be performed out of a basket except under abnormal conditions.)
Gravlee conceded that he could not do the connecting work. Bates thanked
Gravlee for his "honest" answer and stated, "I want honest answers as to
the progress of the erection. There were only four pieces of iron hung
today." Canada offered. as an explanation the fact that the steel had
been wet until approximately 9:45 a.m. Bates replied, "I understand
about steel being wet. [Y]ou don't work on wet steel ever. The problem
is I need connectors that can do the job." Sammons testified that he
repeated his complaint that the safety belt supplied by Mine Services
did not fit properly, and the notes of the meeting reflect that he also
stated, "I won't do anything unsafe, if that means working slow, then
that's the way I'll do it." Bates responded, "All I ask is that you
give me your best shot." The record on the meeting contains no more
specific testimony regarding safety. !:../
Bates tested all seven connectors two days later by observing and
evaluating them as they performed connecting work on the refuse bin.
Bates had Sammons and Canada erect one diagonal brace. Bates concluded
that they did not appear to be comfortable on the steel and did not

!:..I

Sammons' contention on review that he also complained to Bates at
this meeting that there were no taglines (a rope tied around the steel
beams.to pull them into place) is not supported by the record. It was
Canada who complained, and he complained to a foreman, not to Bates.

1393

handle their tools properly. In a subsequent report to his superior,
Bates stated, "They had difficulty with [the lower] connection, and
wanted to burn holes. The connection was made but it was apparent they
did not know exactly how to utilize their tools to the best advantage."
Sammons, assisted by Canada, then moved to the middle section of the
diagonal and made the connection at the "X" point of intersection between
the two diagonal braces. However, contrary to what Bates believed
should have been done next, Sammons did not proceed to climb to the top
of the diagonal, where the brace was resting in place over a gusset
plate, to make the needed upper connection, nor did he climb the diagonal
to remove a loose. "choker" (a wire rope connected to a crane that holds
a steel member). Instead, Sammons and Canada started to hook a basket
to the crane. ]_/ Bates ordered them down. He did not ask why they needed
the basket and they did not offer an explanation. Ba.tes then directed
Ralph Smith, another connector, to climb the diagonal to make the connection.
Smith climbed the steel and discovered that the holes were out of plumb.
The connection was eventually made by another connector working from a
basket.
After the test, Bates concluded that of the seven connectors tested,
two were good and two were acceptable, but that Sammons and Canada
lacked the ability to perform as connectors. The remaining connector,
Gravlee, admitted that he was afraid to climb the steel and later was
allowed to bid on another, lower-paying job. Bates terminated Sammons'
and Canada's employment on September 21, 1981, before their 30-day
probationary period ended, by referring them back to the UMWA District
Panel pursuant to the referral-back provisions of the Construction
Agreement. Bates' personnel memorandum on the subject stated, "They do
not perform as connectors."!!._/
Sammons filed a discrimination complaint under the Mine Act with
the Secretary of Labor on September 24, 1981. After the Secretary
declined to prosecute the complaint on his behalf, Sammons filed his own
discrimination complaint with this independent Commission pursuant to
section 105(c)(3) of the Mine Act, 30 U.S.C. § 815(c)(3). The complaint
stated:
)_/
Sammons testified that he needed the basket because it was apparent
that the holes were out of plumb and new holes would have to be burned
in order to make the connection, and also because the diagonal was not
secure enough to climb. Canada's testimony corroborates Sammons'.
!!._/
Sammons and Canada filed grievances under the Construction Agreement after Bates referred them back. On October 19, 1981, after Sammons
had filed his Mine Act discrimination complaint with the Secretary of
Labor, Mine Services and the UMWA local union settled the two grievances
by agreeing that Mine Services would reinstate Canada with full pay and
that Sammons' grievance would be withdrawn. Sammons' grievance was
withdrawn by the local union and Canada was reinstated. Sammons filed
a charge with the National Labor Relations Board regarding the union's
withdrawal of his grievance. The record does not disclose the outcome
of that complaint.

1394

While employed with [Mine Services, Inc., at] the
Short Creek project, there were no complaints made
to me about my work. I feel therefore that the only
reason for me being relieved of my duties was the
complaints which I made about getting safe operators,
safety belts, building cages and getting taglines to
be used on the larger pieces of steel.
At the hearing before the Commission administrative law judge,
Sammons contended that he was discharged in retaliation for making
safety complaints. In his post-hearing brief to the judge, Sammons'
counsel suggested for the first time, with reservations discussed below,
that Sammons also was discharged because he engaged in a protected work
refusal during the September 18 test when he did not ~limb the upper end
of the diagonal brace. In his decision, the judge characterized the
major issue as whether Mine Services referred Sammons back because Bates
believed him to be an incompetent connector, or in retaliation for
Sammons' safety complaints. The judge concluded that none of Sammons'
complaints was related to safety. He credited Bates' testimony that the
boom truck operator complaint in early September was a labor-management
dispute over the posting of jobs. He determined that Sammons' safety
belt complaints were not safety complaints because Mine Services had not
refused to provide safety belts. 4 FMSHRC at 1729-30. The judge further
determined that Sammons' request for a basket at the September 16 meeting
with Bates was not a safety complaint, but reflected a difference of
opinion as to how connecting work should be done. 4 FMSHRC at 1730-31.
The judge also rej~cted Sammons' alternative argument that Bates
terminated him because he engaged in a protected work refusal during the
September 18 test. The judge stated.that the evidence did not establish
that Sammons was required to work in an unsafe manner or that he refused
to work for reasons of safety. 4 FMSHRC at 1732-33. In short, the
judge credited Bates' testimony as to his reason for referring Sammons
back, over Sammons' contrary testimony. Finding nothing suspect in the
referral back, the judge concluded that it was based solely on Bates'
bona fide belief in Sammons' incompetence as a connector. 4 FMSHRC at
1733-34. Accordingly, the judge dismissed Sannnons' discrimination
complaint.
We note at the outset that the judge's decision fails to mention
and does not apply this Commission's precedent in the area of discrimination law.. This omission has ne~dlessly complicated the task of review.
We have carefully examined the judge's findings and the record and are
satisfied that his decision is consistent with our precedent in principle
a~d in result.
However, for the sake of clarity, we reiterate the basic
analytical guidelines in this field.
In order to establish a prima facie case of discrimination under
section 105(c) of the Mine Act, a complaining miner bears the burden of
production and proof to establish (1) that he engaged in protected

1395

activity and (2) that the adverse action complained of was motivated in
any part by th~t activity. Secretary on behalf of Fasula v. Consolidation
Coal Co. v. Marshall, 2 FMSHRC 2786, 2799-2800 (October 1980), rev'd on
other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211
(3d Cir. 1981); and Secretary on behalf of Robinette v. United Castle
Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The operator may rebut the
prima facie case by showing either that no protected activity occurred
or that the adverse action was in no way motivated by protected activity.
If an operator cannot rebut the prima facie case in this manner it may
nevertheless affirmatively defend by proving that (1) it was also motivated
by the miner's unprotected activities, and (2) it would have taken the
adverse action in any event for the unprotected activities alone. The
operator bears the burden of proof with regard to the affirmative
defense. Haro v. Magma Copper Co., 4 fMSHRC 1935, 1937 (November 1982).
The ultimate burden of persuasion does not shift from the complainant.
Robinette, 3 FMSHRC at 818 n. 20. See also Boich v. FMSHRC, 719 F.2d
194 (6th Cir. 1983); and Donovan v."""StaffOrd Constr. Co., No. 83-1566,
D.C. Cir. (April 20, 1984)(specifically approving the Commission's
Fasula-Robinette test). The Supreme Court has approved the National
Labor Relations Board's virtually identical analysis for discrimination
cases arising under the National Labor Relations Act. NLRB v. Transportation
Management Conp., ~-U.S.~-' 76 L.Ed. 2d 667 (1983).
The judge found that Sammons had not engaged in any protected
activity, either in the form of safety complaints or a work refusal, and
that he was referred back to the District Panel during his probationary
period of employment solely because Bates believed him to be an incompetent connector. T~us, in effect, the judge concluded that Sammons
had failed to prove either element of the prima facie case. Sammons has
challenged both of these findings.
Sammons contends that the judge erred in holding that his complaint
in early September regarding the posting of the boom truck operators'
jobs, his complaints that Mine Services had provided him with an illfitting safety belt, and his generalized complaint at the September 16
meeting with Bates that the connectors needed a basket from which to
make the connections on the refuse bin were not protected. We agree
that the judge erred in certain aspects of his analysis of these complaints. In part, the judge concluded that Sammons' boom truck and
safety belt complaints were not protected because there was no showing
that there was, in fact, a safety problem and because Mine Services
adequately addressed whatever problem was in issue. That there may
have been no objective underlying safety problem does not invalidate a
miner's good faith reasonable complaint. Robinette, supra, 4 FMSHRC at
811-12. Similarly, the fact that an o'Perator addressed a safety problem
does not remove the Act's protection from a preceding complaint. The
judge also appears 'to have given weight to the fact that Sammons had
filed no grievances or written complaints with governmental agencies.

1396

The filing of such formal complaints is not a prerequisite to making a
protected safety complaint to an operator. Nevertheless, because of our
ultimate conclusion that these complaints were not related to Sammons'
dismissal, we do not believe it is necessary to determine which of them
were protected, but assume, for purposes of this decision, that they
all were.
As to the other protected activity alleged by Sannnons, we affirm
the judge's conclusion that Sammons did not engage in a protected work
refusal. In our Pasula and Robinette decisions, we held that under the
Mine Act a miner may refuse to engage in work where he has a reasonable,
good faith belief in a hazardous condition, and we have applied this
doctrine in various factual contexts to extend the Act's protection to
miners' work refusals. See, for example, Secretary of Labor (MSHA) v.
Metric Constructors, Inc., 6 FMSHRC 226 (February 1984). Our cases
contemplate, however, that the miner has engaged in some form of conduct
or connnunication manifesting an actual refusal to work. As noted above,
Sammons did not raise a work refusal theory in this case until after the
hearing, and even then his counsel candidly conceded the difficulty of
applying that theory to the facts:
Our position is that this is a retaliation [for
safety complaints]·case rather than a work refusal
case. This is not a work refusal case simply
because Sammons never declined an assignment
and thereby disrupted production; he performed
every task given to him. On the other hand, because
at least from management 1·s perspective production
was adversely affected, it may be possible to
analyze certain incidents as a form of protected
work refusal, such as the so-called "refusal to
climb" • . • on the refuse bin ••••
Post-hearing brief for the complainant 9-10.
Only Sammons' attempt during the September 18 test to use the
basket for the upper connection on the diagonal brace could be
characterized as a possible work refusal. However, Sannnons was performing
his assigned task at the time and never suggested that he was refusing
to carry out that task. Bates merely believed that Sammons should have
climbed the steel to remove a loose choker and to move to the upper end
of the brace preparatory to making the connection.
Even were we to treat Sammons' conduct during the erection of the
brace as an implied refusal to perform the work in the manner contemplated by management, we could not conclude that it amounted to
protected activity under the Mine Act given the lack of any expression
of a safety concern by Sammons at the time. We have held that a miner
refusing to work on the basis of a good faith, reasonable belief in a
hazard "should ordinarily connnunicate, or at least attempt to communicate,

1397

to some representative of the operator his belief in the ••• hazard at
issue." Secretary on behalf of Dunmire and Estle v. Northern Coal Co.,
4 FMSHRC 126, 133 (February 1982). See also Miller v. FMSHRC, 687 F.2d
194, 195-96 (7th Cir. 1982)(approving generally the Dunmire and Estle
rule requiring communication of a safety concern in connection with a
work refusal). On September 18, Sammons neither expressed a safety
concern, complained about the conditions for making the connection, nor
told Bates after the fact why he had not climbed the diagonal. His
failure to communicate any safety concern to Bates leads us to agree
with the judge that Sammons' attempt to use a basket instead of climbing
the diagonal on September 18 merely reflected a difference of opinion-not pertaining to safety considerations--over the proper way to perform
the task at hand. Accordingly, we cannot conclude that Sammons engaged
in a protected work refusal during the September 18 test.
Because we have assumed arguendo that Sannnons made protected safety
complaints, we must decide whether he established the necessary causal
connection between the complaints and Mine Services' referral back of
Sammons to the panel. We conclude that substantial ev~dence supports
the judge's conclusion that Bates discharged Sannnons solely for his
perceived incompetence.
Bates' belief in Sammons' incompetence as a connector was based on
reasons that the judge found credible and convincing. Bates was
seriously concerned over the slow erection of the refuse bin and was
determined to improve the situation. There is no evidence in this
record to contradict Mine Services' view that progress was unacceptably
slow. As the construct~on supervisor, Bates was authorized and qualified
to evaluate his employees. After observing and testing all the connectors,
he concluded that Sammons and Canada did not perform competently.
Specifically, Bates believed that they were not comfortable on the
steel, were afraid to climb, and did not handle their tools to best
advantage.
The judge relied, in part, on Bates' testimony concerning his
evaluation of Sammons' competence and his right under the Construction
Agreement to ref er back an unsatisfactory employee during the 30-day
probationary period. 4 FMSHRC at 1719-20, 1733-34. The judge credited
the testimony of Bates over that of Sammons. On review, Sammons has not
persuaded us that anything in the record would justify our taking the
extraordinary step of overturning this credibility resolution. 11

11

In cases involving an alleged discriminatory discharge, the task of
the Commission and its judges is to determine, based on the record,
whether the motivation for a discharge was discriminatory, not whether
it was fair o+ based on a correct interpretation of events leading up to
the discharge. In fact, after Sammons and Canada were ordered down on
September 18, the connection had to be made by use of a basket. We do
not by this decision conclude that Sammons was incompetent, merely that
Bates' belief that he was not competent motivated the referral back to
the panel.

1898

Finally, even if a reasonable inference could be drawn that the
referral back were motivated in any part by protected activity, our
conclusion would be no different •. The judge analyzed certain aspects of
the evidence from the standpoint of a "mixed motive" case (see Haro v.
Magma Copper Company, supra), and rejected Sanunons' contention that,
absent his alleged protected activity, he would not have been referred
back. The judge found, in effect, that Mine Services' evidence was so
strong that it had affirmatively def ended by proving that Sammons would
have been referred back because he was perceived to be an incompetent
connector. E_/
For the foregoing reasons, we affirm the judge's dismissal of
Sammons' discrimination complaint.

6clrlyeqt;:n

6/
We agree with the judge's rejection
Sammons' argument that Mine
Services' reassignment of Gravlee and reinstatement of Canada (n. 4
supra) reflected discriminatory treatment of Sammons. 4 FMSHRC at 173132. Gravlee was allowed to bid on another, lower-paying job because he
admitted that he could not perform as a connector and was slowing down
the work on the refuse bin. This evidence does not add to Sammons'
case. Mine Services' personnel director testified that during the
course of processing the Sammons and Canada grievances, management
determined that Canada was more qualified on paper than Sammons and had
a stronger case for reinstatement. Mine Services therefore agreed to
settle Canada's case by reinstating him. Sammons has not demonstrated
in this proceeding that the reinstatement of Canada is proof of discriminatory treatment within the protection of the Mine Act.

1399

Distribution
Peyton Lacy, Jr., Esq., for Mine Services Co.
Lange, Simpson, Robinson & Somerville
1700 First Alabama Bank Building
Birmingham, Alabama 35203
George C. Longshore, Esq., for Roger Sammons
2000 First Avenue North
708 Brown-Marx Building
Birmingham, Alabama 35203
Administrative Law Judge George Koutras
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

1400

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

June 14, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JAMES M. CLARKE
Docket No. LAKE 83-97-D

v.
T. P. MINING, INC.
ORDER

Administrative Law Judge Joseph B. Kennedy's letter of May 31, 1984,
"responding" to the Secretary of Labor's petition for discretionary review
in this matter is an improper circumvention of the Commission's Rules of
Procedure. Accord, Belcher Mine, Inc., Docket No. SE 84-4-M (Order, June 1,
1984). Therefore, it will not be placed in the official record in this
case nor will it be considered by the Commission in ruling on the issues
presented by the Secretary's petition for discretionary review.
Unlike the action we took in Belcher, however, we do not at this
time return the letter to the judge. Rather, because the letter, on its
face, indicates that the judge engaged in a prohibited ex parte telephone
conversation with counsel for the operator, 1/ we will retain the letter
in a separate file pending appropriate inquiry pursuant to Commission
Rule 82. ~also Inverness Mining Co., 5 FMSHRC 1384, 1388 n. 3
(August 1983); Knox County Stone Co., 3 FMSHRC 2478 (November 1981).

ll

At page 3 of his letter the judge states:
It is worth noting that at no time did counsel
for the operator join the Solicitor in asserting
that an "important ingredient" of the money
settlement to Mr. Clarke was "the Secretary's
determination to forsake the civil penalty."
This was because the basis for the settlement
was fully disclosed in a discussion between
counsel for the operator and the trial judge
to which [counsel for the Secretary] was not
a party. [Emphasis added].

14'01 -

Accordingly, the administrative law judge and counsel for the operator
are hereby ordered to submit sworn statements providing full disclosure of
the details and substance of their telephone conversation of March 28, 1984.
It is further ordered that these statements be received by the Commission,
and served on counsel for the Secretary, no later than Friday, June 22, 1984.

J£S~
L. Clair Nelson, Commissioner

1402

Distribution
Michael A. McCord, Esq.
Frederick W. Moncrief, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
John J. Malik, Jr., Esq.
Malik, Knapp, Kiger! & Frizzi
3381 Belmont Street
Bellaire, Ohio 43906
Administrative Law Judge Joseph Kennedy
Federal Mine Safety & Health-Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

1403

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

June 14, 1984

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

Docket Nos. WEST 80-386-RM
WEST 81-58-M
WEST 80-160-M

v.
UNITED STATES STEEL CORPORATION
and
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. LAKE 81-116-M
LAKE 81-77-RM

v.
UNITED STATES STEEL CORPORATION
ORDER
In these cases arising under the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 801 et seq. (1982), United States Steel Corporation
("U.S. Steel") has filed a motion requesting the Commission's recusal
from these proceedings. The motion is based on U.S. Steel's concern
regarding the effect on our decisional process of certain ex parte
communications engaged in by an employee of this independent Commission
with employees of the Department of Labor's Mine Safety and Health ·
Administration ("MSHA") while these cases were pending on review before
us. we· have filed in the formal records of the cases a memorandum and
an affidavit from the participants regarding the communications. These
documents satisfy us that the ex parte communications proceeded from
innocent motives. While we believe the communications would not prevent
us from deciding the cases objectively and fairly solely on the basis of
the records developed before the administrative law judges below, we
seek to insure that not even an appearance of impropriety or unfairness
taints proceedings before this Commission. Accordingly, for the reasons
discussed below, we grant the recusal motion and vacate our directions
for review.

1404

We first briefly sunnnarize the factual background of the cases and
the facts surrounding the ex parte connnunications. The cases involve
citations issued to U.S. Steel by MSHA alleging violations of 30 C.F.R.
§ 55.12-14 at two different U.,S. Steel mines.
This mandatory safety
standard, which guards against shock and electrocution hazards, in
relevant part requires that when power cables energized to potentials in
excess of 150 volts "are moved manually, insulated hooks, tongs, ropes,
or slings shall be used unless suitable protection for persons is
provided by other means." The essential question in dispute between the
parties is whether a ground fault protection system used by U.S. Steel
constituted "suitable protection" within the meaning of the standard.
After U.S. Steel' contested the citations issued by MSHA, the cases
separately proceeded to hearings before two administrative law judges of
this independent Connnission.
Each administrative law judge issued a decision finding that U.S.
Steel's ground fault protection system was not "suitable protection"
within the meaning of the cited standard. Both judges concluded that
U.S. Steel had violated the standard and assessed civil penalties.
4 FMSHRC 954 (May 1982) (Docket Nos. LAKE 81-116-M, et al.)(ALJ); 4 FMSHRC
814 (April 1982)(Docket Nos. WEST 80-386-R, et al.)(ALJ). We granted
U.S. Steel's petitions for discretionary review of the judges' decisions.
After an administrative law judge's decision has been directed for
review by the Commission, the Commission's Office of General Counsel
normally prepares a "decisional memorandum" to assist the Commission in
its deliberations. Decisional memoranda are drafted by attorneys working
under the supervision of the Commission's General Counsel. A decisional
memorandum describes the record evidence, the decision below, the issues
on review, and the parties' contentions concerning the issues. The
memorandum also presents analysis and normally a recommended resolution
of the issues. Thus, the memo,randa play a role in our decisional process,
but are purely advisory and do not purport to, nor do they, control in
any way the resolution of cases before the Commission.
On June 1, 1983, while preparing a decisional memorandum in Docket
No. WEST 80-386-R, et al., an attorney in the General Counsel's office
initiated three telephone calis to two MSHA offices, and engaged in conversations with two MSHA electrical engineering specialists. The specific
contents of these conversations are related in the memorandum and affidavit
that have been filed in the records of these cases. Briefly, the
Commission staff attorney posed questions seeking information of a
general nature pertaining to electrical principles and technology relevant
to ground fault protection systems. The information obtained from the
MSHA engineers was of a general nature and duplicative of information
already contained in the official records in these cases. The staff
attorney states in her memorandum regarding the conversations that she
personally believed that the conversations were general discussions not
pertaining to the merits of the cases under review. No other employee
of the Commission was aware that the conversations had occurred.

1405

The Commission's Office of the General Counsel subsequently circulated to the Commissioners a decisional memorandum in Docket No. WEST
80-386-R, et al., prepared by the staff attorney in question. This case
was scheduled to be considered at a public Conunission meeting on June 15,
1983. On June 13, 1983, counsel for the Secretary of Labor ~ent to the
Commission, and served on the operator, a letter and affidavit concerning two of the telephone conversations. The affidavit was given by
one of the MSHA electrical engineers with whom the staff attorney had
spoken. Counsel for the Secretary stated that the conversations were ex
parte communications prohibited by Connnission Procedural Rule 82, 29
C.F.R. § 2700.82. 1/ Counsel did not seek disqualification or recusal
of the Commission~ but requested that the Connnission make the letter and
affidavit part of the public record. The scheduled meeting was postponed
by the Commission.
On June 15, 1983, the staff attorney involved prepared a memorandum
setting forth her recollection of the details of the conversations.
Copies of this memorandum were served on the parties and placed in the
records of the cases. On July 12, 1983, counsel for U.S. Steel filed a
motion requesting that the Commission recuse itself from decision in
these cases because of the conununications. Counsel for the Secretary of
Labor filed a response stating that the Connnission would be required to
determine whether the communications had tainted irrevocably the Conunission' s decisional process.

1/

Commission Procedural Rule 82 states:
(a) Generally. There shall be no ex parte communication
with respect to the merits of any case not concluded, between the
Commission, including any member, Judge, officer, or agent of the
Connnission who is employed in the decisional process, and any of
the parties or intervenors, representatives, or other interested
persons.
(b) Procedure in case of violation.
(1) In the event an ex parte communication in violation of this
section occurs, the Commission or the Judge may make such orders or
take such action as fairness requires. Upon notice and hearing,
the Commission may take disciplinary action against any person who
knowingly and willfully makes or causes to be made a prohibited ex
parte communication.
(2) All ex parte communications in violation of this section shall
be placed on the public record of the proceeding.
(c) Inquiries. Any inquiries concerning filing requirements,
the status of cases before the Commissioners, or docket information
shall be directed to the Office of the Executive Director of the
Commission.

1406

We have previously addressed the subject of ex parte communications.
Knox County Stone Co., Inc., 3 FMSHRC 2478, 2482-86 (November 1981).
The principles that we enunciated in that decision guide our course in
this matter. In Knox County, in addressing ex parte communications at
the hearing level before our judges, we held that Commission Rule 82 and
section 557(d) of the Administrative Procedure Act, 5 U.S.C. § 557(d)
("the APA"), prohibit ex parte communications between members of the
Commission, its judges, other employees and interested persons outside
the Commission regarding the merits of pending cases, and also require
that any such communications be placed on the public record. 3 FMSHRC
at 2483-85. 2:._/ We stated:
The rules against ex parte communications serve
important goals essential to the integrity and fairness of Commission proceedings. As Congress explained
in enacting section 557(d):
The purpose of the provisions in the bill
prohibiting ex parte communications is to insure that agency decisions required to be made
on a public record are not influenced by private, off-the-record communications from those
personally interested in the outcome.

*

*

*

In order to ensure both fairness and
soundness to adjudication .•• , the •••
[APA] require[s] a hearing and decision on
the record. Such hearings give all parties
an opportunity to participate and to rebut
each other's presentations. Such proceedings cannot be fair or soundly decided,
however, when persons outside the agency
are allowed to communicate with the decisionmaker in private and others are denied the
opportunity to respond.
'!:._/ As we noted, although our procedural rules do not expressly define
ex parte communications, section 551(14) of the APA defines the term as
follows:
"[E]x parte communication" means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall
not include requests for status reports on any matter or
proceeding •••.
As we further stated, Congress intended the phrase, "merits of the proceeding," in section 551(14) and 557(d) to be broadly construed. See
R.R. Rep. No. 880, Parts I & II, 94th Cong., 2d Sess. 20 (Part I),
20 (Part II)(l976), reprinted in 1976 [3] U.S. Code Cong. & Ad. News
2202, 2229 ["1976 U.S. Code Legis. Hist."].

1407

1976 U.S. Code Legis. Hist. 2184, 2227. See also Raz
Inland Navigation Co., Inc. v. ICC, 625 F.2d 258, 260
(9th Cir. 1980). The implications of the purposes
mentioned by Congress are obvious: improper ex parte
contacts may deny a party "his due process right to
a disinterested and impartial tribunal." Rinehart
v. Brewer, 561 F.2d 126, 132 (8th Cir. 1977).
Diminishing public confidence in the affected
tribunal is the likely and unacceptable result.

*

*

*

We recognize that innocent or de minimis
ex parte communications can, and do, occur. When
ex parte communications occur, however, they shall
be placed on the public record in accordance with
appropriate procedure.
In short, ••• we expect that the rules on
ex parte communications will be respected in both
letter and spirit and that judges and lawyers will
avQid even the appearance of impropriety in these
matters.
3 FMSHRC at 2485-86 (footnote omitted).
F.2d 547, 561-65 (D.C. Cir. 1982).

See also PATCO v. FLRA, 685

In the present cases, communications of a Commission staff attorney
with one of the parties in the cases were conducted. The communications
were off the public record without notice to the opposing party. The
conversations involved substantive matters at issue in these cases. The
conversations were prohibited ex parte communications under Commission
Rule 82 and section 557(d) of the APA.

' ex parte communications have been placed on the
As required, the
public record. In the exercise of our discretion, we may make such
orders or take such further action as fairness requires, including disciplinary action against persons who "knowingly and willfully" engage in
such communications. 29 C.F.R. § 2700.82(b)(l). The record indicates
to our satisfaction that the staff attorney engaged in a good faith, but
misguided, attempt to obtain a better general understanding of technical
data as background to these cases. In our view, this attorney did not
"knowingly and willfully" cause the communication to be made within the
meaning of Rule 82. The communication was a first time occurrence for
the attorney involved. Therefore, w~ conclude that disciplinary measures
are not warranted. Nevertheless, we also conclude that the Commission's
recusal from further consideration of these cases is an appropriate
resolution.

1408

The stringent policies we announced in Kn.ox County with reference
to proceedings before our judges apply equally, of course, to ourselves
and Commission staff at the review stage of litigation before this
Commission. Public trust in the integrity and fairness of this independent adjudicatory agency is a vital resource that we are deeply
committed to protect. Therefore, although we are convinced that we
could, in fact, proceed to resolve the cases before us without having
the substance of our staff attorney's conversations affect our independent deliberations, we wish to avoid even the appearance of impropriety
in these proceedings. For this reason, and because by filing a petition
for review in an appropriate court of appeals, the parties may, if they
so desire, obtain further review of the decisions of our administrative
law judges (30 U.S.C. §§ 816(a) and 823(d)), we conclude that vacation
of our orders granting review and reinstatement of the judges' decisions
as the Commission's final orders in these proceedings are appropriate.
For the foregoing reasons, we recuse ourselves from further consideration and decision in these cases. Accordingly, our directions for
review in these dockets are vacated. The administrative law judges'
decisions are reinstated as the final orders of this Commission.

L. Clair Nelson, Commissioner

1409

Distrihution
Louis.e Q.. S~ons, Esq.
United States Steel Corporation
600 Grant Street, Room 1580
Pittsburgh, PA 15230
Anna .L. Wolg~st, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Jon Boltz
Administrative Law Judge Virgil Vail
Federal Mine Safety & Health Review Commission
333 West Colfax Avenue, Suite 400
Denver, Colorado 80204

1410

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

June 15, 1984
RICHARD E. BJES

v.
Docket No. PENN 82-26-D
CONSOLIDATION COAL COMPANY
DECISION
This case arises under section 105(c) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et seq. (1982), and involves the discharge, subsequently converted to a 30-day suspension, of Richard Bjes for
refusing to operate a low profile shuttle car. The Commission's administrative law judge sustained Bjes' discrimination complaint against Consolidation
Coal Company ("Consol"), concluding that Bjes' work refusal constituted
protected activity under the Mine Act. 4 FMSHRC 2043 (November 1982)(ALJ).
The judge ordered that Consol compensate Bjes "for the period of his thirtyday suspension by paying him in full the salary which he would have received
had he not been disciplined." 4 FMSHRC at 2068. The judge did not award
Bjes interest on the back pay, hearing expenses, or attorney's fees. For
the reasons that follow, we affirm the judge's finding that Consol's
discipline of Bjes violated the Mine Act. However, as discussed below, we
remand to_ afford the parties the opportunity to present further evidence
and argument, consistent with our decision, with respect to a complete and
appropriate remedy.
Consol operates the Laurel Mine, an underground coal mine located near
Central City, Pennsylvania. Bjes had worked at this mine for six and a half
years prior to the incidents at issue in this proceeding. For most of the
first six months of 1981, Bjes operated a scoop during retreat mining
operations in the mine. During this period Bjes was classified as a scoop
operator, but also occasionally operated, on a fill-in basis, the high
profile No. 4 high shuttle car. High profile cars were higher and had
more comfortable cabs (or "kitchens") for the operator than low profile
cars. Bjes, who is 6 1 l" tall and weighs 195 lbs., experienced no
difficulty in operating the No. 4 shuttle.
In July 1981, the regular continuous miner operator in Bjes' work crew,
Cecil Wall, was recovering from an injury and his vacancy resulted in each
crew member being "bumped" into a more senior temporary position. When
this realignment occurred, Bjes was permitted upon his request to operate
the high profile No. 4 shuttle car. Bjes earned the same income as a
shuttle operator as he had as a scoop operator.

1411

On Monday, July 27, 1981, Wall, the regular continuous miner operator,
returned to Bjes' crew. When Wall resumed his duties, the other crew members
were bumped back into less senior positions. Bjes was directed to operate
the No. 9 shutt1e car, a standard low profile shuttle. Like all other
shuttle cars used in the mine, the No. 9 shuttle contained two operator's
seats in its cab, one facing the inby end of the car used when driving
the shuttle inby ("the outby seat"), and one facing the outby end of the
car used when driving the shuttle outby ("the inby seat"). In the standard
configuration of the No. 9 shuttle, the outby seat (used when driving
inby) was on the right side of the cab, the cab's single steering wheel
was to the driver's left, and the brake pedal was also to the driver's
left--in line with, and beyond and below, the steering wheel. The
distance from the outby seat to the brake pedal was three feet. (When
seated in the inby seat driving outby, the cab's steering wheel was to
the driver's right and the other brake pedal used when driving outby
was to his left.)
On Tuesday, July 28, during the afternoon shift, Bjes told his section
foreman, Wayne Ross, that he was having trouble with the No. 9 shuttle and
was running it in low gear. Bjes testified that when he sat in the outby
seat, the position of the steering wheel on the left side of the car in
front of the brake made it difficult for him to reach the brake pedal with
his left leg and that his leg was in the way of his reaching the steering
wheel. Bjes also experienced difficulty getting into and out of the shuttle
cab and in changing seat positions. Primarily because of his problems in
reaching the brake and in steering, Bjes believed that it would be safer for
him to operate the No. 9 shuttle at a slow speed in low gear. Later during
that same shift, shift foreman Bill Ross (the brother of Wayne Ross) visited
the section where Bjes was working and was informed by Wayne Ross that Bjes
was operating the shuttle in low gear. Bill Ross flagged Bjes down and asked
him what the problem was. Bjes responded that he could not run the shuttle
in second gear. By moving his feet, ,Bjes attempted to demonstrate to the
section foreman his problem in reaching the brake. Later in the shift, the
No. 9 shuttle was taken out of service for repairs because its hydraulic
hoses had been severed. The cause of the severance is in dispute. Bjes
testified that because he "could not get the wheel turned correctly," he
drove the shuttle car too close to the rib and the hoses were cut when
they caught on the corner of the rib.
On Wednesday, July 29, prior to the afternoon shift, Wayne Ross met
with the acting mine superintendent, Tom Hofrichter, and informed him of
the incidents involving Bjes on the previous day. Shortly thereafter,
Bjes met with Hofrichter in the latter's office. Bjes explained that he
was having difficulty reaching the brake on the No. 9 shuttle and asked
if there were anything Hofrichter could do to alleviate the problem.
John Adams, a safety committeeman of Local Union 1979, District 2, United
Mine Workers of America ("UMWA"), which represented the Laurel Mine miners
for collective bargaining and Mine Act safety and health purposes, was
present at the meeting. Hofrichter also called in Bill Young, the rnine's
master mechanic, to join the meeting. The four discussed possible modifications to the No. 9 shuttle. Hofrichter testified that he told Bjes
that he would look into possible solutions to the situation. Bjes testified that at this meeting Hofrichter authorized him to operate the high
profile No. 4 shuttle car. Hofrichter testified that he did not authorize
such a change.

1412

Later that day, at the beginning of the afternoon shift, section
foreman Wayne Ross noticed that the No. 4 and No. 9 shuttles were not in
operation. Ross asked Bjes and Tim Peterman, the operator of the No. 4
shuttle, what had happened. Bjes responded that he would not operate the
No. 9 shuttle.because his inability to work the brake pedal made his
operation of the shuttle unsafe. Bjes stated that he was invoking his
safety rights under the collective bargaining agreement between the UMWA
and Consol. 1/ For the rest of the shift, Bjes was permitted to operate
the No. 4 high profile shuttle car.
Prior to the afternoon shift on Thursday, July 30, Wayne Ross advised
mine superintendent Hofrichter that Bjes had refused to operate the No. 9
shuttle on the previous day. Hofrichter called a meeting with Bjes. Bill
Ross, Wayne Ross, and Carson Bruening, a union representative, attended.
Hofrichter stated to those present that he had not authorized a switch
in assignments during his July 29 meeting with Bjes, but had said only that
he would look into possibilities for resolving the situation. Bjes again
announced that he would not operate the No. 9 shuttle because it was
unsafe, and that he was invoking his safe·ty rights under the collective
bargaining agreement. Bruening stated that an inspector from the Department of Labor's Mine Safety and Health Administration ("MSHA") would be
contacted in an effort to solve the problem. Bjes was temporarily assigned
laborer's work.
Around 6:00 p.m. that day, Hofrichter, accompanied by safety committeeman Adams and the maintenance foreman, met with Bjes in his working section.
Hofrichter instructed Bjes to sit in the shuttle and demonstrate the problems
he had operating the shuttle. Bjes got into the shuttle car and, sitting
in the outby seat, simulated the operational problems he had when driving
it in the inby direction. Bjes also sat in the inby seat and stated that
he did not have an operational problem driving the car outby, because
when seated in that position the other brake pedal was not under the
steering wheel and he had more leg room. Hofrichter testified that neither
he nor safety committeeman Adams believed that Bjes' operation of the
shuttle presented an "imminent danger" within the meaning of the collective
bargaining agreement (n. 1 supra).
At about this time, MSHA inspector Charles Burke arrived. Another
meeting occurred, involving Bjes, Hofrichter, Burke, Bill Ross, Wayne Ross,
Consol safety supervisor Jeff Kazura, Adams, and another safety committeeman, Rick Borella. Inspector Burke sat in the shuttle and then had Bjes sit
in it to demonstrate the problem he had operating the controls. While neither
Inspector Burke nor safety committeeman Borella thought that Bjes' operation
of the shuttle car constituted an "imminent danger," they both told Hofrichter
that they perceived some hazards in Bjes' operation of the No. 9 shuttle.
1/
Consol and the UMWA were signatories to the National Bituminous Coal
Wage Agreement of 1981 ("the collective bargaining agreement" or "the
agreement"). Complainant's Exh. No. 2. The agreement permitted a miner to
refuse work "under conditions he has reasonable grounds to believe to be
abnormally and immediately dangerous to himself beyond the normal hazards
inherent in the operation which could reasonably be expected to cause
death or serious physical harm before such condition or practice can be
abated." Id., Art. III(i)(l)(p. 15).

1413

Those present then discussed possible shuttle modifications, including
raising the canopy and moving the seats and/or the brake pedal. Hofrichter
decided that because Bjes previously had operated the No. 9 shuttle and
Hofrichter had· not observed "anything that was abnormally hazardous to
him in operating that car," Bjes could continue to operate it "until such
a time that we could look at the possibility of making it more comfortable
for him by making these changes." Tr. 181. Concluding that it was "safe
for ••• Bjes to run that car," Hofrichter instructed Bjes to run the shuttle.
Id. Bjes replied that operating the shuttle would be unsafe and that he
was not going to run it. Adams and Borella asked Hofrichter if he
intended to suspend Bjes with intent to discharge him, and Hofrichter
replied in the affirmative. Borella, acting in his capacity as a safety
committeeman, recommended that Bjes not operate the No. 9 shuttle.
At a subsequent meeting held outside the mine that day, Hofrichter
told Bjes that if he did not operate the shuttle, he would be suspended
with intent to discharge. Bjes refused and the meeting broke up. In a
July 31, 1981 letter to Bjes, Hofrichter stated that Bjes was suspended
with intent to discharge for breach of Consol's Employee Conduct
Rule 4--"Refusal to perform work assigned or to comply with a supervisor's
directive."
Bjes filed a grievance over Consol's action and his case went to
arbitration p~rsuant to the collective bargaining agreement. (The
transcript of testimony presented at the arbitration hearing was not
entered into evidence in the present proceeding.) On August 25, 1981,
the arbitrator issued a written award which directed that the discharge
be converted to a 30-day suspension. In mid-August, shortly before
issuance of the arbitrator's decision, Bjes filed a discrimination
complaint with MSHA, pursuant to section lOS(c) of the Mine Act.
30 u.s.c. § 815(c). Bjes' complaint stated:
I was removed from the mine ••• on July 30, 1981, and
informed that I was being suspended with intent to
discharge effective immediately for refusing to run a
shuttle car, that in the opinions of the mine safety
committee, Federal Inspector Charles Burke and myself
was a hazard to myself and members of my crew. The
problem was caused by my size and the lack of room
in the car •••• I feel that my individual safety
rights were violated and that I was disciplined
illegally under Federal law protecting my right
to a safe working place.
On September 14, 1981, while MSHA's investigation of Bjes' complaint
was proceeding, Bjes returned to work,after his 30-day suspension and was
directed to operate the No. 9 shuttle again. Section foreman Wayne Ross
testified that after two to three hours of work on the shift, Wall, the
continuous miner operator, complained to him that Bjes was not operating
the shuttle safely. (Bjes denied at the hearing that Wall had complained
about the safety of his operation of the shuttle; Wall did not testify at
the hearing.) Ross removed Bjes from the No. 9 shuttle and assigned him

1414

to shoveling coal. Bjes testified that before he was removed from the
shuttle he had injured his left knee by striking it against the shuttle
steering wheel while trying to reach the brake pedal. Bjes testified
that he noticed a swelling in his knee about five minutes after he began
shoveling coal, and that the pain eventually forced him to sit down.
Bjes was subsequently carried out of the mine on a stretcher and taken
to a hospital emergency room. Bjes' workman's compensation form states
that the nature of the injury was "soft tissue injury with possible
ligament damage--left knee." Complainant's Exh. No. C-3. Consol does
not dispute the fact that Bjes sustained an injury of some degree to
his knee, but contests the credibility of Bjes' explanation of the manner
of his injury.
In October 1981, following his injury, Bjes received a letter from MSHA
informing him that MSHA's investigation of his discrimination complaint had
not uncovered a violation of section lOS(c) of the Mine Act. On November 23,
1981, Bjes filed his own discrimination complaint with this independent
Commission pursuant to section 105(c)(3) of the Mine Act. 30 u.s.c.
§ 81S(c)(3). 2/ Bjes underwent an operation for his injury and was
absent from work for five months recuperating. When he returned to work,
Bjes found that his work crew had again undergone another realignment.
This resulted in his attaining higher seniority and being permitted to
operate a different shuttle ~ar.
In his decision, the administrative law judge found that Bjes had a
good faith, reasonable belief that his operation of the low profile No. 9
shuttle car was hazardous to himself and others, and that he had communicated his safety concerns in this respect to management. 4 FMSHRC at
2063-66. The judge "accept[ed] ••• Bjes' testimony that the configuration
of the machine, coupled with its operational limitations, restricted his
movements while seated at the controls, thereby contributing significantly
to his inability to reach the brake pedals." 4 FMSHRC at 2066. The judge
rejected Consol's defense that Bjes' work refusal stemmed not from safety
concerns, but from "his dislike for a machine which he found to be
uncomfortable." 4 FMSHRC at 2067-68. The judge resolved a number of
credibility disputes in Bjes' favor and stated, "Having viewed ••• Bjes
on the stand during the course of the hearing ••• I ~ind him to be a
straightforward and credible witness." 4 FMSHRC at 2064. Pursuant to
his findings, the judge concluded that Bjes' refusal to operate the
No. 9 shuttle was a protected work refusal under the Mine Act and,
accordingly, Consol's discipline of Bjes for the refusal was in
violation of section lOS(c) of the Act. 4 FMSHRC at 2067.

2/ At the subsequent hearing before the Commission's administrative
law judge, Bjes was represented by UMWA representative Carson Bruening,
who is not a lawyer.

1415

In his post-hearing arguments, Bjes' lay representative, Bruening,
requested the following remedies: (1) reimbursement of all wages lost
as a result of Bjes' suspension; (2) deletion from Bjes' personnel file
of all record of discipline for the work refusal; and (3) an order that
Bjes not be required to operate the No. 9 shuttle in the future.
4 FMSHRC at 2068. The judge ordered Consol to compensate Bjes for the
period of his suspension "by paying him in full the salary which he
would have received had he not been disciplined." 4 FMSHRC at 2068.
The judge stated, "The rate of pay should be at the rate of pay Bjes was
earning when he was suspended, and [the parties] are directed to confer
••• 'for the purpose of calculating the amount due ••• Bjes •••• " Id.
The judge also ordered Consol to purge Bjes' personnel file of any~
record of this event, but denied Bjes' request to direct Consol not
to require Bjes to operate the No. 9 shuttle in the future. Id.
The judge did not award interest on the back pay, hearing expenses,
or attorney's fees.
On review Consol contends that, as a general proposition, a miner's
work refusal may not be based upon an alleged hazard attributable to the
miner's own physical condition or limitations. Consol also argues that
substantial evidence does not support the judge's findings and credibility
resolutions that Bjes' work refusal was made in good faith and based on
a reasonable belief that it was hazardous for him to operate the No. 9
shuttle. 3/ The UMWA, which has filed a brief on Bjes' behalf, contests
Consol's arguments and also maintains that the judge erred in not awarding
interest on back pay, hearing costs, or attorney's fees. The issues before
us are whether substantial evidence supports the judge's findings that
Consol violated section 105(c) of the Mine Act by disciplining Bjes for
engaging in a protected work refusal and, if so, whether the judge awarded
remedies consistent with the Mine Act's remedial provisions and goals.
We first address the substantive issues pertaining to the violation.
The crucial question is whether Bjes engaged in a protected work refusal.
At the outset, we are met with Consol's contention that even if Bjes had
a good faith, reasonable belief in a hazard, his work refusal was outside
the protection of the Mine Act because the perceived hazard, if any,
resulted from his own physical idiosyncracies and not from any safety defect
in Consol's equipment or in the physical environment of the mine. The UMWA
objects to our consideration of this issue on the ground that Consol
failed to present this argument to the judge and is therefore barred
by section 113(d) of the Mine Act from raising it for the first time on
review. See 30 U.S.C. § 823(d)(2)(A)(iii}.

On review, Consol does not contest the judge's finding that Bjes
communicated his safety concerns to management.

]_/

141S

Determinations as to whether the judge was "afforded an opportunity
to pass" on questions of law or fact (30 u.s.c. § 113(d)(2)(A)(ii)) must
be decided on a case-by-case basis. We agree with the UMWA that the legal
challenge in question was not expressly developed below by Consol.
Nevertheless, this case poses the question of whether Bjes' work refusal,
which was premised in part on his own physical limitations, enjoyed the
Act's protection. Nearly every work refusal consideration addressed
by the judge touches on or implicates this larger question. Therefore,
we are satisfied that the issue was before the judge, notwithstanding
Consol's failure to articulate this defense more clearly. Further, the
issue, as addressed by Consol on review, is a legal one, and the UMWA
has responded fully to it.
We conclude that, under appropriate circumstances, such as here
presented, a miner may refuse to work on the basis of a perceived hazard
arising from his own physical condition or limitations. In our previous
decisions we have recognized the right to refuse work but have not had
occasion to decide this specific issue. Our determination today is founded
both on the broad protective purpose of section 105(c) and on the underlying mandate of the Mine Act that operators, with the assistance of miners,
strive to create safe working conditions in the mine. Safety in particular
mining contexts may be affected by a miner's physical condition or limitations.
The mine is an interactive environment involving human beings, equipment, and
the mine's physical setting itself. The human factor cannot be ignored in
the evaluation of hazards. A significant physical limitation or condition may
affect a miner's ability to perform his normal work tasks and create a hazard
justifying a refusal to work.
In this case, the judge determined that the Bjes' physical attributes (6' l" tall, 195 pounds in weight) in association with the "cramped
shuttle car kitchen" (4 FMSHRC at 2064) and the configuration of the
controls prevented Bjes from safely applying the shuttle's brake when
driving inby. The record supports the judge's finding that a ha?ard was
created by Bjes' operation of the shuttle. We note that the hazard in
this case was not solely attributable to Bjes' body build, but arose also
from t.he configuration of the equipment that he was required to operate.
The hazardous situation resulting from this interaction of human and
technical factors was not the result of any questionable conduct on Bjes'
part. We conclude that, in the circumstances of this case, Bjes' work
refusal did not lose its claim to protection under the Act merely because
the hazard resulted in part from factors intrinsic to Bjes himself.

1417

A miner's work refusal is protected under section 105(c) of the Mine
Act if the miner has a good faith, reasonable belief in a hazardous condition.
See Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803,
807-12 (April 1981). Good faith in this context simply means an honest belief
that the hazard exists. Accompanying the good faith requirement is the
additional requirement that the belief in a hazard be a reasonable one under
the circumstances.
The judge found that Bjes had "an honest belief" that a hazard existed.
The judge's finding is premised on his credibility resolution, noted above,
that Bjes was a "straightforward and credible witness." 4 FMSHRC at 2064.
The judge stated that Bjes was "sincere when he initially complained about
the cramped shuttle car kitchen and the fact that he had problems reaching
some of the controls." Id. When reviewing a judge's credibility resolutions our role is necessarily limited. We have carefully reviewed Consol's
"bad faith" allegations, and conclude that Consol has not offered evidence
so compelling that we should take the exceptional step of overturning
findings resting on credibility resolutions.
In evaluating the judge's findings concerning good faith, we are
mindful of the testimony of mine superintendent Hofrichter that during
the July 30 meeting in the mine, when Bjes demonstrated his problems
with the shuttle and also announced his work refusal, both Inspector
Burke and safety committeeman Borella stated that they perceived hazards
in Bjes' operation of the shuttle. Indeed, Hofrichter's own willingness
at the time to consider modifications to the No. 9 shuttle bespeaks some
recognition of an operational problem.
The evidence on which Consol relies to demonstrate bad faith is not
persuasive. Consol argues that other miners, as large or nearly as large
as Bjes, had operated the No. 9 shutrle without complaint. As the judge
noted, these other miners did not testify. Therefore, like the judge, we
cannot attribute weight to Consol's bare allegation concerning others'
experiences or beliefs. Further, other miners' experience with the
shuttle may not have been identical to Bjes' and their failure to
vocalize a complaint to management, without further explanation, does
not prove that Bjes acted in bad faith.
Consol also notes that at the hearing Bjes offered to drive another
low profile shuttle car, the No. 10 shuttle. Consol argues that there
were no significant differences between the two low profile cars, and that
this consideration demonstrates the insincerity of Bjes' refusal to drive
the No. 9 shuttle. The judge analyzed this contention and concluded that
there were operational differences between the two cars. 4 FMSHRC at 2067.
There is substantial record support for this finding. Unlike the standard
No. 9 car, the No. 10 shuttle was off-standard in design. When driven inby,
the No. 10 car's steering wheel and brake were on opposite sides of the cab.
While the record lacks some detail on this point, both Borella and Bjes

1418

testified that Bjes could have operated the No. 10 car safely. Therefore,
we find no reason to disturb the judge's finding that Bjes acted in good
faith.
With regard to the reasonableness of Bjes' belief in the hazard, the
evidentiary considerations discussed above also establish the required
reasonableness. The judge found, and we agree, that the evidence showed
that there was a hazard presented by Bjes' operation of the shuttle. While
there is no requirement under our precedent that a miner's belief be
objectively verified, when such verification is demonstrated it constitutes
additional persuasive evidence. See Robinette, 3 FMSHRC at 811-12. We again
note that two participants in the July 30 meeting in the mine believed that
hazards were associated with Bjes' operation of the shuttle. The judge also
credited Bjes' testimony that upon his return to work in September 1981, he
seriously injured his left knee when he struck it against the shuttle's
steering wheel while experiencing difficulty in reaching the brake. The
judge found that this accident "bolster[ed] [Bjes'] argument that requiring
him to operate the shuttle car while he was cramped into the operator's
kitchen ••• presented a real safety hazard." 4 FMSHRC at 2066. Consol
attacks the judge's credibility resolution, but has presented no controverting evidence that would warrant our reversal on this point. Cf. Robinette,
3 FMSHRC at 813-14. !!:_/
We thus affirm the judge's findings that Bjes had a good faith, reasonable belief in the existence of a hazard and that his refusal to work, based
on that belief, was protected by the Mine Act. There is no dispute that
Consol disciplined Bjes solely for engaging in the work refusal. Because
the refusal was protected, the discipline was done in violation of section
105(c) of the Mine Act. See, for example, Secretary of Labor, Mine Safety
and Health Administration (MSHA) v. Metric Constructors, Inc., 6 FMSHRC 226,
230-31 (February 1984). To the extent that Consol has argued that the
discipline was legitimate because Bjes' concern rested on his comfort rather
than safety, that contention is rejected.
We turn to the question of remedy. Section 105(c)(3) of the Mine
Act expressly requires that if the Commission sustains the discrimination
complaint of a miner proceeding on his own behalf, the Commission:
shall issue an order ••• granting such relief as it
deems appropriate, including, but not limited to, an
order requiring the rehiring or reinstatement of the
miner to his former position with back pay and interest
or such remedy as may be appropriate •••• Whenever an
order is issued sustaining the complainant's charges
under [section 105(c)(3)] a sum equal to the aggregate
amount of all costs and expenses (including attorney's
4/
Consol also contends that on July 28 Bjes did not accidentally sever
the shuttle's hydraulic hoses as a result of a steering problem, but
rather severed them as a result of running over a large rock. The judge
did not resolve the conflict in testimony on this point. Regardless of
the reason for this accident, it would not affect our conclusions in this
case.

1419

fees) as determined by the Commission to have been
reasonably incurred by the miner ••• for, or in
connection with, the institution and prosecution of
such proceedings shall be assessed against the person
committing such violation ••••
30 U.S.C. § 815(c)(3). As our cases have emphasized, our statutory mandate
requires us to restore victims of discrimination to the status they would
have occupied but for the discrimination. However, we may not unjustly
enrich a discriminatee. See Secretary of Labor on behalf of Cooley v.
Ottawa Silica Company, 6 FMSHRC 516, 523-25 (March 1984); Secretary of
Labor v. Metric Constructors, Inc., 6 FMSHRC 226, 231-34 (February 1984);
Secretary of Labor o~ behalf of Bailey v. Arkansas-Carbona Company,
5 FMSHRC 2042, 2049-56 (December 1983); Secretary on behalf of Dunmire
and Estle v. Northern Coal Company, 4 FMSHRC 126, 142-44 (February 1982).
These principles dictate remand.
In holding that Bjes was entitled to back pay during the period of his
30-day suspension, the judge did not specify what job classification or pay
rate applied for calculation of the award. Any remedial relief due to Bjes
must be determined, however, on the basis of whatever non-discriminatory
status he would have occupied, during the 30-day period of time following
his work refusal, had he not been disciplined. See Secretary on behalf of
Cooley v. Ottawa Silica Co., 5 FMSHRC at 522-23. The record in this case
suggests that Consol, in accord with the collective bargaining agreement,
its past practice in analogous situations, and its normal business policies,
had available and might have adopted any of a variety of options, e.g.,
assigning Bjes to operate a different shuttle car; reassigning him to scoop
work; or assigning him totally different work. Other legitimate options may
have been available, as indicated by Hofrichter's initial willingness to
consider modifications to the shuttle. 5/ We remand so that the parties
may stipulate or offer additional evidence and argument, and so that the judge
may make appropriate findings, as to what Bjes' status would have been
following his refusal to work had he not been discriminatorily disciplined.
As noted, the judge did not award Bjes interest on his back pay award,
hearing expenses, or attorney's fees. Unless compelling reasons point to
the contrary, all should be recovered by a discriminatee. The failure of
Bjes' lay representative to request such relief cannot serve as a bar to
its recovery. See for example, Secretary on behalf of Dunmire and Estle v.
Northern Coal Co., 4 FMSHRC at 144. Accordingly, on remand, the judge shall
award interest on any back pay award pursuant to the principles enunciated
in our decision in Secretary on behalf of Bailey v. Arkansas-Carbona Co.,
supra. See Secretary on behalf of Cooley v. Ottawa Silica Co., 6 FMSHRC
at 523. The judge shall also permit the parties to offer stipulation,
evidence, and/or argument as to the amount, if any, of the hearing
expenses, including expenses in the nature of attorney's fees, incurred
by Bjes. See Secretary of Labor~. Metric Constructors, Inc., 6 FMSHRC
at 233-34.

ii

Because of this initial willingness to consider modification, and
because there may have been a number. of alternatives available to this
operator, we need not and do not decide whether the operator would be
required under the Mine Act to modify the equipment, which was otherwise
in full compliance with applicable regulations, as a matter of last resort.

1420

Accordingly, for the foregoing reasons, we affirm the judge's conclusion that Consol violated the Mine Act. We remand the case to the
judge for expeditious proceedings to determine appropriate relief due
Bjes in accordance with the principles enunciated in this decision.

~ iliyer~::an

Commissioner

1421

Distribution
Mary Lu Jordan, Esq.

UMWA
900 15th St., N.W.
Washington, D.C. 20005
Jerry F. Palmer, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241
Administrative Law Judge George Koutras
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

1422

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

June 26, 1984
UNITED STATES STEEL CORPORATION
Docket Nos. LAKE 81-102-RM
LAKE 81-103-RM
v.
LAKE 81-114-RM
LAKE 81-115-RM
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION. (MSHA)
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. LAKE 81-152-M
LAKE 81-167-M
LAKE 81-168-M

v.
UNITED STATES STEEL CORPORATION

DECISION
This consolidated proceeding arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 ~~· (1982), presents three major
issues: whether United States Steel Corporation ("U.S. Steel") violated
section 103(a) of the Mine Act, 30 U.S.C. § 813(a), by restricting
access by the Department of Labor's Mine Safety and Health Administration
("MSHA") to the scene of a truck rollover; whether U.S. Steel violated the
same section of the Act by insisting on the presence of a corporate attorney
during an investigative interview of one of its foremen; and whether it unwarrantably violated 30 C.F.R. §§ 55.9-1 and 55.9-2 by failing to·record a
defect affecting safety in the truck involved in the accident and by continuing to operate the' truck after its foreman was aware that the truck had
a defective rear end. The Commission's administrative law judge determined
that U.S. Steel violated section 103(a) of the Act and the mandatory safety
standard as alleged, and imposed civil penalties. 4 FMSHRC 616 (April
1982)(ALJ). For the reasons that follow, we affirm in part and reverse
in part.

I.
U.S. Steel operates an open pit taconite mining operation in
Iron Mountain, Minnesota, known as the Minntac Mine. During the day
shift on January 21, 1981, Martin Kaivola, a field millwright, noticed
that the dual rear wheels of the 2~-ton pickup truck he was driving had
shifted in the wheel well. He informed his foreman, Cedric Roivanen, of
the vehicle's condition. Roivanen acknowledged the report, but due to
the press of other business he failed to record the defect and have it
repaired. The truck was subsequently used on at least the next shift,
where it was observed to be "doglegging," or steering from the rear.

1423

On the morning of the next day, January 22, 1981, Kaivola visually
inspected the truck on the ready line. Believing that the truck had been
repaired, he proceeded to use it in the course of his work on a shovel
repair crew. The crew used the truck on two jobs that morning. On their
way back to the central shop, they drove over a rail crossing and proceeded
along a straightaway. Kaivola happened to glance at the rear view mirror
and noticed that the rear tires were smoking in the wheel wells. Within
seconds the rear end started to steer itself around the cab. Kaivola let
up on the gas pedal, the truck's drive shaft dropped loose, and the truck
overturned.
Shortly thereafter, James Barmore, a U.S. Steel safety engineer,
Larry Claude, a miners' representative, and James Bagley, an MSHA inspector,
arrived at the mine office to take a lunch break from a regular mine
inspection which MSHA was then conducting. Barmore, in the company of
the other two men, was informed that a truck carrying three employees had
rolled over in the pit. Barmore prepared to investigate the accident
and requested that Claude accompany him. As Barmore and Claude proceeded
toward the door with the inspector close behind, Barmore turned and asked
the inspector where he thought he was going. Inspector Bagley said that
he intended to go into the pit and examine the scene of the rollover. At
this point, Barmore and Bagley entered into a verbal exchange as to
whether the inspector would accompany Barmore and Claude.
Bagley and Claude testified that Barmore used profanity when
addressing the inspector. Barmore denied this allegation. Bagley
asserted that he had a right to go into the pit to observe the site.
Barmore and Claude testified that Barmore said that Bagley could not
go along with them. Barmore testified that he did not want the arrival
of an inspector on the scene to be misinterpreted as the initiation of
an MSHA accident investigation. Barmore and Claude proceeded to the
scene of the rollover together, hav~ng stated to Bagley that on their
return they would show him photographs of the site and fill him in on
the details.
At the time, Bagley did not have a government vehicle at his disposal.
He had arrived at the mine site that morning with MSHA Inspector Thomas Wasley,
who used their vehicle for his separate purposes. It was customary practice
for U.S. Steel to provide transportation to MSHA personnel in the form of a
company car driven by a company safety engineer. MSHA personnel relied on
this practice. Signs at the mine indicated that only authorized vehicles
were allowed in the pit.
By the time that Barmore and Claude reached the scene of the truck
rollover, other U.S. Steel personnel had already arrived, had taken the
shovel repair crew to the clinic for treatment, and were in the process
of evaluating the rollover. Kaivola, the driver, and one of the passengers,
Richard Boucher, a millwright apprentice, sustained back strain injuries.
Another passenger, Richard Woullet, also a millwright apprentice, received
a chipped elbow fracture. The truck had landed right side up on its wheels.
The box of the truck had been torn off and was lying upside down. The drive
shaft had separated and was lying on the ground. The rear axle had shifted,
the spring package had broken, and spring leaves were scattered about the

1424

scene. Barmore took photographs of the wreckage and the surrounding area
and returned-with Claude to the mine office after some 20-45 minutes. They
discussed the rollover with Bagley and showed him the photographs taken at
the scene. Bagley was told that the employees involved in the rollover had
received restricted duty injuries.
The next day, after consulting with his supervisor, Bagley returned to
the mine and issued a citation to U.S. Steel under section 104(a) of the Mine
Act, 30 u.s.c. § 814(a). The citation alleged that U.S. Steel violated
section 103(a) of the Act because Barmore had denied Bagley "the opportunity
to evaluate the cause of the accident or to determine if any mandatory safety
or health standard had been violated." 1/ MSHA did not proceed with its

]J

Section 103(a) of the Act provides:
Authorized representatives of· the Secretary or the Secretary
of Health, Education, and Welfare shall make frequent inspections and investigations in coal or other mines each year for
the purpose of (1) obtaining, utilizing, and disseminating
information relating to health and safety conditions, the
causes of accidents, and the causes of diseases and physical
impairments originating in such mines, (2) gathering information with respect to mandatory health or safety standards,
(3) determining whether an imminent danger exists, and (4)
determining whether there is compliance with the mandatory
health or safety standards or with any citation, order, or
decision issued under this title or other requirements of
this Act. In carrying out the requirements of this subsection,
no advance notice of an inspection shall be provided to any
person, except that in carrying out the requirements of
clauses (1) and (2) of this subsection, the Secretary of
Health, Education, and Welfare may give advance notice of
inspections. In carrying out the requirements of clauses
(3) and (4) of this subsection, the Secretary shall make
inspections of each underground coal or other mine in its
entirety at least four times a year, and of each surface
coal or other mine in its entirety at least two times a
year. The Secretary shall develop guidelines for additional inspections of mines based on criteria including,
but not limited to, the hazards found in mines subject to
this Act, and his experience under this Act and other
health and safety laws. For the purpose of making any
inspection or investigation under this Act, the Secretary,
or the Secretary of Health, Education, and Welfare, with
respect to fulfilling his responsibilities under this Act,
or any authorized representative of the Secretary or the
Secretary of Health, Education, and Welfare, shall have a
right of entry to, upon,' or through any coal or other mine.

30 u.s.c. § 813(a).

1425

own independent investigation of the rollover. However, on February 5,
1981, MSHA received a miner's request, pursuant to section 103(g) of the
Act, 30 U.S.C. § 813(g), that the rollover accident be investigated.
In response to the section 103(g) request, Inspectors Bagley and James
King returned to the mine on February 9, 1981. They gave a copy of the
section 103(g) request to Steve Starkovich, safety supervisor for U.S.
Steel's Minnesota ore operations. Starkovich provided the inspectors with
a copy of the company's accident report. The inspectors informed Starkovich
that they wanted to look at the truck, speak with members of the shovel
repair crew, and speak with the crew foreman. Starkovich said that there
would be no difficulty in viewing the truck and in interviewing the hourly
employees, but that he could not let them interview Roivanen, the foreman,
unless a U.S. Steel attorney were present. Bagley informed him that it
would be necessary to interview Roivanen, and that arrangements should be
made to provide an attorney as soon as possible.
The inspectors examined the truck. When Kaivola, the driver, could
not be located, Bagley asked Ron Rantala, a U.S. Steel safety engineer,
if they could interview Roivanen. Rantala also advised them that they
could not interview the foreman unless a U.S. Steel attorney were present.
Kaivola was subsequently located and interviewed.
On February 11, 1981, Inspectors Bagley and Wasley returned to the
mine and again informed Starkovich that they wanted to interview Roivanen.
Starkovich said that they could not interview him unless a U.S. Steel
attorney were present and that he had not yet received word from U.S.
Steel headquarters as to when an attorney would be available.
The inspectors told Starkovich that they wished to interview Boucher
and Woullet, the passengers in the truck. Starkovich testified that he
informed them that Boucher and Woullet were in training at a vocational
technical school and that they would return on February 17, 1981. Starkovich
stated that he discussed with the inspectors the possibility of interviewing
the two miners on their return to work and the possibility that a U.S. Steel
attorney could be present that same day to allow MSHA to interview Roivanen.
Bagley and Wasley testified that Starkovich made no mention of when Boucher
and Woullet would return to work, nor when a U.S. Steel attorney would be
available. Starkovich advised the inspectors that Roivanen would not talk
to them about the accident.
Bagley returned to the mine the next day, February 12, 1981, and
issued a section 104(a) citation to U.S. Steel alleging another violation
of section 103(a) of the Mine Act. The citation alleged that Starkovich's
refusal on February 9 and February 11 to allow the MSHA inspectors the
opportunity to confer with Roivanen "constitutes interference with and impedance of ••• an MSHA accident inv\8tigation." Upon receiving the citation,
Starkovich telephoned company headquarters and informed the inspectors that
a U.S. Steel attorney would be present the following day. Based upon this
information, Bagley set the termination date on the citation for the next
day. The inspectors then went to the vocational technical school and
interviewed Boucher and Woullet.

1426

On February 13, 1981, Ronald Fischer, a U.S. Steel attorney who
primarily handled worker's compensation matters, came to the mine and
was present ·while the inspectors interviewed Roivanen. Roivanen informed
them that he had been advised by his supervisor that the company preferred
that he have the benefit of counsel concerning the truck rollover. Roivanen
told the inspectors that the shifting condition of the rear wheels had
been reported to him and that he failed to record the problem and failed
to effect any repairs because he forgot.
On March 9, 1981, as a result of MSHA's truck rollover accident
investigation, Bagley issued two orders of withdrawal to U.S. Steel under
section 104(d)(l) of the Mine Act, 30 u.s.c. § 814(d)(l). 2/ The orders
alleged violations of 30 C.F.R. §§ 55.9-1 and 55.9-2, mandatory safety
standards concerning the reporting and recording of safety defects in
equipment and the correction of safety defects before the equipment is
used. ]./ Additionally, the orders charged that the violations were both

];;/

Section 104(d)(l) of the Act provides:

30 u.s.c.

]j

If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has
been a violation of any mandatory health or safety standard,
and if he also finds that, while the conditions created by
such violation does not cause imminent danger, such violation
is of such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine
safety or health hazard, and if he finds such violation to be
caused by an unwarrantable failure of such operator to comply
with such mandatory health or safety standards, he shall include
such finding in any citation given to the operator under this
Act. If, during the same inspection or any subsequent inspection
of such mine within 90 days after the issuance of such citation,
an authorized representative of the Secretary finds another
violation of any mandatory health or safety standard and finds
such violation to be also caused by an unwarrantable failure
of such operator to so comply, he shall forthwith issue an order
requiring the operator to cause all persons in the area affected
by such violation, except those persons referred to in
subsection (c) to be withdrawn from, and to be prohibited from
entering, such area until an authorized representative of the
Secretary determines that such violation has been abated.
§ 814(d)(l).

30 C.F.R. § 55.9-1 provides:
Mandatory. Self-propelled equipment that is to be used during
a shift shall be inspected by the equipment operator before
(Footnote continued)

1427

"significant and substantial" and caused by the operator's "unwarrantable
failure" to comply with the cited mandatory safety standards. In the
withdrawal order alleging a violation of 30 C.F.R. § 55.9-1, the inspector
found:
[Roivanen] confirmed that the shifting rear end had in fact
been reported to him on January 21, 1981, but that he had
forgotten about it. The company could produce no records
of the unsafe condition being reported, hence, did not
demonstrate reasonable care in recording or maintaining
a record of an equipment defect which was reported and
which affected the safety of three employees.
In the withdrawal order alleging a violation of 30 C.F.R. § 55.9-2, the
inspector found:
The truck was not removed from service to correct the
reported defect, but continued to be used for the
remainder of the shift on which it was reported. The
truck was also used on the following afternoon shift
and again during the shift on which the accident
occurred. The failure of the operator to act on
information that gave him knowledge, or reason to
know, that an unsafe condition existed, which
affected the safety of three employees, is
unwarrantable.
The Commission administrative law judge to whom these cases were
originally assigned conducted two days of hearings. Post-hearing briefs
were submitted by the parties. However, prior to issuing a decision, the
presiding judge left the Commission. The cases were reassigned to a
substitute Commission administrative law judge. After notice to the parties
of the substitution and of his intention to decide the case, the judge
issued an extensive 62-page decision based upon the existing record. !!_/
Fn. ]./ continued
being placed in operation. Equipment defects affecting
safety shall be reported to, and recorded by the mine
operator. The records shall be maintained at the mine
or nearest mine office for at least 6 months from the
date the defects are recorded. Such records shall be
made available for inspection by the Secretary of Labor
or his duly authorized representative.
30 C.F.R. § 55.9-2 provides:
Mandatory. Equipment defects affecting safety shall be
corrected before the equipment is used.
4/
Prior to the issuance of the substitute judge's decision, the section
104(d)(l) withdrawal order alleging a violation of section 55.9-1 was modified by the Secretary to a section 104(d)(l) citation, and the other withdrawal order was modified to reflect that it was based on that citation.

1428

In his decision, the judge held that U.S. Steel violated section 103(a)
of the Mine Act when Barmore prevented Bagley from going to the scene of the
rollover. 4 FMSHRC at 626-37. He also held that U.S. Steel violated section
103(a) of the Act when Starkovich prevented Bagley from interviewing Roivanen
until a U.S. Steel attorney could be present. 4 FMSHRC at 643-59. With
regard to the remaining contests, the judge held that U.S. Steel violated
30 C.F.R. § 55.9-1 when Roivanen failed to record the equipment defect
reported to him by Kaivola, and that it violated 30 C.F.R. § 55.9-2 when
the equipment defect in the truck was not corrected before the equipment
was used. 4 F11SHRC at 663-72. The judge also held that these violations
were unwarrantable.
II.

As a preliminary matter, U.S. Steel argues for the first time on review
that the substitute judge erred in resolving conflicts in the testimony of
Barmore, Bagley, and Claude concerning what Barmore told Bagley on the day
he refused to allow him access to the scene of the truck rollover. U.S.
Steel asserts that the judge should not have resolved this testimonial
conflict because he did not preside at the hearing and, thus, did not have
the opportunity to observe the witnesses' demeanor. The Secretary of Labor
contends that U.S. Steel is precluded from raising this objection to the
substitute judge's decision because it failed to raise it before the judge.
Under the Administrative Procedure Act ("APA"), agencies are authorized
to have a case decided by a substitute judge when, as in this case, the presiding judge becomes unavailable to the agency. 5 u.s~c. § _554(d). Cf. Fed.
R. Civ. P. 63. If the case is one in which the resolution of material conflicting testimony requires a determination of the credibility of witnesses,
a de novo hearing may be procedurally necessary, unless the parties consent
to"<fispense with, or waive, a rehearing. See,~., New England Coalition
on Nuclear Pollution v. NRC, 582 F.2d 87, 99-100 (1st Cir. 1978); GambleSkogmo, Inc. v. FTC, 211~2d 106, 113-15 (8th Cir. 1954); Van Teslaar v.
Bender, 365 F. Supp. 1007, 1012 (D. Md. 1973). However, under the APA, a
party must object to a substitute judge's proceeding at a time appropriate
under that agency's practice. Braswell Motor Freight Lines, Inc. v.
United State·s, 271 F. Supp. 906, 910-11 (W.D. Tx. 1967). Further, the Mine
Act and the Commission's Rules of Procedure provide:
••• Except for good cause shown, no assignment of error
by any party shall rely on any question of fact or law
upon which the administrative law judge has not been
afforded an opportunity to pass ••••
30 U.S.C. § 823(d)(2)(A)(iii); Commission Procedural Rule 70(d), 29 C.F.R.
2700.70(d).

§

U.S. Steel admits in its brief that it was notified on February 4, 1982,
of the substitute judge's intention to render a decision. The judge's decision was issued on April 15, 1982, thus giving U.S. Steel approximately 65 days
within which to object to the substitution of this judge. Having been put on
notice and having· failed to raise any objection prior to the issuance of his
decision, U.S. Steel can fairly be found to have consented to, or waived any
objection to, this procedure. The judge was properly substituted, gave the

1429

parties notice of his intent~on to render a decision on the existing record,
and afforded them ample time within which to object. 5/ We discern no "good
cause" to give further consideration to this procedural challenge of U.S.
Steel on review. Thus, we conclude that the judge was properly substituted and properly proceeded to decide the case. Nevertheless, we have
specific reservations about certain findings of the judge and the civil
penalty consequences which flow from those findings. We address these
problems below.
III.

U.S. Steel contends that the judge erred in concluding that it violated
section 103(a) of·· the Mine Act by preventing Inspector Bagley from inspecting
or investigating the site of the truck rollover on January 22, 1981. U. s.
Steel's argument centers around the Secretary's authority to investigate
accidents. U.S. Steel argues that the Secretary, by his regulations at
30 C.F.R. Part 50, restricted the Act's definition of the term "accident"
to a manageable administrative threshold. 6/ According to U.S. Steei's
theory, because the injuries sustained by the truck's occupants did not
meet the "reasonable potential to cause death" standard found at 30 C.F.R.
§ 50.2(h)(2), it was under no obligation to take the Secretary's
representative to the site of the rollover.
We find it unnecessary in reaching our decision to discuss whether or
not Part 50 imposes any limits on the Secretary's accident investigation
authority under section 103(a) of the Act. Under the facts of this case,
sufficient grounds existed for Inspector Bagley, as the authorized
representative of the Secretary, to inspect the site of the rollover
pursuant to section 103(a) of the Act. Section 103(a) confers on the
5/
A party cannot be permitted to ireserve its objection "if i t should
develop that the [findings] of the (judge] ••• were not to his liking."
Braswell Motor Freight Lines, Inc. v. United States, 271 F. Supp. at 911,
cited in Merchants Fast Motor Lines Inc. v. ICC, 528 F.2d 1042, 1044
(5th Cir. 1976). However, the procedural concerns triggered by the
substitution of the judge in this case suggest that it would be a desirable practice in future substitution situations, arising after the
hearing has been conducted, for the substitute judge to include in his
notice of intent to render a decision on an existing record, a specific
time within which objections to the substitute judge rendering a
decision may be filed. Any objection must be founded on a showing of
a need for resolution of material conflicting testimony requiring
demeanor-based credibility determinations. In addition, any rehearing
should be limited, so far as practicable, to the testimonial areas in
dispute. See generally New England Coalition on Nuclear Pollution v.
NRC, 582 F.2d at 99-100.
6/
Section 3(k) of the Act, 30 U.S.C. § 802(k), states that the term
.,...accident" "includes a mine explosion, mine ignition, mine fire or mine
inundation, or injury to, or death of, any person." 30 C.F.R. § S0.2(h)(2)
defines an "accident" as: "An injury to an individual at a mine which has
a reasonable potential to cause death."

1430

Secretary's representatives authority to make "frequent inspections and
investigations" for the purpose of determining whether an imminent danger
exists, or whether there is noncompliance with mandatory safety or health
standards, citations, orders or decisions issued under the Act, or "other
requirements" of the Act. 30 U.S.C. § 813(a). Bagley was present on the
mine property to conduct a regular mine inspection required by the Act and
had authority to inspect the mine .in its entirety. Section 103(a) places
no boundary on the areas of a mine that an authorized representative may
inspect or limitations on the sequence he may employ to complete his inspection. In light of the equipment rollover and, as even Barmore's
testimony reflects, the attendant possiblity of a fuel tank explosion,
Bagley also had au~hority to determine whether an imminent danger existed.
He likewise had authority to determine whether there was compliance with
mandatory safety or health standards, or other requirements of the Act.
U.S. Steel also argues that the words and actions of Barmore, U.S.
Steel's safety engineer, did not amount to a refusal to grant Bagley access
to the scene of the rollover. While some of the events that transpired at
the mine office prior to Barmore's departure to the rollover site are in
dispute, the judge's finding that Barmore prevented Bagley from going to the
scene of the accident is supported by substantial evidence. Uncontroverted
evidence makes it clear that U.S. Steel had customarily provided MSHA personnel
on mine property with a company vehicle driven by a company representative
and that MSHA had come to rely on this practice. Barmore claimed that Bagley
could have requested permission to use a company vehicle. However, Starkovich,
Barmore's supervisor, testified that even if the inspector had requested a
vehicle to go to the scene of the truck rollover, he would have refused pending
an examination of the accident by a U.S. Steel safety engineer to determine
the type of accident involved. Barmore's refusal to allow the inspector to
accompany him in a company vehicle effectively left the inspector without any
means of transportation to the site of the truck rollover. Barmore's denial
of transportation, and Starkovich's testimony that he would have confirmed
that decision, provide substantial evid.ence to support the judge's conclusion
that U.S. Steel violated section 103(a) of the Act by preventing Bagley from
inspecting the scene of the truck rollover.
While the uncontroverted evidence of record supports the judge's conclusion that there was a violation, we conclude that certain findings the judge
made in assessing the civil penalty for the violation are not supported by
substantial evidence. Notwithstanding Barmore's denials, the judge found
that Barmore employed a "sudden, hostile and arrogant manner" in precluding
Bagley from visiting the scene of the rollover; that Barmore had "a certain
amount of disdain" for Bagley; that Barmore was "indifferen[t]" about the way
he treated inspectors; that Barmore used "rough language" in addressing Bagley;
and that U.S. Steel's violation of section 103 was "done with considerable
animosity and hostility." The judge also opined that U.S. Steel's actions
had an adverse impact on MSHA's inspection program in general. These
findings figured prominently in the judge's assessment of a civil penalty
with regard to the gravity and negligence criteria of section llO(i) of
the Mine Act. 30 U.S.C. § 820(i). He based $1,500 of his $1,510 assessed
penalty on those two criteria.

1431

In assessing the penalty, the judge considered each of the six statutory
penalty criteria. With the exception of the gravity and negligence elements,
we find that substantial evidence in the record supports the judge's findings.
On the issue of gravity, we agree with the judge that the violation was serious
b.ecause it thwarted an authorized representative's attempts to insure compliance with the Act. However, it is apparent that he exaggerated "the demoralizing effect which Barmore's action had on MSHA's inspection responsibilities."
Whether Bagley's hesitance in asserting his authority to inspect the scene of
the truck rollover was due to Barmore's statements or to his own inhibitions
is difficult to determine. Moreover, we find no evidence to suggest that
Barmore's actions had any negative effect on MSHA's enforcement program in
general. Thus, we conclude that the judge's penalty assessment overstated
the gravity of the violation.
Regarding the operator's negligence, we agree with the judge that the
violation was deliberate, but note that U.S. Steel's refusal to allow MSHA
access to the site of the rollover was based, at least in part, on its
erroneous legal interpretation of the Secretary's authority to inspect. To
support his conclusion that Barmore had "a certain amount of disdain" f,or
Bagley, and thus demonstrated a high degree of negligence imputable to
U.S. Steel, the judge relied on an extract from Barmore's own testimony.
4 FMSHRC at 641-42. In this passage, Barmore confessed to an inability to
evaluate Bagley's subjective mental reaction to Barmore's refusal to allow
him to proceed to the site of the rollover. However, the cold words of
the transcript are susceptible to various interpretations, at least as
valid as the disdain attributed to them by the judge. The judge did not
have the opportunity to observe Barmore's demeanor on the stand, and we
do not find that the cold record provides a sufficient basis upon which
to reach this conclusion. Similarly, Barmore also denied swearing at
Bagley (Tr. 182-185), and yet the judge failed to explain why he disbelieved Barmore, whose testimony was not inconsistent or contradictory.
Finally, the judge concluded that Barmore's treatment of the inspector would
not have provided as strong a basis for adversely evaluating the operator's
negligence had Starkovich, Barmore's supervisor, evinced disagreement with the
manner in which Barmore proceeded. However, the record indicates that
Starkovich agreed with Barmore's actions only as a matter of company policy.
Although that policy proved to be in error, there is nothing in Starkovich's
testimony to indicate hostility or disdain on his part, or condonation of
any such behavior by Barmore. Given a lack of substantial support in the
record, the judge's conclusion that the operator exhibited a high degree of
negligence cannot stand. We, therefore, disavow his comments.
While a judge's assessment of a penalty is an exercise of discretion,
assessments lacking record support, infected by plain error, or otherwise
constituting an abuse of discretion are not immune from reversal by this
Commission. See Sellersburg Stone Co., 5 FMSHRC 287, 292-94 (March 1983),
affirmed, No. 83-1630 (7th Cir. June 11, 1984); Southern Ohio Coal Co.,
4 FMSHRC 1459, 1465 (August 1982); !P-ox County Stone Co., Inc., 3 FMSHRC
2478, 2480-81 (November 1981). Discounting the judge's findings analyzed
above, we conclude that a penalty assessment of $400, the figure originally
proposed by the Secretary for the violation, is appropriate and consistent
with the statutory criteria. See Southern Ohio Coal Co., 4 FMSHRC
1459, 1465 (August 1982).

1432

IV.
The next·issue is whether the judge erred in holding that U.S. Steel
violated section 103(a) of the Act by insisting on the presence of a U.S.
Steel attorney when MSHA sought to interview foreman Roivanen. U.S. Steel
argues on review that the APA provides for a right to counsel when a company
supervisor is interviewed by a representative of the Secretary during the
course of an investigation. The Secretary argues that the right to counsel
is not an issue in this case because the right is a personal one and Roivanen
himself never sought to be represented by counsel. Rather, the Secretary
contends that U.S. Steel sought to have its counsel present when Roivanen
was interviewed and impeded the investigation when it failed to notify MSHA
within a reasonable time when the Secretary's representative could interview
Roivanen.
The issue of whether a non-party witness involved in an MSHA investigation has a right to benefit of counsel during a non-compulsory, investigative
interview is not directly before us because Roivanen did not seek to be represented by counsel and never asserted a personal right to representation
during an MSHA interview. Assuming, however, for the sake of discussion, that
the APA provides such a right, and that the right is incorporated by reference
under the Mine Act, the right would have to be exercised irt a reasonable manner.
See United States ex rel. Baskerville v. Deegan, 428 F.2d 714, 716 (2nd Cir.
1970), cert. denied, 400 u.s.· 928 (1970). Cognizant of that principle, we
address the issue of whether the actions of Starkovich constituted an unreasonable impedance of the MSHA accident investigation.
The evidence shows that on February 9, 1981, after receiving a miner's
section 103(g) request for an investigation, Inspectors Bagley and King
returned to the mine to investigate the rollover accident. Starkovich
told them that they could not interview foreman Roivanen unless a U.S.
Steel attorney were present. Bagley informed Starkovich that it would
be necessary for MSHA to interview Roivanen and that arrangements should
be made to provide an attorney as soon as possible. Starkovich indicated
that he would let the inspectors know when an attorney would be available,
but did not offer any date on which the inspectors could proceed with their
investigation and interview Roivanen. These facts indicate that MSHA was
willing to accommodate, at least temporarily, U.S. Steel's desire for the
presence of a U.S. Steel attorney during the interview with its foreman.
Two days later the inspectors returned to the mine and Starkovich informed
them that he had not yet received word from U.S. Steel headquarters as to
when an attorney would be available. Such an open-ended response to the
inspector's instruction that an attorney be provided as soon as possible was
unreasonable. This conclusion is bolstered by the fact that after receiving
the citation, Starkovich made a single telephone call and was able to inform
the inspectors that a U.S. Steel attorney would be present the next day.
Even assuming that U.S. Steel was within its rights in insisting on
the presence of a company attorney, Starkovich's failure to specify a date
certain when an attorney would be present, combined with the failure to
produce an attorney, had the effect of unreasonably delaying the accident
investigation. We therefore conclude that substantial evidence supports
the judge's conclusion that U.S. Steel impeded the MSHA investigation in
violation of section 103(a) of the Act.

1433

U.S. Steel also argues that in assessing a penalty of $80 for this
violation, the judge erred in considering arguments contained in its posthearing brief. The judge determined that U.S. Steel's complaints about
having to send an attorney somewhat less experienced in the field of mine
safety law in order to abate the violation largely offset any conclusion
that the speed it had exhibited in abating the citation demonstrated
"good faith" that should be used as a reason for reducing the penalty
otherwise assessable.
We agree with U.S. Steel that under the Mine Act "good faith" should be
judged in terms of objective attempts to achieve rapid compliance after
notification of a violation. We also note that the parties stipulated that
U.S. Steel demonstrated good faith in abating the citation at issue within
the time provided. Therefore, we reverse the judge on this point and reduce
the assessed penalty from $80 to $70.

v.
With respect to the judge's findings that U.S. Steel violated 30 C.F.R.
55.9-1 and 55.9-2 (n. 3, supra) in connection with the truck rollover,
U.S. Steel argues that the judge misconstrued the phrase "defect affecting
safety" contained in those standards by defining it in terms of injury or
loss to the vehicle. The operator also contends that the alleged violations
could not have been "significant and substantial" within the meaning of our
Cement Division, National Gypsum Co. decision, 3 FMSHRC 822 (April 1981),
because the judge characterized the probability of injury as remote. Finally
U.S. Steel maintains that substantial evidence does not suppvrt the judge's
conclusion that the alleged violations were the result of its unwarrantable
failure to comply with the cited standards.
§§

Relying on ordinary usage, the judge applied the dictionary definition
of the term "defect" to the dictionary definition of the term "safety." He
found that failed brakes and disconnected drive shafts were "shortcomings"
or "imperfections" in a truck with a shifted rear end, and that these defects
constituted conditions which would prevent persons riding in a vehicle from
feeling "safe from undergoing" an "injury or loss." The judge intimated
that because an accident occurred, it was certain that the truck's shifted
rear end was a defect affecting safety. He nonetheless went on to state
that inasmuch as a shifted rear end was a defect and because the potential
consequences of its presence affected safety, the record supported a finding
that the shifted rear end of the truck constituted a defect affecting safety.
We find the judge's legal reasoning to be generally in accord with our
decision in Ideal Basic Industries, Cement Division, 3 FMSHRC 843 (April 1981),
in which we construed 30 C.F.R. § 56.9-2, a regulation identical to section
55.9-2 and applicable to sand, gravel, and crushed stone mining operations.
There we held "that use of a piece of equipment containing a defective component
that could be used and which, if used, could affect safety, constitutes a
violation of 30 C.F.R. § 56.9-2." 3 FMSHRC at 844. Substantial evidence also
supports the judge's conclusion that the shifted rear end of this truck was a
defect affecting safety within the meaning of the two standards involved in
this case. There is evidence in the record that a shifted rear end is a
sign of mechanical defect, with a potential to cause an accident. Also, at
some point, a shift in a vehicle's rear end will affect safety. John Primozich,

1434

the foreman of the auto repair shop at the Minntac Mine, testified that he
would not operate a truck in which the rear end had shifted two and one
half inches because he would not feel safe. In this particular instance,
the shifted rear end caused the spring package to break, a punctured rear
tire, the broken drive shaft to separate from the vehicle, and the truck
to roll over. The truck rollover caused several back strain injuries and
a chipped elbow fracture. There is no question that the rollover had the
potential for more serious injury. All of these facts point to a defect
affecting safety.
It is also clear that, as the judge found, U.S. Steel violated the two
standards by not recording information regarding the shift in the truck's
rear end and by failing to correct the defects before the truck was used.
Kaivola, the driver, orally reported the condition to his foreman, Roivanen.
Roivanen acknowledged the report, but made no attempt to report or record
the complaint because he was preoccupied with other affairs and simply
forgot. Kaivola testified that the shovel repair shop had always had an
oral system of reporting complaints to the supervisor. Roivanen
testified that normally he would have informed the afternoon shift
foreman of the complaint and he, in turn, would have sent the truck to
the auto repair shop in order to have it repaired and back in service by
the next day shift.
In his decision, the judge referred to these and other facts. Thus,
substantial evidence supports the judge's conclusion that U.S. Steel failed
to record the defect affecting safety as required by 30~C.F.R. § 55.9-1.
It is undisputed that U.S. Steel did not correct the shift in the rear
end before the truck was used and, therefore, violated 30 C.F.R. § 55.9-2
as well.
U.S. Steel contends that the alleged violations of these standards could
not have been "significant and substantial" within the meaning of National
Gypsum because the judge characterized the probability of injury as remote.
The judge found that a significant and substantial violation requi~ed "at least
a remote possibility of injury and, additionally, that there should exist a
reasonable likelihood of occurrence of an injury or illness of a reasonably
serious nature." He concluded that the violations were significant and
substantial because shifting rear ends "were associated with a remote
possibility of an injury which would have a reasonable likelihood of
occurrence and be of a reasonably serious nature."
In National Gypsum, the Commission defined a significant and substantial
violation as requiring the existence of "a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a reasonably
serious nature." 3 FMSHRC at 825. As we stated recently:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under National
Gypsum, the Secretary of Labor must prove: (1) the underlying
violation of a mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to safety--contributed to

1435

by the violation; [7/] (3) a reasonable likelihood that the
hazard contributed to will result in injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.
Consolidation Coal Co., 6 FMSHRC 189, 193 (February 1984).
It is obvious that the judge's definition of what constitutes a significant and substantial violation differs from that employed by the Commission
in National Gypsum. The judge obscured the necessary probability element
by addressing it in terms of both a "remote possibility" and a "reasonable
likelihood." Nevertheless, substantial evidence supports the judge's ultimate
conclusion that the.violations were significant and substantial within the
meaning of National Gypsum. There is evidence that a shifted rear end is
a sign of mechanical defect, with a potential to cause an accident. There
are statements that at some point, a shift in a vehicle's rear end will affect
safety. There is also the testimony of Primozich, the auto repair shop foreman,
that he would not operate a truck in which the rear end had shifted two and
one half inches because he would not feel safe. Further, the presence of
this kind of defect affecting safety in equipment that is subsequently used
presents at least a reasonable likelihood that an injury will result. We,
therefore, conclude that substantial evidence supports the judge's ultimate
conclusion that the violations were significant and substantial within the
meaning of National Gypsum.
By contrast, the issue of whether the violations were the result of the
operator's unwarrantable failure is more straightforward. U.S. Steel argues
.that the Secretary failed to prove that Roivanen knew or should have known
that the shift in the truck's rear end could affect safety. It maintains
that this mechanical problem was not normally considered to be a defect
affecting safety, but rather a maintenance item to be corrected in the
normal course of operations. The judge repeatedly rejected that argument
and found that Roivanen was aware of the fact that wheels could rub in the
wheel wells, smoke, and even stall a vehicle's engine. He concluded that
the evidence controverted U.S. Steel's claim that prior experience with
shifted rear ends would not have enabled Roivanen to foresee the possibility
that the vehicle's mechanical condition was more than a maintenance item
and could affect safety. The judge also found that Roivanen, under the
pressure of other duties, forgot about Kaivola's having reported the shifted
rear end to him, and that he failed to report and record the defect and
failed to remove the affected equipment from service.
We note that the Interior Board of Mine Operations Appeals interpreted an
identical reference to "unwarrantable failure" in the 1969 Coal Act, 30 U.S.C.
§ 801 ~~.(1976)(amended 1977).
Zeigler Coal Co., 7 IBMA 280 (March 1977).
There the Board stated:

II

We note that this case involves the violation of mandatory safety
standards. We have pending before us a case raising a challenge to the
application of National Gypsum to a violation of a mandatory health
standard. Consolidation Coal Co., FMSHRC Docket No. WEVA 82-209-R, etc.
We intimate no views at this time as to the merits of that case.

1436

[A]n inspector should find that a violation of any
mandatory standard was caused by an unwarrantable
failure to comply with such standard if he determines
that the operator involved has failed to abate the conditions or practices constituting such violation, conditions or practices the operator knew or should have
known existed or which it failed to abate because of
a lack of due diligence, or because of indifference
or lack of reasonable care.
7 IBMA at 295-96. 8/ The Senate Committee largely responsible for drafting
the bill that became the Mine Act specifically approved the Zeigler interpretation of the term unwarrantable failure. S. Rep. No. 181, 95th Cong.,
1st Sess. 31-32 (1977) reprinted in Subcommittee on Labor, Senate Committee
on Human Resources, 95th Cong., 2nd Sess., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 619-20 (1978). This case
does not require us to examine every aspect of the Zeigler construction,
but we concur with the Board to the extent that an unwarrantable failure
to comply may be proved by a showing that the violative condition or practice
was not corrected or remedied, prior to issuance of a citation or order,
because of indifference, willful intent, or a serious lack of reasonable care.
Roivanen's testimony indicates that he was aware that a shifted rear
end could cause a truck's wheels to rub in the wheel wells, smoke, and even
stall a vehicle's engine. These facts, as previously discussed, are consistent with the judge's finding of a defect affecting safety, rather than
a maintenance item. Roivanen also admitted that normally he would have
taken the truck to the repair shop at the end of the shift or left
instructions with the afternoon shift foreman to see to the repairs, but
that he simply "forgot." Roivanen's lapse in memory can be regarded as
demonstrative of a serious lack of reasonable care. His failure to take
corrective action to remedy the violations ultimately contributed to the
occurrence of the rollover. In sum, all these facts provide substantial
support for the judge's conclusion that the violations were the result of
the operator's unwarrantable failure to comply with the cited standards.
Contrary to U.S. Steel's position, we agree with the judge and find
substantial support for his conclusion that the shifted rear end of
this truck was a defect affecting safety within the meaning of 30 C.F.R.
§§ 55.9-1 and 55.9-2, and not an item of maintenance.
Therefore, we
affirm the judge's conclusion as to the violations of the standards,
as well as his assessment of $255 for each of the violations.

8/
The Board's use of the term "abate" refers to correction of the
violative condition or practice prior to issuance of a citation or order.

1437

VI.
Based on the foregoing reasons, the decision of the administrative law
judge is affirmed in part and reversed in part. His penalty assessment is
consequently reduced from $2100 to $980.

~c4;er~:::
Richard V. Backley, Commissioner

dfe_~'""k-&-.'-/

L. Clair Nelson, Commissioner

Commissioner Jestrab, concurring in part:
I would not reduce the civil

I concur in this
penalties assessed by

1438

Commissioner Lawson dissenting:
The majority properly affirms the conclusion of the judge below that
U. S. Steel violated section 103(a) of the Act and the cited mandatory
safety standards, as indeed it must given the facts of this case. 1/
However, no credible rationale has been advanced for either the penalty
reductions for this operator's deliberate flouting of the Act, or for the
majority's disregard of the substantial evidence found by the judge below
to support imposition of the penalties he assessed. Henceforth, an operator's
deliberate defiance obviously generates reduced penalties. This error is
compounded by uncritical acceptance of the Secretary's "proposed" penalty
assessment of $400, without discussion or explanation of how that figure
is "appropriate and consistent with the statutory criteria." Slip op. at
10. ]:_/
Section llO(i) of the Act provides:
The Commission shall have authority to assess all
civil penalties provided in this Act. In assessing
civil monetary penalties, the Commission shall consider the operator's history of previous violations,
the appropriateness of such penalty to the size of
the business of the operator charged, whether the
operator was negligent, the effect on the operator's
ability to continue in business, the gravity of the
violation, and the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after notification of a violation. In
proposing civil penalties under this Act, the
Secretary may rely upon a summary review of the
information available to him and shall not be
required to make findings of fact concerning the
above factors.
It is clear from the statutory language that, although the Secretary
is not required to make findings of fact concerning the statutorily
enumerated penalty factors, the Commission is.
In a penalty proceeding
before the Commission, the Secretary's proposed penalties are merely
suggestive, and the amount of the penalty to be assessed is a de novo
determination based on the six statutory criteria. United States Steel
Mining Co., Inc., Docket No. PENN 82-328 (May 31, 1984); Sellersburg
Stone Co., 5 FMSHRC 287, affirmed, No. 83-1630 (7th Cir. June 11, 1984);
see also Rushton Mining Company, Inc., 1 FMSHRC 794 (1979); Shamrock
Coal Co., 1 FMSHRC 799 (1979); Pittsburgh Coal Co., 1 FMSHRC 1468 (1979);
Co-op Mining Company, 2 FMSHRC (1980).

1/ On the basis of the criteria set forth in my separate opinion in Cement
Division, National Gypsum Co., 3 FMSHRC 822 (April 1981), the violations of
the mandatory safety standards are, as found, significant and substantial.
]:_/ The Act nowhere mandates nor even recommends acceptance of the Secretary's
proposed penalties. To the contrary, the Act unambiguously provides that the
sole authority to assess all civil penalties provided in the Act resides with
the Connnission. Section llO(i).

1439

The majority has determined, for reasons unknown or at least unexplained,
that a $1,510 penalty, assessed because U. S. Steel violated the Act by preventing Inspector Bagley from inspecting the accident site, is too high, but $400
is "appropriate." It reaches this result by concluding--without record support-that the judge improperly based $1500 of his penalty assessment on inappropriate
negligence and gravity criteria findings.
The obvious difficulty with this rationale is that the majority has
failed to make any findings under the statutory criteria of negligence
or gravity. From all that can be discerned from the majority opinion,
$1,or nothing would be equally·"appropriate" under the "negligence" rubric,
or $400 or nothing under that of "gravity." Indeed any arbitrarily selected
figure between these extremes would be equally valid, or invalid. This hardly
meets either the section llO(i) mandate or any other criteria founded upon a
rational relationship between the statute and the penalty amounts required to
be assessed thereunder.
In contrast, the judge below made specific findings which are in
conformity with the stipulation of the parties and substantial evidence
of record. With respect to four of the six statutory criteria for penalty
assessment; viz, U. S. Steel's ability to continue in business, the good
faith demonstrated, the operator's history of previous violations, and the
size of this operator, the findings are unchallenged by my colleagues.
However, the majority asserts that certain other "findings" the judge made
in these penalty assessments that "figured prominently" in the judge's penalty
asses.sment were not supported by substantial evidence. Slip op. at 9.
Finding support in Commission precedent that permits reversal of a
judge's penalty assessment for lack of record support, ]_/ my colleagues
conclude that the judge overstated the gravity of the violation and
lacked substantial record support for his findings of a high degree of
negligence. With respect to gravity, the judge found:
The violation of section 103(a) was moderately serious
because Barmore's refusal to permit Inspector Bagley
to accompany him and Claude to the scene of the truck's
rollover prevented an MSHA inspector from being able
to carry out his functions as an inspector, those
functions being, as hereinbefore explained, the checking
of accident sites to determine whether an imminent danger
exists and whether violations of the mandatory health and
safety standards have occurred.

** *

1/ My consistent, and statutorily supported, position has been that the
Commission may not substitute its view of the statutory penalty factors
for that of the judge below. See Southern Ohio Coal Co., 4 FMSHRC 1459
August 3, 1982)(dissenting opinion).

1440

The citation was not terminated until February 9; 1981,
when the inspector was permitted to examine the truck
after it had been towed or hauled to USS's auto repair
shop. The delay which resulted in the inspector's
being able to examine the truck and interview witnesses
not only prevented the inspector from being able to get
first-hand information at the scene of the accident, but
brought about a considerable duplication of effort which
could have been avoided if the inspector had been permitted to accompany Barmore to the scene of the accident
in the first instance.
Considering the demoralizing effect which Barmore's action
had on MSHA's inspection responsibilities, a penalty of $500
is warranted under the criterion of gravity.
4 FMSHRC 616, 640-41. The judge's characterization of Barmore's conduct
to which the majority refers, relates not to gravity, but to his rejection
of U. S. Steel's contention that the inspector was not precluded from
making the inspection because he had the power to go anywhere on mine
property to inspect without U. S. Steel's consent. The judge concluded
that the inspector was precluded from inspecting the rollover site
because of Barmore's "sudden, hostile, and arrogant manner of forbidding
the inspector to accompany him," the lack of transportation, the lack of
a U. S. Steel safety engineer as an escort, and the lack of an accompanying
miners' representative. !±../ 4 FMSHRC at 641.
The facts and clear record testimony make it evident that ·the dispute
between mine inspector Bagley and U. S. Steel were not legalistic quibbles
over statutory application. Despite the lessons of Donovan v. Dewey, 452 U.S.
594 (1981), this operator deliberately decided to challenge the core of the
statute, the mine inspector's indisputable right to inspect this mine for
not only potential safety violations, but, as in this case, those which
have actually caused injury. It is contended--although not explained-that the "cold words of the transcript" are "susceptible to various interpretations" (slip op. at 10) • . To the contrary, one need hardly strain to
find copious and substantial evidence in support of the judge's interpretation.
Observation of demeanor (slip op. at 10) is unnecessary given the record before
us. Indeed, one need look no further than the transcribed testimony of the
operator's own witnesses. The admissions of its chief witness, Barmore, are
sufficient in themselves to support the judge's conclusions. 1/
4/ The majority's suggestion that Bagley's hesistance in asserting his
Inspection authority may have been due to his own inhibitions is more
properly addressed to the merits, as was the judge's contrary view. My
colleagues would reward Barmore's defiance and penalize "Bagley's hesistance
in asserting his authority." Slip op. at 10. Apparently, if Barmore
had commandeered a vehicle to travel to the accident scene, that would be less
disturbing to the majority than the manner in which he actually proceeded.
ii Although the testimony is obviously too voluminous for reproduction
here in its entirety (transcript pages 179 to 232), the samples quoted
accurately reflect, and support at least the "indifference about the way
[this operator] treated inspectors," and, indeed, the "disdain" found by
the judge below. 4 FMSHRC at 642.

1441

Barmore determined, without investigation, "that it didn't appear that
anyone was injured at the time, you know, as far as real bad" (Tr. 182) and
concluded that he would deny Bagley access to the accident scene (Tr.
182-84). The majority asserts that there was no "condonation" of Barmore's
actions by this operator. More compelling, however, is the fact that
nothing in this record reveals even a word of criticism of this,"safety
engineer's" behavior. Indeed, Starkovich, Barmore's supervisor, specifically
agreed with Barmore's barring of access to this mine accident site, testifying that he, too, would object to the MSHA inspector going to the accident
site, even in a government vehicle, and that MSHA had no right to go to the
scene of the accident (Tr. 274, 279).
Barmore also contends--astonishingly--that he "assumed" Inspector
Bagley was "satisfied, a little bit reluctantly," with Barmore's explanation of why Bagley was being denied the access he had requested to the.
mine accident (Tr. 186); that Bagley could have secured other transportation;
" ••• [a]ll he had to do was use a little initiative" (Tr. 197). Later
testimony, however, reveals the obvious futility of any attempt to secure
transportation since both Barmore and Starkovich believed Bagley had "no
right to investigate this accident" (Tr. 200-01, 279).
Compounding the denial of access to the mine accident site, was U. S.
Steel's refusal to permit its employee to give statements concerning the
accident, without the presence of an attorney (another new policy, Tr.
80) ordered and employed by U. S. Steel (Tr. 261, 264-66, 307). Whether
this too rises to the level of disdain may be open to differing assessments;
clearly it does not evidence an attitude of cooperation or willingness to
permit unhampered access to the facts of the accident. (Tr. 245).
My colleagues have given unsubstantiated credence to Barmore's
denial of the evidence which the judge Cfedited. This no more than
substitutes their opinion for that of the judge, who properly evaluated
this operator's response to the undisputed evidence that MSHA Inspector
Bagley at all times acted with scrupulous professional courtesy in
seeking to carry out his duties under the Act.
Thus, although one need not endorse every step of the penalty assessment process taken by the judge below, my colleagues have failed to provide
a more reasoned analysis supporting their reducing by more than 70% the
penalty assessed by the judge for this violation. The violation was
deliberate, not inadvertent. As the majority notes, uncontroverted evidence
makes it clear that U. S. Steel had never denied MSHA personnel on mine
property transportation by a company vehicle on previous mine inspections,
but did so in this instance. One can only speculate as to the reason for
this refusal, but the unknown, and later determined to be serious nature
of this accident, suggests ample reason for concern. Slip op. at 9.

1442

There is no dispute that U. S. Steel violated section 103(a) of
the Act by preventing Bagley from inspecting the accident scene. It is
thus established that the MSHA inspector was precluded from carrying out
his enforcement functions, even though there existed an acknowledged
possibility of a fuel tank explosion. Slip op. at 9. Accordingly, the
record contains substantial evidence to support the judge's finding.of
moderately serious gravity and his corresponding allocation of $500 for
this penalty criteria. ii
With respect to the negligence criteria, the judge stated that
Barmore's action was deliberate and thus constituted a high degree of
negligence. He also indicated that Barmore's "indifference" may not
have been used to evaluate U. S. Steel's negligence, had Barmore's
supervisor not supported his denial of Bagley's right to inspect.
Whether the judge properly or improperly characterized Barmore's attitude, ll substantial evidence cleairly supports a finding of a high
degree of negligence when an operator deliberately prevents an inspector
from carrying out his enforcement functions, as a matter of company
policy.
The majority has again embarked upon the uncharted waters of
independent penalty assessment. See Southern Ohio Coal Co., 4 FMSHRC
1459 (August 3, 1982)(dissenting opinion). Their opinion fails to cure
what they view as judicial deficiencies below by an independent assignment of numerical or other objective indicia to the Act's "negligence"
or "gravity" criteria. No guidance is furnished for either mine operators
or the Secretary by their conclusorily glossing over the penalty reduction
for this violation. This is no doubt attractive, particularly to U. S.

2_1 The majority errs when it asserts that it is "apparent" that the judge
exaggerated the demoralizing effect which Barmore's action had on MSHA
inspection responsibilities. Slip op. at 10. The judge's statement that
Barmore's "action" had a demoralizing effect on MSHA's enforcement responsibilities is certainly true as it relates to this case. Moreover, it is
hard to conceive of a more "demoralizing" course of conduct than that
initiated by· this operator, in denying Inspector Bagley his absolute right
to investigate this accident. Contrary to the assertion that Barmore's
actions had no negative on MSHA's enforcement program, given the size of
this operator, the effect of this recalcitrance by U. S. Steel could
indeed have a demoralizing effect on inspection". responsibilities at a
wide range of mining operations, not only the mines of this large and
diverse mine operator. 4 FMSHRC at 642.
II Before the Commission, U. S. Steel takes exception to certain credibility
resolutions regarding Barmore's conduct made by a substitute judge who did
not preside at the hearing. U. S. Steel maintains it was error for the judge
to base his negligence assessment (his gravity determination is not challenged)
on these attitude findings rather than on the operator's action alone. Inasmuch
as the Commission rejects U. S. Steel's challenge to these findings,
I cannot conclude that the judge erred in relying on these same findings
in the only manner to which U. S. Steel objects.

1443

Steel, but falls far short of being either judicially permissible or in
accord with the Act. The majority, as in Southern Ohio Coal Co., supra,
asserts that its assessed penalties are "appropriate and consistent with
the statutory criteria," slip op. at 10. However, it completely fails
to evaluate the gravity of the violations, merely parses the negligence
for an admittedly deliberate violation, Id., and fails to explicate its
reasons, contrary to the careful conformity to the statute exercised by
the judge.
The majority's further reduction of the judge's penalty assessment for
U. S. Steel's second violation of section 103(a) is similarly deficient.
The judge assessed a penalty of $80, which my colleagues have reduced to
$70, because they find error in the judge's analysis of U. S. Steel's
good faith. The parties stipulated that U. S. Steel demonstrated good
faith abatement after being cited. The judge found "normal good-faith
abatement," 4 FMSHRC at 663, that warranted neither an increase nor
decrease in the penalty otherwise assessable. Whatever disagreement my
colleagues may have with the judge's dicussion of U. S. Steel's abatement
efforts, his view apparently did not adversely affect his acceptance of
the parties' stipulation regarding good faith. The $80 penalty assessed
by the judge was properly based on the statutory criteria, with due
consideration to the stipulations of the parties. As he stated, his
finding of "normal good faith abatement .•• is consistent with the
parties' stipulation to the effect that U. S. Steel showed good faith
abatement as to all violations after the citations were written." Id.
Accordingly, the majority's almost frivolous $10 reduction of the assessed
penalty for this violation, for reasons irrelevant to the judge's assessment,
is unwarranted, and would appear, given the amount involved, to serve no
purpose other than to reward this operator for another deliberate violation.
The judge's assessments were based on the premise that "the purpose of
assessing penalties under the Act is to deter companies from future violations of the mandatory safety and health standards." 4 FMSHRC at 675. I
agree. The penalties imposed by the judge for each violation accurately
reflect that rationale and are in accord with Congressional intent expressed
in the Act's legislative history. Legis. Hist. at 603, 628-30.
As the Senate Committee Report notes:

In short, the purpose of a civil penalty is to induce
those officials responsible for the operation of a mine
to comply with the Act and its standards.

***

In overseeing the enforcement of the Coal Act the
Committee has found that civil penalty assessments
are generally too low, and wpen combined with the
difficulties being encountered in collection of
assessed penalties (to be discussed, infra), the
effect of the current enforcement is to eliminate
to a considerable extent, the inducement to comply
with the Act or the standards, which was the intention of the civil penalty system.
S. Rep. No. 95-181, Legis. Hist. at 629 (emphasis added).

1444

The Commission has stated that,
The determination of the amount of the penalty that should
be assessed for a particular violation is an exercise of
discretion by the trier of fact. Cf. Long Manufacturing Co.
v. OSHRC, supra, 554 F.2d [903] at 908 [8th Cir. 1977]. This
discretion is bounded by proper consideration of the statutory
criteria and the deterrent purpose underlying the Act's penalty
assessment scheme.
Sellersburg Stone Co., supra, 5 FMSHRC at 294.

As in Sellersburg,

Although the penalties assessed by the judge far exceed
those proposed by the Secretary before hearing, based on
the facts developed in the adjudicative record [I] cannot
say that the penalties assessed are inconsistent with the
statutory criteria and the deterrent pµrposebehind the
Act's provision for penalties. Hence, [I] find that the
judge's penalty assessments do not constitute an abuse of
discretion.
Id at 295, quoted in part, No. 83-1630, slip op. at 11 (7th Cir. June 11,
1984).
I therefore dissent to the reduction of the penalties imposed.

A. ~. Lawson, Commissioner

1445

Distribution
Louise. Q~ Symons, Esq •.
U.S. Steel Mining Company
600 Grant Street
Room 1585
Pittsburgh, PA 15230
Debra Feuer, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virgi:p.ia 22203
Administrative Law Judge Richard Steffey
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church., Virginia 22041

1446

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

June 27, 1984

UNITED MINE WORKERS OF AMERICA
On behalf of BILLY DALE WISE

v.

Docket No. WEVA 82-38-D

CONSOLIDATION COAL COMPANY
DECISION
This discrimination case arises under section 105(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(l982), and
involves an operator's alleged discriminatory suspension of a miner.
After investigating the miner's complaint of discrimination the Department
of Labor's Mine Safety and Health Administration (MSHA) determined that
a violation of section 105(c) had not occurred. Thereafter, pursuant to
section 105(c)(3) of the Mine Act, the United Mine Workers of America
(UMWA) filed a discrimination complaint on behalf of the miner with this
independent Commission. 30 U.S.C. § 815(c)(3). A Commission administrative
law judge found that a violation of section 105(c) had not occurred and
dismissed the complaint. 4 FMSHRC 1307 (July 1982)(ALJ). The Commission
granted the UMWA's petition for discretionary review of the judge's
decision. For the reasons that follow, we affirm.
On Friday, July 10, 1981, Billy Dale Wise, Leo Conner and James
Siburt were conducting an inspection of the One North Section of
Consolidation Coal Company's (Consol) Ireland Mine. Wise and Conner
were UMWA safety committeemen at this mine and Siburt was Consol's
acting shift foreman. They were conducting the annual safety inspection
made at this mine before miners returned to work after a vacation period.
During this inspection, they discovered an overcast .requiring additional
roof support: roof bolts were loose; wire mesh was hanging down; and
the overcast was loaded with stone. 1/ Foreman Siburt contacted Robert
Omear, the mine superintendent, and explained the situation to him.

±/

An overcast is "an enclosed airway to permit one air current to
pass over another one without interruption." A Dictionary of Mining,
Mineral, and Related Terms, U.S. Department of Interior, at 780 (1968).

1447

Omear came to the area and examined the overcast. He agreed that
additional support was necessary. Omear and Siburt hung a "danger
board" to prevent travel in the area until proper support could be
provided. Wise, Conner and Siburt then continued with their inspection
and Omear began preparations to correct the condition.
Later that day, Wise, Conner and Siburt returned to the overcast.
In response to a request by Omear, Conner was carrying a saw needed by
the miners repairing the overcast. A man-door had been erected in the
overcast. Wise could see two miners working outby the door, but from
his position outby the danger board he could not see the miners working
behind the man-doo~. Wise and Conner proceeded beyond the danger board.
Connor delivered the saw he was carrying and returned outby the danger
board. Wise looked inside the man-door and asked the miners inby the
door how the work was progressing. While inby the danger board, Wise
and Omear had a brief exchange. The testimony of the witnesses to this
conversation varies as to its particulars. The judge found that Wise
was ordered to leave the area by Omear, Omear's instructions were ignored,
and Wise remained in the area until he had completed, to his own satisfaction, his observations of the work being done. Substantial evidence
supports these findings.
After Wise returned outby the danger board, Omear told him that he
would investigate the matter and determine whether disciplinary action
against Wise would be taken for his failure to respond to Omear's
instructions. The following Monday, July 13, Wise and Omear discussed
the matter again, but no decision regarding disciplinary action was
made. On July 14, Wise was told by Omear that he was suspended for
three days, effective July 15. Wise was given a suspension letter that
stated that he had been insubordinate on July 10 by going past the
danger board and refusing to leave the area when ordered, and that his
conduct was in violation of state and federal laws and company policy.
The disciplinary action was a collective decision made by Consol's
management. ]:../
Wise filed a grievance under the National Bituminous Coal Wage
Agreement of 1981 (Wage Agreement) and the grievance was submitted to
arbitration. The arbitrator affirmed Wise's grievance, finding that he
]:_/
Although disciplinary decisions are collective decisions by Consol's
management, Omear was especially concerned about disciplining Wise.
Within the two weeks immediately prior to the incident at issue here,
Wise had filed three separate safety complaints with a state mine
inspector. As a result of these complaints, Omear was concerned that
under state law he personally could be fined if it were determined that
his suspension of Wise was a reprisal for the safety complaints. Omear
voiced this concern to Consol's management. In his decision, the
administrative law judge found that "Mr. Wise does not contend that the
disciplinary action taken against him was out of reprisal for his filing
safety complaints with the State of West Virginia mining authorities •..•
The UMWA does not advance an argument that Mr. Omear, or any other mine
management official, suspended Mr. Wise because of these complaints."
4 FMSHRC at 1329-30. These findings have not been challenged on review.

1448

had acted properly under the Wage Agreement in his role as a UMWA safety
committeeman. The arbitrator ordered Consol to reimburse Wise for lost
wages and expunge the suspension from Wise's personnel records. Wise
also filed a discrimination complaint with the Coal Mine Safety Board of
Appeals for the State of West Virginia alleging that his suspension
violated West Virginia law. The State Board of Appeals dismissed the
complaint stating that through the contractual arbitration Wise had been
granted all of the relief that the Board could grant. The instant
complaint alleging discrimination under the Mine Act was filed with the
Commission after MSHA determined that discrimination under section
105(c) had not occurred. After a hearing, the Commission's administrative law judge concluded that Wise had not engaged in activity
protected under the Mine Act by walking past the danger board and refusing
orders to leave the area.
The administrative law judge found that Wise believed he had the
right, as a safety committeeman, to enter any area of the mine, including dangered-off areas, for the purpose of insuring compliance with
mine safety laws as well as to insure the safety of miners engaging in
work connected with the correction of hazardous conditions brought to
the attention of mine management. 4 FMSHRC at 1320. The judge also
found that Consol conceded that Wise had certain prerogatives as a
safety committeeman including access to most areas of the mine to conduct
inspections. Consol took the position, however, that Wise's access to
areas that are dangered-off is limited by state and federal law to
individuals specifically authorized to be there. Id. In arguing whether
Wise had a right under the Mine Act to go inby the danger board at
issue in this case, the parties relied on sections 303(d)(l) and 104(c)(3)
of the Mine Act. 1/

1_/

Section 303 (30 u.s.c. § 863) provides in part:
Ventilation

*****
(d)(l) Within three hours immediately preceding the beginning
of any shift, and before any miner in such shift enters the active
workings of a coal mine, certified persons designated by the
operator of the mine shall examine such workings •••• If such mine
examiner finds a condition which constitutes a violation of a
mandatory health or safety standard or any condition which is
hazardous to persons who may enter or be in such area, he shall
indicate such hazardous place by posting a "DANGER" sign conspicuously at all points which persons entering such hazardous
place would be required to pass, and shall notify the operator of
the mine. No person, other than an authorized representative of
the Secretary or a State mine inspector or persons authorized by
the operator to enter such place for the purpose of eliminating the
hazardous condition therein, shall enter such place while such sign
is so posted ••••
(footnote continued)

1449

The judge rejected Consol's argument that Wise himself violated the
Mine Act. The judge found that Consol's reliance on § 303(d)(l) of the
Mine Act was misplaced because there was no evidence that the posting of
the danger board resulted from a firebossing examination by a certified
mine examiner conducted pursuant to that section. 4 FMSHRC at 1334. The
UMWA took the position that under the 1981 Coal Wage Agreement Wise was
"qualified" to make mine examinations under section 104(c)(3) and that
he was not required to be removed from an area covered by an MSHA withdrawal order. 4 FMSHRC at 1334-35. Consol argued that Wise did not
fall within that section of the statute. The judge concluded that being
chosen a safety co~tteeman pursuant to the Wage Agreement did not
"necessarily" transform Wise into a certified mine examiner for the
purposes of section 104(c)(3) of the Act. He noted that acceptance of
the UMWA's theory inevitably would lead to the conclusion that all
safety committeemen would be "qualified" or "certified" under that section
of the Act.
Thus the judge concluded that the Mine Act granted Wise no right to
be in the area beyond the operator-posted danger board and that his
refusal to leave the dangered-off area when ordered was not protected
activity under the Act. The judge stated: "Since mine management has
the primary obligation under the law to insure compliance and to preclude
any of its personnel being injured or killed by walking into these
areas, I see nothing unreasonable in mine management's requiring that
they be allowed to monitor and control these areas." Id. at 1337.
Because Wise's action was not protected activity, the judge found no
discrimination by Consol and dismissed the case.
footnote 3 cont'd.
Section 104 (30 U.S.C. § 814) provides in part:
Citations and Orders

*****
(c) The following persons shall not be required to be
withdrawn from, or prohibited from entering, any area of the coal
or other mine subject to an order issued under this section:
(1) any person whose presence in such area is
necessary, in the judgment of the operator or an
authorized representative of the Secretary, to eliminate the condition described in the order;
(2) any public off ic:ifil whose official duties
require him to enter such area;
(3). any representative of the miners in
such mine who is, in the judgment of the operator
or an authorized representat~ve of the Secretary,
qualified to make such mine examinations or who is
accompanied by such a person and whose presence in
such area is necessary for the investigation of the
conditions described in the order.
(4) any consultant to any of the foregoing.

1450

In order to establish a prima facie case of discrimination under
section 105(c) of the Mine Act, a complaining miner bears the burden of
production and proof to establish (1) that he engaged in protected
activity and· (2) that the adverse action complained of was motivated in
any part by that activity. Secretary on behalf of Pasula v. Consolidation
Coal Co. v. Marshall, 2 FMSHRC 2786, 2799-2800 (October 1980), rev'd on
other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211
(3d Cir. 1981); and Secretary on behalf of Robinette v. United Castle
Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The operator may rebut the
prima facie case by showing either that no protected activity occurred
or that the adverse action was in no way motivated by protected activity.
Id. See Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); and Donovan v.
Stafford Constr. ·Co., No. 83-1566, D.C. Cir. (April 20, 1984)(specifically
approving the Commission's Pasula-Robinette test). Cf. NLRB v. Transportation
Management Corp.,~- U.S.~-' 76 L.Ed. 2d 667 (1983).
In this case there is no dispute that Wise was disciplined for
refusing to leave the dangered-off area when ordered to do so by management. Thus, the only issue presented is whether Wise had an express or
implied right, protected by the Mine Act, to be in the area beyond the
danger board contrary to the operator's orders. If Wise had such a
right, then Consol violated section 105(c)(l) by suspending him for
exercising this right. If Wise did not have this right, then the judge
properly dismissed the discrimination complaint.
The Mine Act does not address expressly the question of whether a
safety committeeman, as a representative of miners, may proceed inby a
danger board posted by the operator upon discovery of a hazardous condition during an "inspection" conducted by the operator and miners'
representatives, rather than by MSHA. The parties suggest on review, as
they did before the judge, that sections 104 and 303(d)(l) of the Mine
Act are pertinent to this question. We disagree.
The UMWA concedes that the danger board was not posted pursuant to
section 104 during an inspection conducted by a federal inspector.
Thus, this case does not pose the question of whether Wise could have
accompanied a federal inspector inby this or any other danger board.
The UMWA's fear that a decision upholding the judge in the present case
could be interpreted as prohibiting safety committeemen from accompanying
federal inspectors during inspections and investigations is unfounded.
The UMWA also alleges that the judge erred in ruling.that safety representatives do not fall within the exception provided in section 104(c)(3)
of the Act, and that he erred by applying the definition of a "qualified
person" in 30 C.F.R. § 75.2 to section 104(c)(3). Because of our
conclusion that this case does not involve the interpretation or application
of section 104, the judge's analysis concerning that section, and whether
safety committeemen in general or Wise in particular fall within the
exception in 104(c)(3), is dicta. For this same reason, we need not
reach the question of whether the judge erred by applying the definition
of a qualified person in 30 C.F.R. § 75.2 to section 104(c)(3) of the
Act. We concur with the judge's rejection of Consol's argument that

1451

the inspection conducted by Wise was comparable to a pre-shift examination
under section 303(d)(l). The circumstances at issue did not arise from
a pre-shift examination conducted by a certified person under section
303(d)(l) of the Act and that section is not applicable to the present
case.
Thus, we conclude that neither section 104(c)(3) nor section
303(d)(l) is pertinent in the present situation. We further-conclude
that the Mine Act does not grant a right to Wise as a union safety
c~mmitteeman to proceed, contrary to orders of management, inby operatorposted danger boards in these circumstances. The well-recognized purpose
of a danger board is to restrict or eliminate access to a hazardous
area. Although the inspection team (of which Wise was a part) performed
a vital mine safety function in discovering the hazardous overcast,
under the Mine Act the statutory responsibility for accomplishing abatement of a hazardous condition is placed on mine operators. In this
case, immediately upon discovery of the hazard the operator began abatement
work. Where an operator has posted a danger board, and such posting has
not occurred as a result of a withdrawal order issued _by the Secretary,
an operator may restrict access to dangerous areas to such employees as
it deems necessary to accomplish effective correction of the hazard.
Cf. Ronnie R. Ross v. Monterey Coal Co., 3 FMSHRC 1171 (May 1981). If a
safety committeeman, or any miner, has reasonable grounds to believe
that abatement work is being performed in a manner contrary to the
statute or mandatory standards, and that a danger or hazard is thereby
presented, such miner has available the normal statutory procedures for
securing an MSHA inspection and, if appropriate, the issuance of any
necessary citations and orders. 30 U.S.C. § 813(g). See Local Union 1110,
UMWA and Robert L. Carey v. Consolidation Coal Co., 1 FMSHRC 338 (May
1979). !±./

We reject the UMWA's assertion that the judge's decision authorizes
an operator to interfere with the exercise of statutorily protected
safety activities of a miners' representative, contrary to the holding
in Carney. The Commission held in Carney that the operator violated
section llO(b) of the Coal Act by disciplining safety committeeman
Carney for leaving his assigned work area to contact a federal mirie
inspector concerning a perceived safety hazard, contrary to the operator's
policy that permission by management was necessary before he could
leave. The Commission stated that "[t]he Company's policy effectively
impedes a miner's ability to contact the Secretary when alleged safety
violations or dangers arise." 1 FMSHRC at 341. Unlike the circumstances
presented in this case, Carney involved the statutorily protected right
to notify the Secretary of any alleged violation or dang~r. In this
case, that right is not at issue.

!±_/

1452

We agree with the judge's conclusion that, in proceeding into and
refusing orders to leave an area dangered-off by the operator, Wise was
not engaged in activity protected by the Mine Act. Accordingly, the
judge's dismissal of the discrimination complaint for failure to
establish a prima facie case is affirmed. 2_/

~t/A~

C~issioner

, 7k_c_~(-1

Clair Nelson, Conunissioner

5/
The UMWA also argues that because the judge found that Wise's
actions did not violate the Mine Act, the judge should not have proceeded
to find that Wise's discipline was "reasonable and proper in the circumstances." This statement by the judge is contrary to the arbitrator's
finding that disciplinary action under the applicable 1981 Wage Agreement
was not warranted. We agree that having concluded that Wise did not
engage in activity protected by the Mine Act, the judge's comment
concerning the appropriateness of the discipline constitutes dicta on an
issue not before him. Further, in light of our conclusion that a prima
facie case of discrimination was not established, the various substantial
evidence arguments raised by the UMWA are immaterial and we need not and
do not reach them.

1453

ADMINISTRATIVE LAW JUDGE DECISIONS

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

JUN 1 1984
ROBERT SIMPSON,
Complainant

.: DISCRIMINATION PROCEEDING
:

v.

KENTA ENERGY, INC., &
ROY DAN JACKSON,
Respondents

Docket No. KENT 83-155-D
MSHA Case No. BARB CD 83-06

.: No. 1 Mine
DECISION

Appearances:

Tony Oppegard, Esq., Hazard, Kentucky and
Stephen A. Sanders, Esq., Prestonsburg,
Kentucky for Complainant;
Rudy Yessin, Esq., Frankfort, Kentucky, for
Respondents.

Before:

Judge Broderick

STATEMENT OF THE CASE
Complainant alleges that he was constructively discharged
by Respondents in that he was forced to leave his job as scoop
operator on September 21, 1982, because of safety related
conditions at the subject mine •. He further complains that
Respondents refused to reinstate him on or about December 7,
1982. Both the constructive discharge and the refusal to
reinstate are alleged to have been in violation of section
105(c)Cl) of the Mine Safety Act.
Following extensive pretrial discovery, the case was
noticed for hearing and was heard in Hazard, Kentucky on
September 8 and 9, 1983 and on January 11 and 12, 1984.
Robert Simpson, Henry Quesenberry, Paul David Helton, Marvin
Brewer, Charles Patterson, ~oy Anthony Gentry and Clyde
Gailey were called as witnesses for Complainant. Respondent
Roy Dan Jackson was called as an adverse witness. The depositions of Vernon Morgan, Danny Noe, Roy Dan Jackson, and
Charlie Patterson were received in evidence pursuant to
Rule 32 of the Federal Rules of Civil Procedure. Mike McClure
and Roy Dan Jackson testified on behalf of Respondents. Both
parties have filed posthearing briefs. Based on the entire
record, and considering the contentions of the parties, I make
the following decision.

FINDINGS OF FACT
The Operator
The complaint alleges that Respondent Kenta Energy
Incorporated C"Kenta") operated the coal mine in which
Complainant was employed. It also alleges that Respondent
Jackson was the President and owner of Kenta. The record
contains some confusing evidence concerning the relationship
of Jackson and Kenta, and concerning the relationship of
Jackson to the operation of the subject mine. It was
decided at the hearing that the issue of the personal liability of Jackson would await a determination of whether a violation of section 105Cc> was established. If such a
violation was found, the parties would be afforded the opportunity of submitting additional evidence on the question of
Jackson's liability.
From January, 1981, until September 20, 1982,
was employed as a scoop operator at the subject
mine, variously known as the Kenta No. 1 Mine, the Black Joe
Mine, and the No. 1 Mine, and bearing MSHA ID No. 15-12090,
located in Harlan County, Kentucky. The mine height varied
from 28 to 32 inches, and the coal was extracted by cutting
into the face with a cutting machine, drilling and shooting.
The coal was then removed by a scoop.
·
Complaina~t

Mine Foreman
Danny Noe was mine foreman at the subject mine from
December, 1980 until September 3, 1982. He reported
directly to Roy Dan Jackson. Noe performed the preshift and
onshift examinations required by law. He called the information out to Charles Patterson, the "outside man," who signed
Noe's name on the books. As of September 3, 1982, the mine
had been driven over 3,000 feet from the drift mouth. It
was contemplated that it would be driven about 4,000 feet to
the property line and then turned right toward an abandoned
mine property. Noe's last day of work was September 3, 1982.
He entered the hospital on September 4, because of a back
condition, and did not return to work.
Respondent Jackson testified that Stanley Gilbert, a
certified mine forem~n, was tent to the subject mine to act
in Noe's place. There is also some evidence that Tony
Gentry, the bolting machine operator at the subject mine who
was attending a foreman's school, did some of the "firebossing" for Gilbert. There is substantial other evidence that

1455

Gilbert was not at the mine between September 3 and
September 21, 1983. Respondent did not call Gilbert as a
witness. Gentry denied that he performed the required preshift and onshift examinations during this time. Patterson
testified that he continued to sign Noe's name to the books
although Noe did not come back to the mine.
I find that the
preponderance of the evidence establishes that there was no
supervisor at the subject mine between the time that Noe
left and the time Complainant left. I further find that the
preshift and onshift examinations were not performed during
the same period.
The Old Works
Some time after Noe left (and the record is unclear as
to the exact date), the mine headings turned right, toward
the old abandoned works. The crew had advanced about 200 to
250 feet in the headings to the right as of September 21,
1982. Test holes were not drilled before the cuts were made.
In fact a workable test auger had not been provided at the
mine site before September 21, 1982. Complainant and at
least two other miners specifically requested that
Patterson, who was in charge of supplies and equipment,
obtain a test auger. One was ordered but did not arrive at
the mine site until some days after September 21.
Complainant and at least some of the other crew members had
expressed their fear of cutting into the old works on many
occasions. The fear related to the possibility of releasing
"black damp" (oxygen deficient air), methane or water into
the section where the miners were working.
Respondent Jackson testified that he crawled through
the old works on two occasions and found them safe, once
with his engineer Mike McClure and once with Barry Rogers
who became foreman after Noe and Simpson l~ft their employment. There is confusion and dispute as to whether he
crawled the old works with McClure before Complainant left.
Whether he did or not, it is clear that Complainant and at
least some other members of the crew were not informed that
he had done so. Complainant had no reason to believe that
the old works were safe and free from black damp, methane
and water.
Work Refusal
After completing his shift on September 20, 1983,
Complainant decided not to return to the job. He stated
that he made this decision because there was no boss and no
test auger at the mine and this made working dangerous. Two

1456

days later at about mid-shift, he returned to the mine site
to pick up his equipment. He talked to Patterson and told
him that he had quit. Patterson suggested that he return to
work and he would be paid for the whole day. (Patterson was
the mine time keeper, but had no supervisory or hiring
authority). Complainant asked whether there was a foreman
and a test auger. Patterson replied there was not.
Complainant said "it still wouldn't help me none" (Tr. 48),
and did not return to work. There is no evidence in the
record that Complainant notified Jackson or Noe or anyone
else in authority that he was quitting or the reasons for
his quitting at the time he left or for some weeks thereafter. There is no evidence in the record that.Complainant
complained to Jackson or anyone else in authority between
September 3 and September 20 about the absence of a boss and
a test auger at the mine. Complainant lived about 3 or
4 miles from Jackson's home. He had known him for about
15 years. On three or four occasions, Complainant went to
Jackson's home to borrow money.
Refusal.to Rehire
About 1 month after Complainant quit, Vernon Morgan Ca
member of the crew at the subject mine) told Complainant's
father that a boss had been sent to the mine and a test
auger supplied. Complainant then attempted to call Jackson
but could not reach him. Thereafter (approximately in
December, 1982), Complainant and his father saw Jackson and
Complainant asked for his job back. For the first time, he
told Jackson that he had been afraid while on the job
because there was no boss and no test auger. Jackson told
him that he had no opening at that time, and refused to
rehire or reinstate Complainant. He also told him, "next
time you'll learn not to get a wild hair" (Tr. 51).
Subsequent Work History
Since leaving his job with Respondent, Claimant has
worked 3 days at a soft drink plant, about 4 months for a
reclamation company on strip mined land, and about 1 month
for a coal mine company. He was laid off the latter two
jobs and was not working at the time of the hearing in this
case. When he left his job with Respondent, Complainant was
earning $10.64 per hour.
STATUTORY PROVISION
Section 105(c) of the Act provides in part as follows:

1457

Cc)(l) No person shall discharge or in
any manner discriminate against or cause to
be discharged or cause discrimination against
or otherwise interfere with the exercise of
the statutory rights of any miner, representative of miners or applicant for employment in
any coal or other mine subject to this Act
because such.miner, representative of miners,
or applicant for employment • • • has filed
or made a complaint under or related to this
Act, including a complaint notifying the operator or the operator's agent, or the representative of the miners at the coal or other
mine of an alleged danger or safety or health
violation in a coal or other mine • • • or
because of the exercise by such miner, represenative of miners or applicant for employment on behalf of himself or others of any
statutory right afforded by this Act.
(2) Any miner or applicant for employment or representative of miners who believes
that he has been discharged, interfered with,
or otherwise discriminated against by any
person in violation of this subsection may,
within 60 days after such violation occurs,
file a complaint with the Secretary alleging
such discrimination. Upon receipt of such
complaint, the Secretary shall forward a copy
of the complaint to the respondent and shall
cause such investigation to be made as he
deems appro~riate.

*

*

*

*

*

*

*

(3) Within 90 days of the receipt of a
complaint filed under paragraph C2) '· the
Secretary shall notify, in writing, the
miner, applicant for employment, or representative of miners of his determination whether
a violation has occurred. If the Secretary,
upon investigation, determines that the provisions of this subsection have not been violated, the complainant shall have the right,
within 30 days of notice of the Secretary's
determination, to file an action in his own
behalf before the Commission, charging discrimination or interference in violation of

1458

paragraph Cl). The Commission shall afford
an opportunity for a hearing Cin accordance
with section 554 of title 5, United States
Code, but without regard to subsection (a)(3)
of such section), and thereafter shall issue
an order, based upon findings of fact, dismissing or sustaining the complainant's
charges and, if the charges are sustained,
granting such relief as it deems approrpiate,
including but not limited to, an order requiring the rehiring or reinstatement of the
miner to his former position with back pay
and interest or such remedy as may be appropriate. Such order shall become final
30 days after its issuance. Whenever an
order is issued sustaining the complainant's
charges under this subsection, a sum equal to
the aggregate amount of all costs and
expenses (including attorney's fees) as determined by the Commission to have been reasonably incurred by the miner, applicant for
employment or representative of miners for,
or in connection with, the institution and
prosecution of such proceedings shall be
assessed against the person committing such
violation. Proceedings under this section
shall be expedited by the Secretary and the
Commission. Any order issued by the
Commission under this paragraph shall be
subject to judicial review in accordance with
section 106. Violations by any person of
paragraph Cl> shall be subject to the provisions of section 108 and llO(a).
ISSUES
1. Whether Complainant's leaving work at the end of
the shift on September 20, li82, was activity protected
under the Mine Act?
2. Whether Complainant was constructively discharged
for protected activity?
3. Whether Respondent's refusal to reinstate or rehire
Complainant was a violation of section 105(c) of the Act?
4. If a violation of section 105Cc> of the Act is
established, to what relief is Complainant entitled?

1459

CONCLUSIONS OF LAW
Refusal to Work
It is no longer a matter of doubt that a miner is protected under the Mine Act where he refuses to perform work
which he reasonably and in'good faith believes to be hazardous. Secretar:Y/Pasula v. Consolidation Coal Company,
2 FMSHRC 2786 (1980), rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir.
1981>1 Secretary/Robinette v. United Castle Coal Co.,
3 FMSHRC 803 (1981). It is his refusal to work that constitutes the basis of the complaint in this case. Respondent's
argument that Complainant did not make a safety complaint to
MSHA is beside the point. Respondent introduced evidence
that Complainant quit work because of family problems rather
than because of safety concerns. I have considered this
evidence, but conclude that it is not sufficient to overcome
the credible testimony of Complainant that he quit work in
good faith because of concerns for his safety. The evidence
very clearly establishes that the work refusal was reasonable. I have found that there was no qualified supervisor
at the mine to perform the required preshift and onshift
examinations. Complainant and at least some of the other
members of the crew believed that they were cutting in the
direction of an abandoned mine. The failure to drill test
holes in such a situation is hazardous and a clear violation
of 30 C.F.R. § 75.1701. If in fact Jackson had crawled
through the old works and found .them free of hazards, he
failed to communicate this fact to Complainant.
Complainant's work refusal resulted from a reasonable good
faith belief that continuing to work would be hazardous.
Adverse Action
The next issue is whether Respondent took adverse
action against Complainant because of his work refusal.
Unlike·Pasula and Robinette, he was not formally discharged.
Two theories are advanced by Complainant to show adverse
action: Cl) he was constructively discharged because he
quit to escape an intolerable situation1 (2) he was refused
reinstatement or rehiring when he sought it in December,
1982.
Constructive Discharge
The doctrine of constructive discharge as developed in
cases under the National Labor Relations Act and Title VII

1460

of the Civil Rights Act holds that if an employee's working
conditions are made so intolerable that he is forced into an
involuntary resignation, the employer is deemed to have constructively discharged him and is liable as if it had formally discharged the employee. Young v. Southwestern
Savings and Loan Association, 509 F.2d 140 (5th Cir. 1975);
J. P. Stevens & Co. v. N.L.R.B., 461 F.2d 490 (4th Cir.
1972). The doctrine is applicable under the Mine Act if the
"intolerable ~onditions" are motivated in any part because
of activity protected under the Act. Rosalie Edwards v.
Aaron Mining Inc., 5 FMSHRC 2035 (1983). The evidence
before me establishes intolerable conditions, i.e., a perceived dangerous work environment. There is no evidence
that Respondents were "motivated" in maintaining that environment by any protected activity. But this in a way is circular reasoning. The protected activity here is Complainant's
refusal to work itself. The intolerable conditions which
caused him to quit his employment are the same conditions
justifying his work refusal. Under such circumstances, I hold
that Respondent's motivation is not controlling.
Communication to Operator
The most difficult question in this case is whether
Complainant communicated his safety concerns to Respondent
prior to or reasonably soon after his work refusal, or, if
he did not, whether unusual circumstances excused his failure
to do so. In Secretary/Dunmire and Estle v. Northern Coal
Company, 4 FMSHRC 126, 133 (1982), the Commission formulated
the rule as follows:
Where reasonably possible, a miner r~fus
ing to work should ordinarily communicate, or
at least attempt to communicate, to some representative of the operator his belief in the
safety or health hazard at issue. 'Reasonably possibility' may be lacking where, for
example, a representative of the operator is
not present, or exigent circumstances require
swift reaction. We also have used the word,
'ordinarily' in our formulation to indicate
that even where such communication is reasonably possible, unusual circumstances--such as
futility--may excuse ~ failure to communicate.
If possible, the communication should ordinarily 'be made before the work refusal, but,
depending on circumstances, may also be made
reasonably soon after the refusal.

1461

The safety hazards in this case involve Cl) approaching
the old works without drilling test holes, and (2) working
without a foreman and therefore without preshift and onshift
examinations being made. Complainant did not directly
communicate his belief in the hazard of approaching the old
works to Jackson or to anyone in authority before December,
1982. He did ask the outside man, who was not a supervisor
(but was related to Jackson), for a test auger and told him
that he was quitting because of the perceived hazards. This
communication was not relayed to Jackson so far as the
record shows. Neither Jackson nor any other management personnel were at the mine site at the time, and therefore
communication to the operator may not have been reasonably
possible at that time. However, Complainant knew where the
mine office was Che drove there every day while working),
and he knew where Jackson resided. It was certainly reasonably possible for him to have directly communicated his concerns to Jackson and thus give him an opportunity to correct
the situation or to explain that he had crawled the old
works and they were hazard-free. See Secretary/Bennett v.
Kaiser Aluminum and Chemical Corporation, 3 FMSHRC 1539
( 19 81) ( ALJ ) •
On the other hand, with respect to the absence of a
foreman and the failure to perform the preshif t and onshift
examinations, Jackson must be charged with actual knowledge
of the hazards related to these situations, and communication of them I believe would have been futile.
I do not
consider that it is necessary in order to invoke the protection of section 105(c), that it be shown that the operator
was specifically aware of the reason for a miner's work
refusal, if the operator was aware of the hazardous conditions which prompted the refusal.
Refusal to Rehire
Respondent contends that because of a recession in the
coal business, Complainant would have been laid off in any
event and that he was not rehired in December because there
was no job for him. However, no one had been laid off from
the mine as of December, 1982, and the two miners who were
laid off in January or February, 1983, were not scoop
operators.
CONCLUSIONS

1462

I conclude that Complainant's refusal to return to work
after September 20, 1982, resulted from a good faith, reasonable belief that continuing on the job would be hazardous.
The perceived hazards were cutting toward old works without
drilling test holes, and working without a foreman and without preshift and onshift examinations being performed.
Although his safety concerns were not communicated.to
Respondent, Respondents were aware of the hazardous conditions and communication of Complainant's concerns would have
been futile. Therefore, the evidence establishes a violation of 105(c) of the Mine Act. The evidence does not show
the Complainant would have been laid off for economic
reasons. Therefore, he is entitled to reinstatement and
back pay.
EVIDENTIARY RULINGS ON EXHIBITS
Respondent offered in evidence a copy of· an order of
the Kentucky Unemployment Insurance Commission which
affirmed a Referee's Decision denying unemployment benefits
to Complainant because he voluntarily left his employment
without good cause attributable to the employment.
Respondent's Exh. 1. I excluded the document on the ground
of relevance. A determination that an employee is not
entitled to unemployment compensation benefits has no
bearing on his rights under section 105Cc) of the Mine Act.
Complainant served a subpoena to MSHA Special Investigator Larry Layne who investigated Complainant's discrimination complaint to MSHA. The Solicitor of Labor declined to
authorize Layne to testify and the subpoena was not honored.
Thereafter, an expurgated copy of MSHA's investigation
report was supplied Complainant's attorney and it was
offered in evidence, under the Seal of the Department, as
Complainant's Exhibit 5. I obtained from the Solicitor an
unexpurgated copy of the report (attached to numerous other
documents) in camera with the understanding that I would not
disclose anY-part of the report which would give the names
of informers. I admitted the exhibit, as supplemented by my
reading into the record all the deleted parts of the report
(including the conclusions of the Investigator) except those
identifying informants. The report is clearly relevant, and
the upholding of the government's informer privilege is
supported by case law. Usery v. Ritter, 547 F.2d 528 (10th
Cir. 1977).
The Depositions of Danny Noe, Vernon Morgan, and
Charlie Patterson were admitted in evidence pursuant to
Federal Rule of Civil Procedure 32Ca)(3) and the Deposition

of Roy Dan Jackson was admitted in evidence pursuant to Rule
32(a)(2).

RELIEF
Based upon the above findings of fact and conclusions
of law, I conclude that Claimant was constructively discharged on September 21, 1982, for activity protected under
the Mine Safety Act. Respondent's refusal to reinstate or
rehire him was a further violation of section lOSCc> of the
Act. Complainant is entitled to reinstatement in the position he held on September 20, 1982, or a similar position at
the same rate of pay and with the same employment benefits.
Respondents are ORDERED to reinstate him in such position.
Complainant is entitled also to back pay from September 21,
1982 until the date of his reinstatement with interest
thereon. His earnings at other employment shall be a credit
against his back pay entitlement. Complainant is entitled
to be reimbursed by Respondent for reasonable attorneys'
fees and costs of litigation. Further proceedings shall be
had in this matter to resolve the question of Respondent
Jackson's liability and, if necessary, the amount to which
Complainant is entitled as back pay and attorneys' fees.
In
preparation for these proceedings, the following is ordered:
1. Complainant shall on or before June 28, 1984, file
a statement explaining with particularity the legal basis
for his claim against Respondent Jackson, and the evidence
it expects to produce to establish that claim.
2. Complainant shall file a statement on or before
June 28, 1984, showing the amount he claims as back pay and
interest using the formula set out in the case of
Secretary/Bailey·v. Arkansas-Carbona, 5 FMSHRC 2042 (1983)
to determine the interest due.
(A copy of the ArkansasCarbona decision is appended hereto).
3. Complainant shall file a statement on or before
June 28, 1984, showing amount he rquests for attorneys' fees
and necessary legal expenses. The attorneys' hours and
rates shall be set out in detail.
4. On or before July 14, 1984, Respondents shall reply
to the above statements, and, if they object to the amounts
claimed as back pay or attorneys' fees, shall state their
objections with particularity.
5. Following receipt of the above statements, a
further hearing will be scheduled, if it appears necessary.

1464

6. Until the issues of Jackson's liability, if any,
the amount due as back pay and interest and the amount due
as attorneys' fees are determined, the decision is not
final.

~~~
James A. Broderick
Administrative Law Judge

Distribution:
Tony Oppegard, Esq., Appalachian Research & Defense Fund of
Kentucky, Inc, P.O. Box 360, Hazard, KY 41701 (Certified
Mail)
Stephen A. Sanders, Esq., Appalachian Research & Defense
Fund of Kentucky, Inc., 205 Front Street, Prestonsburg, KY
41653 (Certified Mail)
Rudy Yessin, Esq., 411 West Broadway, P.O. Drawer B,
Frankfort, KY 40602 (Certified Mail)
/fb

1465

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

December 12, 1983

attachment to KENT 83-155-D

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

of MILTON BAILEY

Docket No. CENT 81-13-D

v.
ARKANSAS-CARBONA COMPANY
and
MICHAEL WALKER
DECISION
This discrimination case presents four· issues: whether the Commission's
administrative law judge abused his discretion in severing the Secretary of
Labor's request for a civil penalty from the complaint of discrimination;
whether the judge erred in awarding 6% interest on the back pay award;
whether he erred in tolling the back pay award on the date the Secretary
filed a complaint on Bailey's behalf; and whether he erred in refusing to
award Bailey tuition and certain miscellaneous expenses.
For the reasons tjlat follow, we hold tha_t the judge did not abuse his
discretion in this case when he severed the request for a civil penalty from
the discrimination complaint, but we also announce our intention to amend
Commission Procedural Rule 42, 29 C.F.R. § 2700.42, to end the need for such
severance in future cases. We adopt as the.Commission's interest rate formula
for back pay awards the interest formula used by the National Labor Relations
Board--that is, interest set at the "adjusted prime rate" announced semiannually. by the Internal Revenue Service for the underpayment and overpayment of taxes. We hold that the judge erred in assessing 6% interest on the
back pay award and remand for recalculation of the award pursuant to the
computation rules announced in this decision. We reverse the judge's order
tolling back pay on the date of the Secretary's complaint on behalf of Bailey.
We continue the ?Ward until the date Bailey informed the Secretary he did not
wish reinstatement, and additionally remand for determination of the date when
that notification occurred. Finally, we affirm the judge's holding that
Bailey was not entitled to payment of college tuition and related expenses.

1466

I.

Factual and procedural background

We briefly summarize the facts, which are undisputed, as background
for our discussion of this case. Arkansas-Carbona Company, a joint venture,
operated a small surface anthracite coal mine in Dardanelle, Arkansas at
the relevant time. Milton Bailey was employed by Arkansas-Carbona from
May 13, 1980, until his discharge on June 27, 1980. Bailey was the company's
safety director and he earned $1,000 per month. Michael Walker was the
president of one of the firms comprising the Arkansas-Carbona joint venture,
and after June 13, 1980, took over ·control of mine operations at the mine
site. On June 27, 1980, Bailey complained to Walker that the mine's first
aid kit, which had been moved from the main office to a screened porch,
should remain in the office to prevent its exposure to dust. Walker contended the kit was in a dustproof container. An argument ensued which
resulted in Bailey's discharge.
On October 20, 1980, the Secretary of Labor filed a discrimination complaint before this independent Commission on behalf of Bailey against
Arkansas-Carbona and Michael Walker. 1/ His complaint alleged that Bailey was
unlawfully discharged for exercising rights protected by section lOS(c}(l) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(1976 & Supp. V 1981). The relief sought included back pay with~% interest,
and reinstatement on the same shift with the same or equivalent duties at a
rate of pay, "presently proper" for the position. The Secretary's complaint
also requested "an order assessing a civil penalty of not more than $10,000
against [the operator] for [the] violation of section lOS(c) of the Act."
30 U.S.C. § 815(c)(Supp. V 1981). On January 22, 1981, the Secretary filed
a motion to amend his discrimination complaint. The motion stated in part:
"Subsequent to his filing of the complaint the Secretary was informed by
complainant Bailey that he did not wish to be reinstated by respondents and
that in lieu of reinstatement he would accept tuition for one year of
college plus an allowance for expenses."

The Commission's administrative law judge first held that Bailey's
complaint concerning the first aid kit on the day of his discharge was
protected activity and that Bailey's discharge was motivated in part by
that protected activity. Thus, the judge held that a prima facie case of
discrimination, that is, adverse action motivated in part by protected
activity, was proved. 3 FMSHRC 2313, 2318-19 (October 198l)(ALJ). The
judge then examined each non-discriminatory ground the operator presented
as the cause of Bailey's termination and concluded, "Neither singularly
nor in combination do Respondents' contentions establish that Respondents
would have discharged Complainant for the reasons given." 3 FMSHRC at 2319.
Therefore, the judge determined that Arkansas-Carbona's discharge of Bailey
violated section lOS(c)(l) of the Mine Act. 30 u.s.c. § 815(c)(l).
The judge awarded Bailey back pay with 6% interest from the date
of discharge until October 19, 19~0, one day before the Secretary's
complaint was filed. 3 FMSHRC at 2323. Because the complaint on behalf
of Bailey was amended January 22, 1981, to request one year's college
tuition and .. related expenses in lieu of reinstatement, the judge applied

!/

We refer to the respondents collectively as "the operator."

1467

Rule 15(c), Federal Rules of Civil Procedure, and concluded that the
amendment related back to October 20, 1980, the date of the Secretary's
complaint. 1:../ Therefore, the judge concluded that Bailey did not request
reinstatement from that date and that, accordingly, the obligation for
back pay ceased on that date. 3 FMSHRC at 2321. The judge also declined
to order the payment of one year's college tuition and expenses because
Bailey "failed to establish any entitlement to an award of 1 year of
college tuition." 3 FMSHRC at 2322. The judge also ordered expunging
of all references to "this matter" from Bailey's employment record.
In addition, the judge severed MSHA's proposed assessment of a
civil penalty from this proceeding, and he ordered MSHA to proceed under
Commission Procedural Rule 25, 29 C.F.R. § 2700.25. 3/ At the outset of
the administrative hearing, the judge explained the reason for the severance:
"I will sever the civil penalty proceeding because there ha's not been the
required administrative processing of the proposal through the notification
to the respondents of the amount of the proposed penalty or the opportunity
to discuss this matter with the District Manager's office." Tr. 4.
II.

Severance of the civil penalty from the proceedings
involving the complaint of discrimination

We first consider the question of how civil penalties for violations of
section 105(c) should be proposed and assessed in cases where the Secretary
files a complaint on behalf of a miner, and then whether the judge erred in
severing the penalty proceeding.
Civil penalties are assessed under the Mine Act to induce compliance
with the Act and its standards. See, for example, S. Rep. No. 181, 95th
Cong., 1st Sess. 40-41 (1977) (''S. Rep."), reprinted in Subcommittee on
Labor, Senate Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at
628-29 (1978) ("Legis. Hist."). Penalties are mandatory for violations of

J:./

1/

Rule 15(c), Fed. R. Civ. P., provides in part:
Relation Back of Amendments. Whenever the claim or
defense asserted in the amended pleading .arose out of
the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, the
amendment relates back to the date of the original pleading.
Commission Procedural Rule 25 provides:
The Secretary, by certified mail, shall notify the operator
or any other person against whom a penalty is proposed of:
(a) the violation alleged; (b) the amount of the penalty proposed; and (c) that such person shall have 30 days to notify
the Secretary that he wishes to contest the proposed penalty.
If within 30 days from the receipt of the Secretary's notification or proposed assessment of penalty, the operator or other
person fails to notify the Secretary that he intends to cont~st the proposed penalty, the Secretary's proposed penalty
shall be deemed to be a final order of the Commission and
shall not be subject to review by the Commission or a court.

1468

the Act and its standards. The Act separates the procedures for civil
penalty assessment between the Secretary and the Commission. The
Secretary proposes the penalty he wishes assessed for a violation and
the Commission assesses a penalty of an appropriate amount. See
Sellersburg Stone Co., 5 FMSHRC 287, 290-92 (March 1983), pet-:-for
review filed, No. 83-1630, 7th Cir., April 8, 1983; Tazco, Inc.,
3 FMSHRC 1895, 1896-98 (August 1981). !:_!
This bifurcation of functions is set forth in sections 105 and 110 of
the Act. 30 U.S.C .• §§ 815 & 820 (Supp. V 1981). Section 105(a) requires the
Secretary to take certain steps to notify an operator of the civil penalty
"proposed to be assessed under section llO(a) for the violation cited."
30 U.S.C. § 815(a). Section llO(a) provides, in turn, for penalty assessments
of not more than $10,000 per violation. 30 U.S.C. § 820(a). Section llO(i)
provides, "The Commission shall have authority to assess all civil penalties
provided in this Act." 30 U.S.C. § 820(i). After listing the six statutory
penalty criteria, section llO(i) concludes, "In proposing civil penalties under
this Act, the Secretary may rely upon a summary review of the information
available to him and shall not be required to make findings of fact concerning
the above [six] factors." 2../
Section 105(a) states that the civil penalty proposal procedures set forth
for the Secretary therein are only invoked "[i]f, after an inspection or
investigation, the Secretary issues a citation or order under section 104
[30 U.S.C. § 814)." 30 U.S.C. § 815(a). 6/ The Secretary must notify an
operator "within a reasonable time" of the penalty he proposes. If the
operator chooses to contest a proposed penalty, the Secretary must
"immediately advise" the Commission so that a hearing can be scheduled.
30 U.S.C. § 815(d). The statutory procedures for prompt notification

!:./

When penalties proposed by the Secretary are not contested, however,
a proposed civil penalty is not actually assessed but is deemed to be a
final order of the Commission, as if the Commission had assessed it.
30 U.S.C. § 815(a). See also Commission Procedural Rule 25 (n. 3 supra).
5/
The words "shall be assessed a civil penalty by the Secretary" in
section llO(a) must be read in pari materia with sections 105(a) and
llO(i). Although section llO(a) uses the language "shall be assessed a
civil penalty by the Secretary," the express language of sections lOS(a)
and llO(i) makes clear that this Secretarial function is one of proposal,
not disposition. The legislative history bears out this reading of
section llO(a). Conf. Rep. No. 461, 95th Cong., lst Sess. 58 (1977)
reprinted in Legis. Hist. 1336; S. Rep. 43, 45-46, reprinted in Legis.
Hist. 631, 633-34. Thus, the reference to "shall be assessed""in
section llO(a) means "shall be subject to a proposed assessment of a
civil penalty by the Secretary." See Sellersburg Stone Co., supra.
6/
Section 104, 30 U.S.C. § 814-CSupp. V 1981), contains the procedures
through which an operator's violations of the Act or its standards are
enforced. Section 104(a) makes clear that citations shall be issued for
violations ·of ,·,this Act, or any mandatory health or safety standard, rule,
order, or regulation p~omulgated pursuant to this Act." 30 u.s.c. § 814(a).

1469

and contest of a proposed civil penalty assessment reflect Congress' belief
that penalty assessment had lagged under the 1969 Coal Act, 30 U.S.C. § 801
~~· (1976)(amended 1977), and its consequent desire to speed the process.
Thus, the thrust of the penalty procedures under the Mine Act is to reach a
final order of the Commission assessing a civil penalty for violations
without delay.
Cases involving violations of the discrimination provisions, however,
are not initiated with the issuance of a citation or order under section
104 but, rather, with filing of special complaints before the Commission
under sections 105(c)(2) or 105(c)(3). 30 U.S.C. §§ 815(c)(2) & (3).
These two statutory subsections provide for complaint by the Secretary
if he believes discrimination has occurred, or complaint by the miner
if the Secretary declines to prosecute.
It is clear that a penalty is to be assessed for discrimination in
violation of section lOS(c)(l). The last sentence of section 105(c)(3)
states, "Violations by any person of paragraph (1) shall be subject to
the provisions of sections 108 [30 U.S.C. § 818] and section llO(a)."
30 U.S.C. § 815(c)(3). 7/ Section llO(a) requires the Secretary to
propose penalties to be-assessed for violations of the Act. Neither
section lOS(c) nor section llO(a), however, states how and when the
Secretary is to propose a penalty for a violation of section lOS(c)(l).
The Secretary's regulations in 30 C.F.R. Part 1_00 set forth "criteria
and procedures for the proposed assessment of civil penalties under section
105 and 110 of the [Mine Act]." 30 C.F.R. § 100.1. 8/ Section 100.5 lists
a number of "categories [of violations which] will be individually reviewed
to determine whether a special assessment is appropriate" including
"discrimination violations under section lOS(c) of the Act." J../
In spite of this reference to discrimination cases, none of the Part 100
regulations specifies how the Secretary shall propose a civil penalty when he
files the complaint of discrimination, and it does not appear that the
Secretary contemplated that his administrative review procedures for proposed penalties should apply to a determination that an operator had violated
7/
Section 108 permits injunctive relief and is not relevant to the
issues presented in this case.
8/
In this analysis, for convenience, we will refer to the current
Part 100 regulations, which became effective May 21, 1982. They are
substantially similar to those in effect when the judge's decision
issued. The changes made do not affect our analysis, and we would
reach ·the same conclusions under either version.
9/
A review of the discrimination cases adjudicated by this Commission indicates that the Secretary has used the section 100.5 special
assessment procedure in discrimination cases only when the miner has
proceeded on his own behalf pursuant to section 105(c)(3) of the Act
and prevailed, or when, as here, the judge has severed the penalty
proceedings_.from the discrimination case. In other discrimination
cases, the Secretary has requested a penalty in his complaint of
discrimination.

1470

section 105(c)(l). Similarly, the Commission's procedural rules do not
specifically address penalty procedures for alleged violations of section
105(c)(l). Our rules more generally require the Secretary to notify the
operator of "the violation alleged" and the penalty proposed and to afford
the operator 30 days in which to notify the Secretary if it wishes to contest
the proposal. Commission Pro.cedural Rule 25 (n. 3 supra). See also
Commission Procedural Rules 26 through 28, 29 C.F.R. §§ 2700.26 through 28. lfl/
Tiie Secretary argues that the penalty proposal procedures in section
105(a) of the Mine Act and Commission Procedural Rule 25 apply only to
citations and orders issued under section 104. Violations of the discrimination section, the Secretary urges, are subject only to the provisions expressly mentioned in section 105(c) itself. Tiie Secretary relies
on the last sentence in section 105(c)(3), which states that violations
of section 105(c)(l) "shall be subject to the provisions of sections 108
[injunctions] and llO(a)." 30 U.S.C. § 815(c)(3). He argues that because
section llO(a) contains no reference to section 104 or to section 105(a),
the assessment proposal procedures required therein need not be applied
in penalty proposals under section 105(c)(3).
Tiius, from the language of sections 105(c)(3) and llO(a), the Secretary
argues that it is not necessary to have separate penalty proceedings in
discrimination cases. Rather, he contends that penalties should be assessed
by Commission judges when liability is determined--that is, when an operator
is found in a discrimination proceeding to have violated section 105. Tiie
Secretary asserts he is "always" prepared to provide the information on the
penalty criteria in section llO(i), and that an administrative law judge will
never be more competent to decide the penalty question than at the close of
a discrimination case in which the judge has determined the existence of a
violation.
10/ Commission Procedural Rules 40 through 44 (29 C.F.R. §§ 2700.40
through 44) deal with discrimination complaints, but do not resolve the
issue of how a penalty is to be proposed. Rule 42 requires that a
discrimination complaint include, among other things, na statement of
the relief requested." Tiie rule tracks section 105(c)(2) of the Act,
which requires the Secretary in his complaint to "propose an order
granting appropriate relief." 30 U.S.C. § 815(c)(2). Tiie Secretary
contends that a civil penalty is part of the "relief" he may request
in the complaint, and that inclusion of such a request in a complaint
conforms to Rule 42 and section 105(c)(2). We conclude, however, that
"relief" as used in section 105(c) and Rule 42 indicates only those
remedies available to make the discriminatee whole. Section 105(c)(3)
states· in part, "Tiie Commission shall ••• issue an order ••• granting •••
relief ••• including ••• rehiring or reinstatement ••• with backpay and
interest or such remedy as may be appropriate." 30 U.S.C. § 815(c)(3).
The legislative history also supports this reading of "relief." See
Secretary on behalf of Dunmire and Estle v. Northern Coal Company,
4 FMSHRC 126, 142 (February 1982), citing to S. Rep. 37, reprinted in
Legis. ~~ 625. A civil penalty, on the other hand, is not intended
to compensate the victim but rather to deter the operator's future
violations.

1471

We agree with the Secretary that it is desirable to adjudicate in one
proceeding both the merits of the discrimination clai.II} and the civil penalty.
The Mine Act emphasizes, "Proceedings under [section lOS(c)] shall be
expedited by the Secretary and by the Commission." 30 U.S.C. § 81S(c)(3).
Because the last sentence of section 105(c)(3) references penalty proposals
under section llO(a), we conclude that penalty proposals for section lOS(c)
violations are to be expedited as well. The express statutory intent to
expedite these proceedings is furthered by having the Secretary avoid dual
proceedings and incorporate his penalty proposal in his discrimination
complaint.
We also conclude, however, that it is incumbent upon the Secretary in a
combined proceeding to set forth in the discrimination complaint the precise
amount of the proposed penalty with appropriate allegations concerning the
statutory criteria supporting the proposed amount. Experience makes us
somewhat skeptical about the Secretary's -assertion that he has "always" been
prepared to present evidence on penalty criteria. Formal penalty allegations
in the complaint better afford operators adequate notice of penalty issues in
discrimination cases. Because the Secretary may "rely on a summary review of
the information available to him" in proposing penalties (30 U.S.C. § 820(i)),
the penalty allegations in the discrimination complaint may be stated in summary
fashion.
In this case, the Secretary's naked request in his complaint for a penalty
of "up to $10,000" is scarcely a penalty proposal at all. Henceforth, we shall
require in these cases that the Secretary propose in his complaint a penalty in
a specific dollar amount supported by information on the section llO(i) criteria
for assessing a penalty. This new rule shall apply to cases pending with our
judges as of the date of this decision or filed with the. Commission as of, or
after, the date of this decision. Leave to amend complaints to add the penalty
allegations shall be freely granted. Thus, the operator will be informed not
only of the dollar amount proposed, but also the basis therefor. The parties
will then be better prepared to litigate at the hearing any disputes concerning
the penalty sought.
Because the Secretary did not provide in his complaint sufficient notice
to the operator of the amount of the penalty sought and the basis therefor, we
cannot say that the judge erred in severing. the penalty proposal in order to
provide such notice to the operator. Nor do we see the utility of a remand
to allow the Secretary to amend his complaint. The judge's approach to the
Secretary's inadequate proposal is consistent with the Act's notice requirements and with the position we now enunciate. Accordingly, we affirm the
judge's severance of the penalty proposal from the underlying discrimination
complaint. 1l_/

.!!.I

We are presently in the process of adopting an interim amended Rule 42,
which will reflect our resolution of the penalty issue. We also note that
this case does not raise, and we do not reach, the question of how penalties
should be p:roposed when the Secretary does not file a discrimination complaint
on the miner's behalf and the miner files his own complaint under section
105 (c) (3).

1472

III. The rate and computation of interest on back pay awards
The next question in this case is whether the judge erred in assessing
6% interest on the back pay award. The remedial goal of section lOS(c) is to
"restore the [victim of illegal discrimination] to the situation he would have
occupied but for the discrimination." Secretary on behalf of Dunmire and
Estle v. Northern Coal Co., 4 FMSHRC at 142. As we have previously observed,
"'Unless compelling reasons point to the contrary, the full measure of relief
should be granted to [an improperly] discharged employee."' Secretary on
behalf of Gooslin v. Kentucky Carbon Corp., 4 FMSHRC 1, 2 (January 1982),
quoting Goldberg v. Bama Mfg. Corp., 302 F.2d 152, 156 (5th Cir. 1962).
Included in that "full measure of relief" is interest on an award of
back pay. Section 105(c)(3) of the Mine Act expressly includes interest
in the relief that can be awarded to discriminatees, while leaving it up
to the discretion of the Commission to determine the exact contours of
such an award. 12/ The Senate Committee that drafted the section which
became section lOS(c) stated in its report:
It is the Committee's intention that the Secretary
propose, and the Commission require, all relief
that is necessary to make the complaining party
whole and to remove the deleterious effects of the
d~scriminatory conduct including, but not limited
to reinstatement with full seniority rights, backpay with interest, and recompense for any special
damages sustained as a result of ·the discrimination.
S. Rep. 37, reprinted in Legis. Hist. 625 (emphasis added).
Our judges have awarded interest at rates varying from 6% per
annum to 12.5% per annum and have used a variety of methods to compute
interest awards. At least two of our judges have adopted the NLRB's rate
of interest on back pay awards. See, e.g., Bradley v. Belva Coal Co.,
3 FMSHRC 921, 925 (April 198l)(ALJ) affld in part, remanded in part on
other grounds, 4 FMSHRC 982 (June 1982); Secretary on behalf of Smith et al.
v. Stafford Construction Co., 3 FMSHRC 2177, 2199 (September 198l)(ALJ) aff'd
in part, rev'd in part on other grounds, 5 FMSHRC 618 (April 1983), pet. for
review filed, No. 83-1566, D.C. Cir., May 27, 1983. The experience of our
12/

Section 105(c)(3) provides in part:
The Commission ••• shall issue an order, ••• if the
charges [of discrimination] are sustained, granting
such relief as it deems appropriate, including, but
not limited to, an order requ\ring the rehiring or
reinstatement of the miner to ·11is former position
with back pay and interest or such remedy as may
be appropriate.

30 u.s.c. §'81S(c)(3).

1473

judges in this area has greatly aided our evaluation of different methods
of assessing interest. It has also led us to the conclusion that it is time
to adopt a uniform method of computing interest so that all discriminatees
will be treated uniformly when they are awarded back pay under the Mine Act.
The miner has not only lost money when he or she has not been paid in
violation of section 105(c), but has also lost the use of the money. As the
NLRB has stated with regard to interest on back pay awards under the National
Labor Relations Act, "The purpose of interest is to compensate the discriminatee
for the loss of the use of his or her money." Florida Steel Corp., 231 NLRB
651, 651 (1977). Thus, in selecting an interest rate, we have considered the
potential cost to the miner both as a "creditor" of the operator, and as a
potential borrower from a lending institution under real economic conditions.
We have therefore sought a rate of interest that compensates the discriminatee
fully for the loss of the use of money. In addition, we have attempted to
select a rate of interest flexible enough to reflect economic and market
realities, but not so complex in application as to place an undue burden on
the parties and our judges when attempting to implement it.
For all of these reasons we adopt the interest rate formula used by the
NLRB: interest set at the "adjusted prime rate" announced semi-annually by the
Internal Revenue Service under 26 U.S.C.A. § 6621 (West Supp. 1983) as the
interest it applies on underpayments or overpayments of tax. The "adjusted
prime rate" of the IRS is the average predominant prime rate. quoted by
commercial banks to larger businesses as determined by the Federal Reserve
Board and rounded to the nearest full percent. 26 u.S.C.A. § 6621 (West
Supp. 1983). Under the Tax Equity and Fiscal Responsibility Act of 1982,
Pub. L. 97-248, § 345, 96 Stat. 636 (to be codified at 26 U.S.C. § 6621),
the adjusted prime rate must be established semi-annually: by October 15
based on the prime rates from April 1 to September 30, and by April 15
based on the prime rates from October 1 to March 31. The rate announced
in October becomes effective the following January 1, and the rate
announced in April becomes effective the following July 1.
We agree with the NLRB that the IRS adjusted prime rate comes closest
to compensating the miner fully for loss of the use of money. On the one
hand, if the miner had the money, he or she could invest it or save it and
probably earn less than the prime rate. On the other hand, if the miner has
to borrow money because he or she is deprived of a paycheck, the rate of
interest most likely would be higher than the prime rate. In these
circumstances, we concur with the NLRB that the IRS formula "achieves
a rough balance between that aspect of remedial interest which attempts to
compensate the discriminatee or charging party as a creditor and that which
attempts to compensate for his loss as a borrower." Olympic Medical Corp.,
250 NLRB 146, 147 (1980). This "rough balance" in our view achieves the goal
of making the miner whole for the loss of the use of money.
The IRS adjusted prime rate is also attractive for pragmatic reasons.
It is a per annum rate adjusted semi-annually, based on the prime rates for
the six months preceding its calculation. In this way, the rate reflects
economic conditions with reasonable accuracy. Its announcement well in
advance of the effective date offers notice to all parties and our judges.
g_. Olympic Medical Corp., supra.

1474

The relevant adjusted prime rates, which we adopt as the Commission's
remedial interest rates, are:
January 1, 1978 to December 31, 1979 ••• 6% per year (.0001666% per day)
January 1, 1980 to December 31, 1981. •• 12% per year (.0003333% per day)
January 1, 1982 to December 31, 1982 ••• 20% per year (.0005555% per day)
January 1, 1983 to June 30, 1983 ••••••• 16% per year (.0004444% per day)
July 1, 1983 to December 31, 1983 •••••• lU per year (.0003055% per day)
January 1, 1984 to June 30, 1984 ••••••• 11% per year (.0003055% per day)
Because the IRS rates of inter(;?st are announced as annual rates, ·it is
necessary, as explained below, to convert them to daily rates to calculate interest on.periods of less than one year ...!1/
There must also be a uniform method of computing the interest on
back pay awards under the Mine Act. We have considered a number of
possible computational approaches. We are mindful of the NLRB's extensive administrative and legal experience in this area. The NLRB's
general back pay methodology is sound and has met with judicial approval.
The labor bar is familiar with this system. We conclude that rather
than expending adrainistrative resources in attempting to devise a new
system, we will best, and most efficiently, effectuate the remedial
goals of section 105(c) of the Hine Act by adopting the major features
of the NLRB computational system. We are satisfied that this system
will do justice to the miner, avoid unnecessary penalization of the
operator, and not prove unduly burdensome for our judges and bar to
apply.
We therefore announce the following general rules for the computation of interest on back pay.
Back pay and interest shall be computed by the "quarterly" method.
See Florida Steel Corp., 231 NLRB at 652; F.W. Woolworth Co., 90 NLRB 289
(1950), approved NLRB v. Seven-Up Bottling Co., 344 U.S. 344 (1953). J!!_/

11/

Prior to the passage of the Tax Equity and Fiscal Responsibility
Act of 1982, the IRS announced the adjusted prime rate in the October
of the appropriate year to take effect the following February. For ease
of administration under the Mine Act, however, we have bounded certain
interest periods at December 31 and January 1 rather than at January 31
and February 1. (The NLRB's General Counsel has followed the same
simplifying approach. NLRB Memorandum GC 83~17, August 8, 1983.)
14/ Back pay is the amount equal to the gross pay the miner would have
earned from the operator but for the discrimination, less his actual
interim earnings. Bradley v. Belva Coal Co., 4 FMSHRC 982, 994-95 (June
1982). The first figure, the gross pay the miner would have earned, is
termed "gross back pay." The third figure, the differen~e resulting ·:rem
subtraction of actual interim earning from gross back pay, is "net back
pay"--the amount actually owing the discriminatee. Interest is awarded
on net back pay only.
In a discrimination case where, as here, there has been an illegal
discharge, the back pay period normally extends from the date of the
discrimination to the date a bona fide offer of reinstatement is made.
(As we conclude below, the period may also be tolled when the discriminatee waives the right to reinstatement.)

1475

Under this method (referred to as the "Woolworth formula," after the
NLRB's decision in the case of the same name, supra), computations are
made on a quarterly basis corresponding to the four quarters of the
calendar year. Separate computations of back pay are made for each of.
the calendar quarters involved in the back pay period. Thus, in each
quarter, the gross back pay, the actual interim earnings, if any, and
the net back pay are determined. See n. 14.
Interest on the net back pay of each quarter is assessed at the
adjusted prime interest rate or rates in effect, as explained below.
Like the NLRB, we will assess only simple interest in order to avoid
the additional complexity of compounding interest. Interest on the
amount of net back pay due and owing for each quarter involved in the
back pay period accrues beginning with the-last day of that quarter
and continuing until the date of payment. See Florida Steel Corp., 231
NLRB at 652. In calculating the amount of interest on any given quarter's
net back pay, the adjusted prime interest rates may vary between the last
day of the quarter and the date of payment. If so, the respective rates
in effect for any quarter or combination of quarters must be applied for
the period in which they were operative. The interest amounts thus accrued
for each quarter's net back pay are then summed to yield the total interest
award.
For administrative convenience, we will compute interest on the basis
of a 360-day year, 90-day quarter, and 30-day month. Using these simplified
values, the amount of interest to be assessed on each quarter's net back pay
is calculated according to the following formula:
Amount of interest = The quarter's net back pay x
number of accrued days of interest (from the last
day of that quarter to the date of payment) x daily
adjusted prime rate interest factor.
The "daily adjusted prime rate interest factor" is derived by dividing
the annual adjusted prime rate in effect by 360 days. For example, the
daily interest factor for the present adjusted prime rate of 11% is

1476

.0003055% (.11/360). The daily interest factors are shown in the list of
adjusted prime rates above. A computational example is provided in the
accompanying note. ];11
15/ The mechanics of the quarterly computation system may be illustrated
by the following hypothetical example, in which a miner is discriminatorily
discharged on January 1, 1983, and offered reinstatement on,September 30,
1983. Payment of back pay and interest is tendered on October 15, 1983.
After subtraction of the relevant interim earnings, the net back pay of
each quarter involved in the back pay period is as follows:
First quarter (beginning January 1, 1983) $1,000
§1,000
Second quarter (beginning April 1, 1983)
Third quarter (beginning July 1, 1983)
$1,000
Total net back pay
$3,000
The adjusted prime interest rates in effect in 1983 are:
16% per year (.0004444% per day) from January 1, 1983, to
June 30, 1983;
11% per year (.0003055% per day) from July 1, 1983, to
December 31, 1983.
The interest award on the net back pay of each of these quarters is as follows:
(1) First Quarter:
(a) At 16% interest until end of second quarter of 1983:
$1,000 net back pay x 91 accrued days of interest
(last day of first quarter plus the entire second
quarter) x .0004444 = $40.44
Plus,
(b) At 11% interest for entire third quarter through the
date of payment:
$1,000 net back pay x 105 accrued days of interest (the
third quarter plus 15 days) x .0003055 = $32.07
(c) Total interest award on first quarter:
$40.44 + $32.07 = $72.51
(2) Second Quarter
(a) At 16% interest for the last day of the second quarter
$1,000 x 1 accrued day of interest x .0004444 = $.44
Plus,
(b) At 11% interest for the entire third quarter through date
of payment:
$1,000 x 105 accrued days of interest x .0003055 = $32.07
(c) Total = $.44 + $32.07 = $32.51
(3) Third Quarter:
At 11% interest for the last day of the third quarter
through date of payment:
$1,000 x 16 accrued days of interest x .0003055 = $4.88 total
(4) Total Interest Award:
$72.51 + 32.51 + 4.88 = $109.90
This amount is added to the total amount of back pay ($3,000), for a total
back pay award of $3,109.90.

1477

The major alternative computational approach would involve awarding
interest on the total lump sum of net back pay from the date of discrimination to the time of payment. We recognize that this method would involve
less complex calculations. We reject the lump sum method, however, because
it would penalize the operator by assuming that the entire amount of the
back pay debt was due and owing on the first day of the back pay period.
We will carefully monitor the experience of our judges and parties in
applying the computational system announced in this decision. We will
modify the system if that experience over time demonstrates the
desirability of adjustment.
In discrimination cases, our judges should advise the parties of the
methodology for calculating back pay and interest. The parties shall submit
to the judge the requisite back pay figures and calculations, and are urged
to make as much use of stipulation as possible. The burden of computation
of interest on back pay awards should be placed primarily on the parties to
the case, not the judge, in order to comport with the adversarial system.
We apply the foregoing principles in this proceeding because the issue
of the appropriate rate of interest in discrimination cases arising under
the Mine Act was squarely raised on review. As a matter of discretionary
policy in judicial administration, we will otherwise apply these principles
only prospectiveiv to discrimination cases pending before our judges as of
the date of this decision or filed with the Commission as of, or after, the
date of this decision. We do not mean to intimate that any previous awards
of interest by our judges in other cases, based on different computational
methods, are infirm.
Applying our formula to the present case, we conclude that reversal
is necessary. The judge's award of 6% interest is so disparate from the
adjusted prime rates in effect from the date of Bailey's discharge on
June 27, 1980, as to raise questions concerning whether the complainant
would truly be made "whole" if the judge's award stands. Accordingly,
we hold that the judge erred in awarding 6% interest, and will remand
for recalculation of interest pursuant to the interest formula and
computational methods announced in this case.
IV.

Tolling of the back pay award

The judge concluded that Bailey was not entitled to back pay after
October 20, 1980, the date on which Bailey's complaint was filed. That
complaint requested reinstatement, but it was amended January 22, 1981.
The amended complaint sought back·pay and requested the Commission to
"order respondents to pay Hr. Bailey $900.00 for one year college tuition
plus $400.00 book and maintenance expense allowance in lieu of reinstatement at respondents' mine." The accompanying motion to amend stated:
Subsequent to his filing of the complaint the Secretary
was informed by complainant Bailey that he did not wish
to be reinstated by respondents and that in lieu of reinstatement he would accept tuition for one year of college
pius an allowance for expenses.

1478

The judge granted the motion to amend and, when determining the
back pay award, applied Rule 15(c), Fed. R. Civ.P., and tolled the award
on October 20, 1980.
Rule 15(c) provides that where a claim or defense
in an amended pleading arises out of the same circumstances set forth
in the original pleading, the amendment relates back to the date of
the original pleading. Relation back has been generally permitted where
the movant seeks to enlarge the basis or extent of a demand for relief.
See, for example, Goodman v. Poland, 395 F. Supp. 660, 682-86 (D. Md.
1975)(change of theory of recovery from equity to law permitted);
Wisbey v. Amer. Community Stores Corp., 288 F. Supp. 728, 730-32 (D.
Neb. 1968)(amendment seeking additional damages in FLSA action permitted).
We do not believe that the restrictive application of relation back
by the judge was appropriate in this case.
Rather, in determining when back pay should terminate, we look to the
date when Bailey informed the Secretary he no longer sought reinstatement
at Arkansas-Carbona. We agree with the judge's related conclusion: "It
would be unfair and improper to require a mine operator to pay a former
employee back pay for a period of time when the employee has unequivocally
stated that he does not want to return to his former employment." 3 FMSHRC
at 2321. In a case involving similar issues, this judge compared a miner's
lack of desire to be reinstated to a rejection of an offer of reinstatement
under the National Labor Relations Act. Secretary on behalf of Ball v.
B&B Mining, 3 FMSHRC 2371, 2378 (October 198l)(ALJ). We concur with the
NLRB rule that an employer is released from his back pay obligations when
the employee rejects an appropriate offer of reinstatement, and consider
the analogy to the facts of this case appropriate. See, for example NLRB v.
Huntington Hospital, 550 F.2d 921, 924 (4th Cir. 1977); NLRB v. Winche;ter
Electronics, Inc., 295 F.2d 288, 292 (2d Cir. 1961); Lyman Steel Co., 246
NLRB 712 (1979).
Tolling the back pay award on the date Bailey informed the Secretary
that he no longer desired reinstatement effectuates the preceding principles,
while the judge's relation back to the original complaint needlessly and
unfairly penalizes Bailey. Therefore, we reverse the judge's relation back
to the date of the original pleading. The present record does not reveal
the date Bailey informed the Secretary of his waiver of reinstatement.
Accordingly, we additionally remand for determination of that date in order
that the back pay period may be established and the necessary computations
properly made.
V.

College tuition and related expenses.

Bailey's remaining contention concerning the award is that the judge
erred in not granting him tuition and miscellaneous college expenses. The
judge held, "Complainant failed to establish any entitlement to an award of
1 year of college tuition plus $400tbook and miscellaneous expense allowance."
3 FMSHRC at 2322. We affirm the judge on this point.
The Secretary argued in his brief before the judge that Bailey would
not have paid tuition and expenses, bu~ for his accepting the position at
Arkansas-Carbona. 'J:!/ The judge found that, prior to his employment with
16/ The Secretary did not raise this issue on review and, although
Bailey briefly raised it in his petition for review, he did not file
a brief before us.

1479

Arkansas-Carbona, Bailey worked as a campus security guard at Arkansas Tech,
and as a fringe.benefit of that campus job did not pay tuition. 3 FMSHRC
at 2315. (The judge made no finding on whether Bailey's campus job also
entitled him to college expenses.) After Bailey accepted a position at
Arkansas-Carbona, and resigned from his campus job, he paid his own tuition.
The remedial goal of section lOS(c) of the Act is to return the miner
to the status quo before the illegal discrimination. Secretary on behalf
of Dunmire and Estle v. Northern Coal, 4 FMSHRC at 142. Had Bailey not been
discharged illegally, he would have been working at Arkansas-Carbona and
would have had to pay tuition for his classes. We do not see how ArkansasCarbona can be held responsible for a fringe benefit Bailey did not receive
from that company. Although at times we may need to seek alternative
remedies to make a miner whole for illegal discrimination (for example,
where reinstatement is impossible or impractical), such considerations are
not present in this case.
Accordingly, we affirm the judge's refusal to award tuition and
college expenses.
VI.

Conclusion

For the foregoing reasons, we affirm the judge's severing of the
request for a civil penalty from the merits of the discrimination case,
and hold that in future cases the Secretary must propose in his discrimination complaints a specific penalty supported by allegations
relevant to the statutory penalty criteria. As we have stated above,
we are accordingly in the process of amending our Procedural Rule 42 to
provide for unified proceedings in the future.
We reverse the Judge's assessment of 6~~ interest on back pay, and remand
to the Chief Administrative Law Judge for assignment to a judge for calculation of back pay and interest according to the principles and methodology
announced in this decision. 1J..../ We reverse the judge's tolling of the back

1J....I

The judge who decided this case has left the Commission.

1480

pay award on the date the complaint was filed, and additionally remand for
determination of the date Bailey informed the Secretary he no longer wished
reinstatement. Finally, we affirm the judge's denial of Bailey's request
for college tuition and related expenses.

iL~

L. Clair Nelson, Commissioner

1481

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

JUN 4 1984

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

:

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 84-8
A.C. No. 34-01358-03506

.
Checotah No. 1 Mine

v.

.
Docket No. CENT 84-9
: A.C. No.
.

TURNER BROTHERS, INC.,
Respondent

34-01317-035~8

Heavener No. 1 Mine

DECISION
Appearances:

Richard L. Collier, Esq., Office of the
Solicitor, U.S. Department of Labor, Dallas,
Texas, for Petitioner~
Robert J. Petrick, Esq., Turner Brothers,
Inc., Muskogee, Oklahoma, for Respondent.

Before:

Judge Melick

These cases are before me upon petitions for assessment
of civil penalty filed by the Secretary of Labor, pursuant
to section 105(d) of the Federal Mine Safety and Health Act
of 1977, 30 u.s."c. § 801 et seq., the "Act," for alleged
violations of regulatory standards. The general issues
before me are whether Turner Brothers, Inc., has violated
the cited regulatory standards and, if so, what is the appropriate civil penalty to be assessed for those violations.
In addition, where the Secretary has alleged that the violation is "significant and substantial" a determination in
that regard must also be made. A violation is "significant
and substantial" if: (1) there is an underlying violation
of a mandatory safety standard, (2) there is a discrete
safety hazard i.e. a measure of danger to safety contributed
to by the violation, (3) there is a reasonable likelihood
that the hazard contributed to will result in an injury, and
(4) there is a reasonable likelihood that the injury in question will be of a reasonable serious nature. Secretary v.
Mathies Coal Company, 6 FMSHRC 1 (1984).

1482

DOCKET NO. CENT 84-8
Citation No. 2007410 alleges a violation of the regulatory standard at 30 C.F.R. § 71.400 and charges that the
mine operator had not provided bathing facilities, clothing
change rooms and sanitary flush toilet facilities for the
use of the miner's employed at the mine. According to
Inspector Boatwright of the Federal Mine Safety and Health
Administration CMSHA), the mine operator had previously
obtained a waiver of these requirements in accordance with
30 C.F.R § 71.403, however, that waiver had expired the
month before. The operator abated the violation by obtaining a new waiver. Under the circumstances, the proposal for
settlement of this citation in the amount of $20 is
approved.
Citation No. 2077215 alleges a significant and substantial violation of the standard at 30 C.F.R. § 77.1605(b) and
reads as follows:
The 980C Caterpillar front-end loader
Company No. 495 being operated in the 002-0 pit
cleaning coal was not equipped with adequate
brakes in that when the brakes were tested on a
small incline, they would not stop or hold the
loader. Four rock trucks, two front-end loaders
and one water truck was being operated in this
area.
The cited standard requires that mobile equipment be
equipped with adequate brakes. The testimony of Inspector
Boatwright is undisputed. He testified that the cited
front-end loader had absolutely no brakes at all, and
observed that in addition to the rock trucks and front-end
loaders operating in the vicinity of the cited front-end
loader, one person was walking about in the vicinity of ~hat
loader. In addition, the evidence shows that the cited
loader had no front horn and at the beginning of the shift
and following the lunch break the cited loader would be
driven down an incline into the pit area, thus increasing
the hazard. While the inspector acknowledged that there
might not have been a serious hazard to the machine operator's so long as they remained in their cabs, there clearly
was a grave danger of serious bodily injury or death to any
pedestrian walking in the vicinity of the cited loader.
Under the circumstances, I find that the violation was
"significant and substantial" and a serious hazard.

1483

I further find that the operator was negligent in failing to have the cited equipment removed from service. It is
apparent from the uncontested evidence that the brak~ def iciency had existed for some time and should therefore have
been discovered during preshift examinations. The condition
was abated immediately by the addition of brake fluid.
There was no apparent leak in the system from which brake
fluid would have rapidly discharged.
Citation No. 2077216 alleges a significant .and substantial violation of the standard at 30 C.F.R. § 77.1605(d) and
charges that the front-end loader previously cited also had
an inoperable front horn. The cited standard requires that
mobile equipment be provided with audible warning devices.
According to the undisputed testimony of Inspector
Boatwright, the hazard associated with this violation was
significantly increased by the failure of this front-end
loader to have brakes. Accordingly, should the equipment
lose control because of the absence of brakes, no warning
could be given to persons in its path. As previously indicated, there was one pedestrian walking about in the vicinity of this front-end loader. Within this framework, I find
that the violation was indeed significant and substantial
and a serious hazard.
It is apparent that the operator was negligent in failing to check its equipment since three or four other pieces
of equipment at the mine were also without operative horns
that morning. The deficiency should have been observed on
preshift examination and corrected before the equipment was
put into service. The condition was abated by reconnecting
a loose wire.
Citation No. 2077219 alleges a violation of the standard at 30 C.F.R. § 77.1110 and charges that the 777 Caterpillar rock truck being operated in the 002-0 pit hauling
rock to the spoil area was not provided with a fire extinguisher maintained in an operative condition. The gauge on
the fire extinguisher showed the extinguisher to have been
discharged. The cited standard requires that fire fighting
equipment be continuously maintained in a useble and operative condition.
The undisputed testimony of Inspector Boatwright was
that the gauge showed the extinguisher to have been "discharged" and that should have been detected during the preshi ft examination. Boatwright conceded, however, that the

1484

extinguisher could have discharged between the time of the
preshift examination and the time he cited the violation.
Under the circumstances, the proof does not support a finding of high negligence. Boatwright also felt that the
hazard was minimal in light of the fact that all of the
other equipment operating in the pit area had operative fire
extinguishers and that little distance would separate these
vehicles.
Citation No. 2077220 alleges another significant and
substantial violation of the standard at 30 C.F.R.
§ 77.1605Cd) and charges that the 992C Caterpillar front-end
loader, Company No. 876, being operated in the 002-0 pit was
not provided with an operating front horn. According to
Inspector Boatwright, there should not ordinarily be pedestrians in the pit area where the front-end loader was operating, but nevertheless there was nothing to have prevented
pedestrian traffic in that area. Moreover, the vehicles are
driven in and out of the pit for shift changes, service and
refueling so that there is an increased area of exposure to
pedestrians.
It is reasonably likely that the inability to
provide a· warning with a front horn could lead to serious
injuries and death. The violation is accordingly signif icant and substantial and serious. It is apparent that the
operator was not making thorough preshif t checks in his
equipment because there were so many defects with horns and
back-up alarms on equipment that morning. The operator was
accordingly negligent.
Citation No. 2077301 also alleges a violation of the
standard at 30 C.F.R. § 77.1605Cd) and charges that the
other 992C Caterpillar front-end loader was also without a
front horn. Since this vehicle was operated in the same
manner as the subject of the previous citation, I find that
this violation too is significant and substantial and a
serious hazard. For the reasons noted above, I also find
that the operator was negligent.
Citation No. 2077302 also charges a violation of the
standard at 30 C.F.R. § 77.1605Cd). The same 992C Caterpillar front-end loader cited for failing to have a front
horn in the previous citation also had no backup alarm.
Boatwright observed that this equipment is operated in
reverse about 50 percent of the time and presented a serious
hazard to pedestrians in th9tpit area or in the fueling area.
Under the circumstances, I find that the violation was significant and substantial and serious. Inasmuch as there
were indeed so many defective warning devices found during
this inspection, I fin~ it unlikely that a proper preshift

1485

examination was done on the equipment and that the operator
was accordingly negligent.
Citation No. 2077303 and Citation No. 2077304 charge
significant and substantial violations on the same rock
truck for having no operative backup alarm and front horn
respectively. As previously noted, the rock trucks were
used to haul rock out of the pit area to the spoil area and
were taken outside the pit to a fueling area during lunch
and at the end of the shift. I find it reasonably likely
that pedestrians would be placed in danger of serious bodily
harm and death from the f ailiure of this rock truck to have
the required alarm equipment. The violation is significant
and substantial and serious. For the reasons previously
noted, I also find that the operator was negligent in failing to have detected and corrected these violations.
Citation No. 2077305 charges a violation of the standard at 30 C.F.R. § 77.410 charging that the International
coal truck, Company No. 126 which was hauling coal from the
pit to the coal stock pile area had not been provided with
an automatic audible reverse warning device. Boatwright's
charges are not disputed by the operator. Based on
Boatwright's testimony, I find that it was reasonably likely
for a pedestrian to have been struck and killed by this
vehicle for failing to have the required warning device. I
find the violation to be significant and substantial and
serious. I also find the operator to have been negligent.
The truck had been on the premises for some period of time
and it is not disputed that the operator was aware of the
requirement for a backup alarm on this truck.
Citation No. 2077306 charges a violation of the standard at 30 C.F.R. § 77.1109Cc)(l) and alleges that no portable fire extinguisher was provided for the coal truck
previously cited. Inspector Boatwright found only a minimal
hazard in that nearby equipment did have operative fire
extinguishers. The operator's explanation is not disputed
that it had provided an extinguisher on the equipment, but
one of the employees had temporarily removed it without the
permission or knowledge of management.
Citation No. 2077307 alleges a violation of the standard at 30 C.F.R. § 77.1707 and charges that the operator
did not have a full complement of first-aid equipment
available. According to Inspector Boatwright, the operator
had at one time the full complement of equipment, but the
first-aid kit had been pilferred and that a fully equipped
first-aid kit was available within a quarter of a mile.

1486

There is no requirement for the first-aid kit to be examined
during preshift examinations. The operator promptly abated
all violations. Within this framework, I accept the
proffered settlement of $20 for this violation.
DOCKET NO. CENT 84-9
At hearing, the parties proposed a settlement of the
one citation at issue, Citation No. 2007409, for $20. The
evidence shows that the mine operator had not indeed provided bathing facilities, clothing change rooms and sanitary
flush toilet facilities for the use of the miners employed
at the mine, however, the operator had previously obtained a
waiver of those requirements and had merely failed to apply
for a new waiver. The condition was abated upon the operator's obtaining of a new waiver of the requirements. Under
the circumstances, I find that the proffered settlement is
appropriate.
In determining the amount of penalties in this case, I
am also considering that the operator is of ·medium size and
abated all of the cited violations promptly and in good
faith. The Secretary has failed to present any evidence of
the operator's prior violations, and, therefore, I am not
considering that factor in determining the amount of
penalties herein.
ORDER
Turner Brothers, Inc. is hereby ordered to pay the
following civil penalties within 30 days of the date of this
decision:
DOCKET NO. CENT 84-8
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.

2007410
2077215
2077216
2077219
2077220
2077301
2077302
2077303
2077304
2077305
2077306
2077307

1487

$

20
200
125
30
100
100
75
75
100
150
30
20

DOCKET NO. CENT 84-9
Citation No. 2007409

20

Total Penalties

~/

$1,045
'
\

Gary Me
Assist .
Distribution:

I

dministrative Law Judge

Richard L. Collier, Esq., Office of the Solicitor, U.S.
Department of Labor, 555 Griffin Square, Suite 501, Dallas,
TX 75202 (Certified Mail)
Robert J. Petrick, Esq., Turner Brothers, Inc., P.O. Box
447, Muskogee, OK 74401 (Certified Mail)
/fb

1488

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

June 4, 1984

..
..

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

v.
PEABODY COAL.COMPANY,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 84-66
A.C. No. 02-00533-03507
Black Mesa Mine
Docket No. WEST 84-67
A.C. No. 02-01195-03506
·Kayenta ~ine

DECISION
Appearances:

John c. Nangle, Esq., Associate Regional
Solicitor, U.S. Department of Labor, Los
Angeles, California, for Petitioner.

Before:

Judge Merlin

In accordance with the duly issued Notice of Hearing,
the above-captioned cases as well as several others, came on
for hearing on May 30, 1984, as scheduled. The Solicitor
entered an appearance on behalf of the Mine Safety and
Health Administration. Pursuant to permission given in a
prior telephone conversation, operator's counsel did not
appear.
The Solicitor explained that the citations were improperly cited under 30 C.F.R. 1605(d). On this basis, the
Solicitor moved to withdraw the penalty petitions. The
Solicitor's motion being well taken, it was granted from the
bench.
Accordingly, these cases are Dismissed.

Law Judge
Distribution:
John c. Nangle, Esq., Associate Regional Solicitor, U.S.
Department of Labor, 11071 Federal Building, 450 Golden Gate
Avenue, Box 36017, San Francisco, CA 94102
(Certified
Mail)
Michael O. McKown, Esq., P.O. Box 373, St. Louis, MO
(Certified Mail)

/nw

1489

63166

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

ROGER LEE WELCH
Complainant

JUN 5 1984

:

DISCRIMINATION PROCEEDINGS

·:

Docket No:

WEVA 84-5-D

v.
MORG CD 83-22
CHESTNUT RIDGE COAL COMPANY,
Respondent
JAMES H. HARVEY,
Complainant

Docket No: WEVA 84-6-D
MORG CD 83-22

v.
CHESTNUT RIDGE COAL COMPANY,
Respondent

.
.
Docket No: WEVA 84-7-D

MELVIN E. DUNITHAN,
Complainant

MORG CD 83-22
v.
CHESTNUT RIDGE COAL COMPANY,

.

RALPH R. LUCAS
Complainant

Docket No: WEVA 84-8-D
MORG CD 83-22

v.

·Potomac Manor No. 1 Mine
CHESTNUT RIDGE COAL COMPANY,
Respondent
DECISION
Appearances:

Mark D. Moreland, Esq., Romney, West Virginia,
for Complainants
Thomas R. Lanager, Esq., Elk Ga;rden, West Virginia,
for Respondent

Before:

Judge Moore

The above case came on for hearing in Cumberland, Maryland,
on May 15, 1984. Complainants' counsel Mr. Mark D. Moreland
called as his first witness Mr. Thomas Lanager who is the
president and majority stockholder of defendent Chestnut Ridge
Coal Company. Mr. Lanager testified for approximately 2-3/4
hours, and while he freely admitted that he had, on occasion,

1490

committed· violations of certain regulations, Mr. Moreland
was unable to impeach him or shake his story to the effect
that the only reason that the four complainants had been
laid off was economics. They had all indicated that they
could not work for less then $12 an hour and he could not
afford to pay that much for the type of work they did. He
had put a substantial amount of his own money into the company
to try to keep it from going under. He could not convince
the men that the company was losing money and could not
afford to pay· $12 an hour when there were others willing to
do the same work for eight dollars an hour.
After calling five more witnesses, none of them being a
complainant, Mr. Moreland announced that after listening to
the approximate five hours of testimony and consultations
with his clients, it was apparent to him that there had been
a failure in communication between the parties as well as
misunderstandings, and that he no longer wished to prosecute
the cases. On the basis of the testimony I had heard, I
approved his action and announced that the four cases would
be dismissed.
I have withheld issuing this decision pending receipt
of the transcript. Inasmuch as the transcript has been
received, I hereby RATIFY the decision made at the hearings,
and these cases are accordingly DISMISSED.

·2~ e.?/J~1~·

Charles c. Moore, Jr.
Administrative Law Judge
Distribution:

Mark D. Moreland, Esq., 52 Rosemary Lane, Romney, West
Virginia 26757 (Certified Mail)
Mr. Thomas R. Lanager, Chestnut Ridge Coal Company, R.D. 1,
Box 277, Elk Garden, West Virginia 26717 (Certified Mail)

/db

1491

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

_JUN 6 1984

CIVIL PENALTY PROCEEDING

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

Docket No. KENT 83-131
A. C. No. 15-11065-03502
No. 10 Mine

v.
SHAMROCK COAL COMPANY, INC.,
Respondent

DECISION
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,

u. s. Department of Labor, Nashville, Tennessee,
for Petitioner;
Neville Smith, Esq., Smith & Emmons, Manchester,
Kentucky, for Respondent.

Before:

Judge Steffey

A hearing in the above-entitled proceeding was held on
May 1, 1984, in Barbourville, Kentucky, pursuant to section
105(d), 30 u.s.c. § 815(d), of the Federal Mine Safety and Health
Act of 1977. At the conclusion of presentation of evidence,
counsel for the parties made summations and I rendered a bench
decision, the substance of which is set forth below.
The proposal for assessment of civil penalty filed in Docket No. KENT 83-131 seeks to have a penalty assessed for an alleged violation of 30 C.F.R. § 48.5(d). The issues in a civil
penalty case are whether a violation occurred and, if so, what
civil penalty should be assessed, based on the six criteria set
forth in section llO(i) of the Act. The witnesses' testimony
and the exhibits in this proceeding support the following find. ings of fact:
1. Inspector Joe K. Burke went to the No. 10 Mine of
Shamrock Coal Company on March 17, 1982. He arrived at the
mine about 6:00 a.m. The miners went underground shortly after
the inspector arrived, but the mantrip was so· crowded that the
inspector could not go underground at that time. It was about
8:05 a.m. before the inspector obtained a means of transportation into the underground mine.
2. The inspector proceeded to the 001 Section where mining
was in progress. He noticed that a miner who was installing a
safety jack was wearing a new hat, a new belt, and new rubber

1492

boots, and the inspector concluded that he was a new miner. He
talked to the miner who confirmed the inspector's conclusion
that he was working his first day in the No. 10 Mine or any other
coal mine. The miner's name was Darrell Brock and he explained
to the inspector that he had received 48 hours of new-miner training at the Hazard, Kentucky, Vocational School, but he stated
that he had not been given any training at the No. 10 Mine that
day. Specifically, he had not been given any training in roof
control, or training as to entering and leaving the mine or in
the mine escapeway system.
3. Shortly after the inspector had asked the last of the
above-described questions about Brock's training, the electrical
power for the entire section suddenly went off so that all miners
had to be withdrawn. As a result of the power failure, the inspector came out of the mine about noon. On the surface, he
talked to the mine foreman, Stanley Couch, who verified Brock's
statements to the effect that no specific training had been given
to Brock before he went underground.
4. On the basis of the information summarized above, Inspector Burke issued Citation No. 1112116 which alleged a violation of section 48.S(d) of the regulations. The "condition or
practice" set forth in the citation reads as follows:
A newly hired inexperienced miner has commenced
work at this mine on the 001 Section of the mine and
the miner (Darrell Brock) is assigned duties as a
roof bolt machine helper and the miner commenced
work on this day. The miner has not been trained in
the provisions of Part 48.6(b) and Part 48.7.
Section 48.S(d}, the section alleged to have been violated, provides as follows:
Upon proof by an operator that a newly employed
miner has received the courses and hours of instruction set forth in paragraphs (a) and (b) of this section within 12 months preceding initial employment
at a mine, such miner need not repeat the training,
but the operator shall give and the miner shall receive and complete the instruction.and program of
training set forth in paragraph (b) of § 48.6 (Training of newly employed experienced miners), and § 48.7
(New task training of miners), if applicable, before
commencing work.
5. Exhibits 2 and 3 show that Brock received 48 hours of
training at the Hazard Vocational School in compliance with the
State of Kentucky's requirements under which a person is given
48 hours of training, instead of the 40 hours of training

1493

required by section 115(a) of the Act and by 30 C.F.R. § 48.5(a).
Exhibit 3 is a certification indicating that Brock on March 18,
1982, the day after the citation was issued, was given training
in such subjects as "Introduction to Work Environment, Hazard
Recognition, H & S Aspects of Tasks Assigned, Statutory Rights
of Miners, Self-Rescue & Respiratory Devices, Transport & Communication Systems, Roof/Ground Control & Ventilation, Electrical
Hazards, First Aid, Mine Gases, and Prevention of Accidents."
That certificatio.n is signed by Ikie Whitaker who is an MSHAapproved instructor at Shamrock Coal Company's mines.
6. Gordon Couch was a witness for Shamrock Coal Company.
He is the safety director at Shamrock's mines and he testified
that, as far as he was concerned, Darrell Brock, the new miner,
was given the instruction or training required by section 48.5
(d). He explained that he believes the regulations are ambiguous in directing the sequence in which training must be given
before work tasks are assigned. He said that it was not only
the practice in March 1982, but is still the practice at the
Shamrock No. 10 Mine, for a new miner to be trained on the job,
so to speak, by the various people who are in charge of a given
area of responsibility. For example, as to Exhibit 3 described
above, Couch stated that the first aspect of the training given
to Darrell Brock, that is, "Introduction to Work ·Environment",
would have been done by the section foreman as they went underground, because the section foreman at that time would have
tried to assure that the experienced miners did not frighten
the new miner with erroneous allegations made in jest and the
section foreman would have given correct information concerning
the hazards which Brock would encounter underground.
7. Gordon Couch explained further that the health and
safety aspects of the task assigned to Brock would have been
explained by the sect~on foreman on the section. Couch said
that training with respect to the specific task to which Brock
was to be assigned, that is, the position of helper to the roofbolting machine operator, would have been given by the roofbolting machine operator himself. Couch additionally stated
that a category of training, such as "Electrical Hazards", would
have been given by the mine electrician. Couch also testified
that such subjects as "Statutory Rights of Miners, First Aid,
Mine Gases, and Prevention of Accidents", would have been
covered in Brock's training by the Hazard Vocational School,
and that all Whitaker would have had to do before certifying
that Brock had been trained in those subjects would have been
to have asked Brock if he had been trained in those matters.
If Brock had answered Whitaker's questions in the affirmative,
those answers would have enabled Whitaker to certify on Exhibit
3 (or MSHA Form 5000-23) that Brock had received training in
those areas.

1494

I believe that the findings set forth above are the essential facts which the parties have presented. By way of argument,
counsel for the Secretary of Labor stated that he believed that
Shamrock was conducting its training of new miners in an entirely erroneous fashion because section 48.6(a) speci~ically refers
to the fact that the program of instruction prescribed by that
section has to be given before a new miner 1/ has been assigned
to specific work duties. The Secretary's counsel believed that
the regulations are so clear in specifying how training will be
given that Shamrock operated in a flagrant manner in claiming
that new-miner training can be given at random by assorted
supervisors and other persons trained in a given position because that procedure fails to assure that the types of training
described in the regulations and in Shamrock's training program
(Exh. 4) are provided.
Counsel for Shamrock Coal Company responded to the Secretary's arguments by contending that there is no specific sequence
set out in the regulations as to the order of training versus the
assignment of working tasks. Shamrock's counsel stressed the
provisions of section 48.7(e) which states that "All training
and supervised practice and operation required by this section
shall be given by a qualified trainer, or a supervisor experienced in the assigned tasks, or other person experienced in the
assigned tasks."
The Secretary's counsel answered Shamrock's argument by emphasizing that while section 48.7(e) permits a non-MSHA-approved
instructor to give training in the performance of a newly assigned
task, section 48.6(a), which is also part of the program of instruction to be given to newly employed miners, clearly provides
that "A newly employed experienced miner shall receive and complete training in the program of ins~ruction prescribed in this
section before such miner is assigned to work duties."
It seems to me that the Secretary's counsel presented a logical argument which is supported by the evidence and by the
provisions of the regulations. The section which is alleged to

1/ Section 48.2(b) defines Brock as an "experienced miner" because he had received 48 hours of MSHA-approved training from
the Hazard Vocational School within 12 months prior to the time
he was hired by Shamrock, but Brock was also a "newly employed
experienced miner" within the meaning of section 48.6 and was
therefore required to be given "the program of instruction" described in that section. Consequently, my reference to Brock as
a "new miner" is a simplified term which at all times should
technically be considered the equivalent of saying that Brock
was a "newly employed experienced miner" (Tr. 102-103).

1495

have been violated is section 48.S(d) which has been quoted in
Finding No. 4 ·above.
If one examines section 48.S(d) 's reference to section 48.6, he finds that subparagraph (a) of that
section states that the program of instruction prescribed for a
new miner is to be completed before such miner is assigned to
work duties.
Thereafter, subparagraph (b) lists the instruction
which is required to be given.
I can sympathize with the safety director's problems in
reading regulations.
I am required to read them frequently in
order to interpret them and I run into ambiguities myself, but I
think that it is clear from subparagraph (a) that the types of
training described in section 48.6 must be given before the miner
is assigned to work duties.
It is true, as the safety director
pointed out, that an operator could have a section foreman explain to a new miner the "work environment", referred to in section
48.6(b) (1), while they were going into the mine, and that could
be done before a person has been assigned to work on a roof-bolting
machine or elsewhere in the mine.
The second provision to be considered is subparagraph 48.6
(b) (2) which states that "The course shall include the mandatory
health and safety standards pertinent to the tasks to be assigned."
It is true, as the safety director claimed, that a supervisor
could explain to a new miner underground, before he starts doing
assigned tasks, what health and safety standards are associated
with such tasks.
Subparagraph 48.6(b) (3) refers to "Authority and responsibility of supervisors and miners' representatives," and that subsection states that 11 The course shall include a review and description of the line of authority of supervisors and miners'
representatives and the responsibilities of such supervisors and
miners' representatives; and an introduction to the operator's
rules and the procedures for reporting hazards." It is conceivable that a section foreman would have time to do all of the
instructing mentioned in the subparagraph I have just quoted,
but it is extremely unlikely that such a course would be given
on a working section. The section foreman can hardly stop and
explain to a new miner all the rights of miners and miners'
representatives, and explain the operator's rules for reporting
hazards because he has a whole section to run, and I do not believe that those things would be explained underground before a
new miner is assigned to work duties.
The next part of the training program is described in subparagraph 48.6(b) (4) which has the caption "Entering and leaving
the mine; transportation; communications" and that subsection
states that:

1496

The course shall include instruction in the procedures
in effect for entering and leaving the mine; the checkin and check-out system in effect at the mine; and the
procedures for riding on and in mine conveyances; the
controls in effect for the transportation of miners
and materials; and the use of the mine communication
systems, warning signals, and directional signs.
Section 48.6(a) requires that all the instruction described above
is to be given before any tasks have been assigned.
I doubt that
such instructions would be given underground on the working section before new miners are assigned to work duties.
Subparagraph 48.6{b) (5) provides that:
The course shall include a review of the mine map;
the escapeway system; the escape, firefighting, and
emergency evacuation plans in effect at the mine;
the location of abandoned areas; and where applicable, methods of barricading and the locations of
barricading materials. The program of instruction
for escapeways and emergency evacuation plans approved by the District Manager shall be used for
this course.
All of the above-described instruction is required to be given
before work duties are assigned. Again, i t is conceivable that
such detailed instructions could be given by a section foreman
underground before work duties are assigned, but there is no evidence in this proceeding to show that the section foreman in
Shamrock's No. 10 Mine provided the detailed instructions prescribed by subsection 48.6{b) (5).
Subparagraph 48.6(b) (6) provides that:
The course shall include an introduction to and instruction on the roof or ground control plan in
effect at the mine and procedures for roof and rib
or ground control; and an introduction to and instruction on the ventilation plan in effect at the
mine and the procedures for maintaining and controlling ventilation.
While the roof-bolting machine operator or section foreman could
undoubtedly explain the roof-control plan before assigning a new
miner his work duties, I doubt that the section foreman would
also explain the ventilation plantbefore assigning work duties.
Finally, subparagraph 48.6{b) (7) provides for "Hazard recognition" and states that "The course shall include the recognition
and avoidance of hazards present in the mine, particularly any

1497

hazards related to explosives where explosives are used or stored
at the mine." A new miner could be trained in hazard recognition
underground.
Since the No. 10 Mine uses a continuous-mining
machine, there probably are no explosives stored underground.
Nevertheless, the foregoing review of section 48.6 in detail
causes me to conclude that the courses prescribed by that section
should be given before a new miner is taken underground and it is
certain that section 48.6(a) requires that the course has to be
provided before any work duties are assigned to a new miner.
It should be noted that certain aspects of the evidence cast
considerable doubt on the question of whether Shamrock's section
foremen and other personnel were providing new miners with the
kind of instruction required by section 48.6 before work duties
are assigned.
The new miner, Brock, and the other miners had
gone into the mine to work about 7:00 a.m. so that they had been
underground for about 3 hours and 45 minutes before the inspector observed Brock setting a safety jack. At that time the roofbolting machine operator was drilling a hole in the roof. He was
not just standing there instructing the new miner in the technique
of installing safety jacks. There was every indication that the
inspector was observing a working section and that Darrell Brock
was routinely performing .the duties of a helper to the operator
of the roof-bolting machine. The mine was otherwise engaged in
mining coal and the only reason that Brock went out of the mine
at that time, so far as the record shows, is that the electricity
went off and all miners had to be withdrawn until power was restored.
Consequently, the questions which the inspector might
have asked the roof-bolting machine operator about Brock's newminer training were never asked.
Other aspects of the evidence which cause me to doubt that
Shamrock was properly performing new-miner training is that the
mine foreman, when asked whether Brock had been given the required training, said that he had not.
If the mine foreman knew
that the variegated training discussed above was supposed to be
provided by the section foreman, the roof-bolting machine operator, the chief electrician, etc., as explained by Gordon Couch,
surely the mine foreman would have explained those procedures to
the inspector, but he failed to do so.
The evidence, considered in its entirety, causes me to conclude that if Shamrock did intend to train Darrell Brock in all
of the subjects which are required by section 48.6, that the
company is failing to give the training in the manner required
by that section, that is, before work duties are assigned. Additionally, I believe that Shamrock's safety director had failed
to instruct his supervisors in the kind of training which they
are required to give new miners. The legislative history in
Senate Report No. 181, 95th Congress, 1st Session, at page 49,
refers to the lack of training provided for the miners who were

1498

working in the Scotia mine at the time it exploded.
It was the
fact that miners were not being thoroughly trained that caused
Congress to insert section 115 into the Act. While it is certain that Darrell Brock had received a lot more training than
the Scotia miners had, I fear that the use of underground personnel to provide training, as described by Shamrock's safety
director in this proceeding, amounts to a failure to carry out
the intent of Congress and the requirements expres~ed in section
48.5(d}. Therefore, I find that a violation of section 48.5(d}
occurred.
Section llO(i} of the Act requires consideration of six
criteria in assessing civil penalties.
There was introduced as
Exhibit 6, for the purpose of explaining the criterion of the
size of the operator's business, one of the proposed assessment
sheets submitted in Docket No. KENT 83-131, and that shows that
the No. 10 Mine produces approximately 500,000 tons of coal per
year. Exhibit 6 also shows the controlling company's production
to be over 13,000,000 tons annually. Counsel for Shamrock
stated that the aforesaid figure may or may not be the production of Sun Oil Company and further stated that he believes
Shamrock's annual production from all of its mines was in the
neighborhood of 2,500,000 tons per year.
Those production
figures support a finding that Shamrock is a large operator,
and to the extent that the penalty is determined under the criterion of the size of the operator's business, it should be in
an upper range of magnitude.
The second criterion is whether the payment of penalties
would cause the operator to discontinue in business. No specific
information was submitted in connection with the operator's financial condition. The Commission held in Sellersburg Stone Co.,
5 FMSHRC 287 (1983), that if an operator fails to produce facts
about its financial condition, the judge may presume that payment
of penalties would not cause the operator to discontinue in
business.
The third criterion is the history of the operator's previous violations.
There was introduced as Exhibit 5 a sheet from
the proposed assessment and that shows that Shamrock had 68 previous violations over an applicable 24-month period during 132
inspection days.
If those figures are used in accordance with
the provisions of MSHA's assessment formula set forth in 30 C.F.R.
§ 100.3, the result would be to assign four penalty points under
the assessment formula which would indicate a moderate history
of previous violations. Therefore, no portion of the penalty
will be assigned under the criterion of history of previous violations because of the operator's relatively favorable history.
There was a stipulation by the parties that the operator
demonstrated a good-faith effort to achieve rapid compliance
after the citation was issued.
It has been my practice to

1499

increase a penalty only if there is a showing of a lack of effort
to achieve compliance, and to decrease a penalty only if there is
evidence indicating some outstanding effort to achieve compliance.
In this case, the compliance was normal. Therefore, the penalty
should neither be increased nor decreased under that criterion. ·
The remaining two criteria are gravity and negligence. They
are the criteria which normally cause a penalty to be high if
either criterion is shown to exist in any serious degree. Counsel for the Secretary emphasized that Shamrock had no basis for
proceeding as it did and asserted that there was a rather high
degree of negligence involved, but when I discussed above the
provisions in section 48.G(b) prescribing the training that is
required before a new task is assigned, I found that it would
have been within the realm of possibility for an operator to give
the required new-miner instruction underground, but the preponderance of the evidence in this proceeding did not show that the
training had been given.
In such circumstances, the evidence does not support a finding of gross negligence. Shamrock contested the citation here
involved because it believed that its method of training new
miners was in compliance with the regulations. Therefore, I cannot conclude that it did anything other than stand by the procedure which its safety director believed was a proper way to provide training to new miners. Nevertheless, at least a low degree
of negligence was associated with the violation because the evidence indicates that the safety director had not properly instructed the mine foreman and other personnel in the training
methods which he expected them to follow ih connection with new
miners.
The criterion of gravity remains to be considered. I believe that the violation was serious because Darrell Brock was
not aware of having received any training during his first day
of employment, based on the inspector's testimony. Of course,
as counsel for Shamrock pointed out, only the inspector's version
of his conversation with Brock was introduced at the hearing because Brock did not appear as a witness. It is possible that
Brock, in retrospect, might say that the section foreman did explain various safety matters to him underground, but the available evidence shows that Brock was not aware of having received
any specific training when questioned by the inspector. There
were strong indications that Brock had worked as a helper for
the roof-bolting machine operator for quite a while before being
brought out of the mine after the mine's electrical power was
unexpectedly cut off. When the inspector first saw Brock, he
was setting a safety jack and appeared to be working as part of
a full production crew with no particular emphasis being given to
the training of a new miner. The possibility that Brock could
have been injured because of a lack of the kind of training which
the regulations require causes me to conclude that the violation
was serious.

1500

The discussion of the six criteria above shows that Shamrock
operates a large business, that payment of penalties will not
cause Shamrock to discontinue in business, that Shamrock demonstrated a good-faith effort to achieve compliance after the citation was written, that Shamrock has a favorable history of previous violations, that the violation was serious, and that the violation was associated with a low degree of negligence.
In such
circumstances, a civil penalty of $500 is warranted.
WHEREFORE,· i t is ordered:
Shamrock Coal Company, within 30 days from the date of this
decision, shall pay a civil penalty of $500.00 for the violation
of section 48.5(d) alleged in Citation No. 1112116 dated March 17,
1982.

~~.sJ~

Richard C. Steffey
Administrative Law Judge

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, u. s. Department
of Labor, Room 280, U. S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Neville Smith, Esq., Smith & Emmons, 110 Lawyer Street, Manchester,
KY 40962 (Certified Mail)

1501

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

JUN 6 1984

. CIVIL PENALTY PROCEEDINGS
.

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

. Docket No. PENN 83-103
:
A.C. No. 36-050)8-03512
. Docket No. PENN 83-142
. A.C.
No • 36-05018-03516
.
. Docket No. PENN 83-199
. A.C. No. 36-05018-03522
.: Cumberland Mine

v.
U.S. STEEL MINING COMPANY,
INC.,
Respondent
LOCAL 2300, UNITED MINE
WORKERS OF AMERICA,
Intervenor

DECISION
Appearances:

Matthew J. Rieder, Esq., and William M.
Connor, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., United States Steel
Corporation, Pittsburgh, Pennsylvania, for
R_espondent.

Before:

Judge Melick

These cases are before me upon the petitions for civil
penalty filed by the Secretary, pursuant to section lOSCd>
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et seq., the "Act," for violations qf regulatory standards. The general issues before me are whether U.S. Steel
Mining Company, Inc. (U.S.' Steel) has violated the regulations as alleged, and, if so, whether those violations are
of such a nature as could significantly and substantially
contribute to the cause and effect of a mine safety or
health hazard i.e. whether the violations are "significant
and substantial." If violations are found, it will also be
necessary to determine the appropriate penalty to be
assessed in accordance with section llO(i) of the Act.

1502

Citation No. 2013059 alleges a violation of the standard at 30 C.F.R. § 75.316 and reads as follows:
The approved ventilation and methane and
dust control plan was not being complied with.
Water sprays were inoperative on the section
feeder on 13 Butt section (007) located in No. 3
entry approximately 20 feet outby survey spad
6193. The water sprays were inoperative due to
a missing water hose. The feeder was in operation at the time of finding.
The relevant provisions of the operator's methane and
dust control plan are as follows: "Sprays are provided at
shuttle car discharge points, belt conveyor transfer points,
and underground dumps to allay dust."
Respondent does not dispute that a violation occurred
as charged, but argues that the violation was not "significant and substantial." In order to establish that a violation of a mandatory safety standard is "significant and
substantial," the Secretary must prove: Cl> the underlying
violation of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to safety-contributed to by ~he violation; (3) a reasonable likelihood
that the hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in question will
be of a reasonably serious nature. Secretary v. Mathies
Coal Company, 6 FMSHRC 1 (1984).
The essential facts surrounding the violation are not
disputed. According to Inspector Thomas A. Woods of the
Federal Mine Safety and Health Administration CMSHA), the
cited water sprays were not operating because the hose
providing water to the feeder had not been extended and
connected after the feeder had been advanced on December 2,
1982. Since the condition was cited on December 7, 1983, it
is apparent that the condition had existed for 5 days and
six production shifts. In addition, according to Inspector
Woods, visibility was so impaired by the coal dust in the
section that he had to feel his way along the ribs to guide
himself. Under the circumstances, supervisory personnel
could easily have discovered hnd corrected the deficiency
and were negligent in failing to do so.
According to Woods, the excessive dust at the
feeder/crusher was caused by the· absence of the water sprays.
When combined with potential ignition sources from power

1503

cables, shuttle cars and the continuous miner, the excessive
dust created a reasonable likelihood of fire or explosion.
The hazard was aggravated by the fact that the Cumberland
Mine is a "gassy mine," liberating more than 6,000,000 cubic
feet of methane in a 24-hour period. The decreased visibility created by the excessive dust also made it reasonably
likely that the shuttle car operator would strike pedestrian
miners causing serious injuries or death.
The operator maintains that the violation was not "significant and substantial" because at the time the citation
was issued, the belt had not operated for at least 8 hours.
According to the operator, when the belt does not run for
such a period of time, the bottom of the belt dries out.
There is accordingly a dusty period when the shift begins
because the sprays have no effect upon dust on the bottom of
the belt. It further argues that 36 gallons of water per
minute are sprayed on the coal as it is mined, so the coal
is already wet when it is dumped at the cited feeder/crusher.
This theoretical contention is based upon the testimony of
Robert Bohach, a U.S. Steel safety engineer who was not
present at the time the violation occurred. Based upon the
actual observations of Inspector Woods, the excessive dust
was primarily caused by the absence of water spraying over
the coal as it was being crushed.
I give the greater weight
to the first-hand testimony of Inspector ~oods.
Under all the circumstances, I find that the violation
was "significant and substantial" and constituted a serious
hazard. The condition was abated in a timely and good faith
manner.
Citation No. 2013060 also charges a violation of the
operator's ventilation and methane and dust control plan
under the standard at 30 C.F.R. § 75.316. The relevant
provisions of the operator's plan read as follows:- " [ f] low
of air in belt may be in the direction of belt flow or
against depending on individual section requirements or
limitations. If air travels against flow of coal, air will
be dumped to return it last crosscut feeder." Citation
No. 2014246 and Citation No. 2011680 also charge violations
of the operator's ventilation plan for using air coursed
through belt haulage entries to ventilate active working
places. Violations are additionally charged in these citations under the provisions of 30 C.F.R. § 75.326.
The violations alleged and the facts supporting the
preceding three citations are not disputed. The operator

1504

argues that the violations were not "significant and substantial." Inspector Woods, Moats and Sokoloff all testified
that belt air ventilating the working section would likely
result in smoke from hot rollers on the beltline moving
toward the miners working at the face, thereby resulting in
serious smoke inhalation hazards to those miners •. The operator's witness, Safety Engineer Bohach, acknowledged that
the most likely place fqr a fire in a mine would be the beltIine. In addition, Inspector Moats cited experiences in a
nearby mine where smoke was caused by a hot roller and a
beltline burned through after jamming.
According to Mark Skiles, a U.S. Steel safety inspector, there was no hazard in allowing be.lt air to move over
the face area because belt fires are ordinarily "smokers"
and belt fires are therefore easily detectable. Thus according to this view, the miners would be expect~d to discover
the fire hazard before being seriously endangered. The contention is, however, dangerously speculative and without
empirical support.
The operator contends in its posthearing brief that the
beltlines are subject to preshift examinations, that the
belts are fire resistant, that heat sensors are located
along the beltline and that Cumberland Mine has never had a
belt fire. Assuming that these contentions are accurate,
they do indeed serve to mitigate the degree of hazard. They
are not, however, sufficient in my opinion to reduce the
"significant and substantial" nature of the violation.
U.S. Steel further argues that belt air is permitted by
MSHA to ventilate the faces of so-called "pre-1970" mines,
such as the Gateway Mine, a mine with a history of belt
fires, whereas it is deemed by MSHA to be a "significant and·
substantial" violation at the Cumberland Mine, a mine.with
no history of belt fires. MSHA suggests in response that
the "pre-1970" mines that are permitted to ventilate the
faces with belt air may be required to take other steps to
avoid the hazard of belt smoke at the faces though MSHA
fails to reveal what those steps might be. Since I am not
in any event evaluating whether there has been a "significant and substantial" violation in a "pre-1970" mine and
since insufficient evidence has been presented to permit any
valid comparisons, I find the operator's argument to be
unpersuasive.
Under ·the circumstances of this case, I am convinced
that the violations are "significant and substantial" and a
serious hazard. I also find that the operator was negligent

1505
~.

in failing to detect the incorrect air movement during preshift examinations. Indeed it appears that the operator
intentionally permitted the violation. The conditions were
abated in a timely good faith manner.
In determining the amount of penalties in these cases,
I am also considering that the operator is large in size and
has a fairly substantial history of violations.
ORDER
The U.S. Steel Mining Company, Inc., is hereby ordered
to pay the following civil penalties within 30 days of the
date of this decision:
Citation No.
Citation No.
Citation No.
Citation No.

$

2013059
2013060
2014246
2011680

Total

250
250
250
250

$1,000

<
Judge
Distribution:
Matthew J. Rieder, Esq., and Wil]' m M. Connor, Esq., Office
of the Solicitor, U.S. Department of Labor, Room 144~0
Gateway Building, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)'
Louise Q. Symons, Esq., U.S. Steel Corporation, 600 Grant
Street, Pittsburgh, PA 15230 (Certified Mail)
Arthur E. Guty, Sr., Representative of Miners, Local 2300,
United Mine Workers of America, 341 Derrick Avenue,
Uniontown, PA 15401 (Certified Mail)
/fb

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 2~

June 8, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

JUN 8 1984

CIVIL PENALTY ~ROCEEDING
Docket No. YORK 84-8
A.C. No. 18-00655-03516

v.
C-Mine
METTIKI COAL CORPORATION,
Respondent
DECISION
Appearances:

Sheila K. Cronan, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington,
Virginia, for Petitioner;
Thomas C. Means, Esq., Crowell and Moring,
Washington, D.C., for Respondent.

Before:

Judge Merlin

This case is a petition for the assessment of a civil
penalty filed on March 5, 1984, by the Government against
Mettiki Coal Corporation. The operator filed an answer
denying the alleged violation and requesting a hearing. By
amended notice of hearing issued May 3, 1984, this case was
set for hearing on May 17, 1984. The hearing was held as
scheduled.
,
Section 75.329 provides as follows:
On or before December 30, 1970, all areas
from which pillars have been wholly or partially
extracted and abandoned areas, as determined by
the Secretary or his authorized representative,
shall be ventilated by bleeder entries or by
bleeder systems or equivalent means, or be
sealed, as determined by the Secretary or his
authorized representative. When ventilation
of such areas is required, such ventilation
shall be maintained so as continuously to dilute,
render harmless, and carry away methane and other
explosive gases within such areas and to protect
the active workings of the mine from the hazards
of such methane and other explosive gases. Air
coursed through underground areas from which
pillars have been wholly or partially extracted

which enters another split of air shall not contain more than 2.0 volume per centum of methane,
when tested at the point it ente;rs such other
split. When sealing is required, such seals
shall be made in an approved manner so ~s to
isolate with explosion-proof bulkheads such
areas from the active workings of the mine.
Citation No. 2117299 describes the condition or practice as follows:
In the exploratory butt entries mined to
the left of the right sub mains three rooms
was mined [sic] to the left off the exploratory butt for a distance of 7 connecting
crosscuts which is a distance· of 560 feet
and the coal in the blocks between the Nos.
1 and 2 rooms were partially extracted
without establishing a bleeder system or
other equivalent means to ventilate the
pillared area.
The coal in the blocks between the Nos. 2
and 3 rooms were not extracted [sic) and a
row of permanent stoppings had been erected
between these rooms up to the No. 5 connecting crosscut f6r the purpose of f o~cing the
air over the pillared area up to the No. 7
crosscut and returning back, but due to a
massive cave-in in the Nos. l and 2 ;rooms,
the concussion of the falls blew the permanent stoppings out in the Nos. 3, 4, ~nd 5
crosscuts, and at the No. 7 cros$CUt which is
the last open between the Nos. 2 and 3 rooms
there was .4% methane gas detected when examined
with a permissible M-402 hand held methane detector, also a bottle sample was collected for a
laboratory analysis, and ai,r measurement was
made in this area with a chemical smoke cloud
and only 2,000 cubic feet of air per minute
could be obtained.
There is no dispute between the parties wi.th .respect to
the facts.
It was explained at the hea,ring that the air
coursing through the One Butt right sub mains was not directed through the bleeder entries so as to carry away
methane from gobbed out areas.
This misdi,rection of air
happened because metal stoppings in the affected area had
been blown out by a roof fall.
The operator abated by
installing permanent concrete stoppings.
The violation was serious because without a bleeder
system, methane would not be carried away but would instead
travel to the working areas.
The operator was negligent,

1508

although there apparently was some confusion on the opera. tor's part as to whether a bleeder system plan had been
approved for this area.
The operator is large in size.
Its prior history is
average and payment of a penalty will not affect its ability
to continue in business.
The operator agreed to pay the original assessed penalty of $1000 which the Solicitor agreed to accept. After
being acquainted with all the facts, I approved the recommended settlement from the bench.
The operator is Ordered to pay $1000 within 30 days
from the date of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Sheila K. Cronan, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson ~oulevard, .N:;:lington, VA
22203
(Certified Mail)
Thomas C. Means, Esq., Crowell and Moring, 1100 Connecticut
Avenue, N.W., Washington, DC 20036
lCe;rti;fied M.ai.ll
/nw

1509

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

June 8, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 83-143
A.C. No. 36-05018-03518

v.
UNITED STATES STEEL MINING
COMPANY, INC. ,
Respondent

Docket No. PENN 83-154
A.C. No. 36-05018-03520
Docket No. PENN 83-223
A.C. No. 36-05018-03527
Cumberland Mine
Docket No. PENN 83-219
A.C. No. 36-00970-03525
Maple Creek No. 1 Mine
Docket No. PENN 83-226
A.C. No. 36-03425-03536
Docket No. PENN 83-246
A.C. No. 36-03425-03538
Maple Creek No. 2 Mine

DECISION
Appearances:

David T. Bush, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, for U.S. Steel Mining Company, Respondent.

Before:

Judge Merlin

These cases are petitions for the assessment of civil
penalties filed under section llO(a) of the Act by the Secretary of Labor against U. S. Steel Mining Company, Inc. for
alleged violations of the mandatory safety standards.

1510

The hearing was held as scheduled and documentary exhibits and· oral testimony were received from both parties. At
the conclusion of the hearing, I directed the filing of
written briefs simultaneously by both parties within- 21 days
of receipt of the transcript. The briefs have been received
and reviewed.
Stipulations
At the hearing, the parties agreed to the following
stipulations which were accepted (Tr. 7-8):
· ·
1.

U.S. Steel Mining Company, Inc. is the owner and
operator of the Maple Creek No. 1 Mine.

2.

The operator and the mine are subj ec_t to the
jurisdiction of the Federal Mine Safety and
Health Act of 1977.

3.

The presiding administrative law judge has
jurisdicEion over these proceedings.

4.

The inspectors who issued the subject citations
were duly authorized representatives of the
Secretary.

5.

The subject citations were properly served on
the operator.

6.

Copies of the citations may be ad~itted into
evidence for the purpose of establishing their
issuance and not for the truthfulness or relevancy of the statements asserted therein.

7.

Imposition of penalties will not qffect the
operator's ability to continue in business.

8.

The alleged violations were abated in a
fashion.

9.

The operator's prior history is average.

10.

The operator's size is large.

ti~ely

PENN 83-219
Citation No. 2103177
Section 75.701-5 of the m?ndatory standards provides:

1511

The attachment of grounding wires to

a mine track or other ground power conductor will be approved if separate clamps,
suitable for such purpose, are used and
installed to provide a solid connection.
The subject citation describes the condition as follows:
The frame ground for the metallic
switch box supplying power to the car
spotter and return ground to signal lights
at loading ramp in 8 flat 56 room section
were connected to the ground (~aii) with
one clamp. Both were energized.
There is no dispute that the condition described.by the
inspector existed. Nor does it appear from the testimony
that the operator contests that the condition constituted a
violation.
In any event, it is clear that a violation existed and I so find.
The danger created by the violation was that the metallic switch box could become energized. The current was 550
watts which is enough to electrocute an individual. However, for this to happen both wires would have to come out
of the ~lamp but still remain connected together, which was
unlik~ly.
The most likely occurrence would be a break in
the electrical circuit shueting off the equipment. Probability was therefore not high.
On balance, I find the
violation was moderately serious.
The two wires were intentionally put together, but the
Solicitor produced no evidence bearing on whether such acts
properly could be.attributed to the operator under the tests
adopted by the Commission. Southern Ohio Coal Company, 4
FMSHRC 1459 (1982) ; Nacco Mining Company:, 3 FMSHRC 848
(1981). The inspector observed the violation when he was
walking by; on this basis, I find the operator was negligent.
In light of the foregoing and on the basis of the
stipulation relating to the other statutory criteria, a
penalty of $70 is assessed.
PENN 83-246
Citation 2106427
Section 75.701-5 of the mandatory standards provides:
The attachment of grounding wires to a
mine track or other grounded power conductor

1512

will be approved if separate clamps, suitable
for such purpose, are used and installed to
provide a solid connection.
The subject citation describes the condition as follows:
The electrical and the frame ground wires
for the No. 49 water pump located in the 8 Flat
6 Rm. Section MMV 011 were connected to the
same.clamp where it connected to the mine track.
This is the same type of situation as ~as present in
the preceding citation. Two wires from the water pump were
I conclude that a
improperly attached to the same clamp.
violation existed. Given the danger of electrical shock,
the violation was serious.
I also conclude the operator was negligent. The condition existed on a prior shift but the supervisor in charge
elected to have it-fixed on the following shift.
In light of the foregoing and on the basis of the other
statutory criteria, a penalty of $70 is assessed.
Citation 2106428

.

MSHA vacated this citation and the Solicitor's motion
to dismiss the penalty petition with respect to it was
granted from the bench.
PENN 83-143
Citation 2011673
Section 75.326 of the mandatory standards provides:
In any coal mine opened after March 30,
1970, the entries used as intake and return
air courses shall be separated from belt
haulage entries, and each operator of such
mine shall limit the velocity of the air
coursed through belt haulage entries to
the amount necessary to provide an adequate
supply of oxygen in such entries, and to
insure that the air therein shall contain
less than 1.0 volume per centum of methane,
and such air shall not be used to ventilate

1513

active working places. Whenever an autho.rized representative of the Secretary finds,
in the case of any coal mine opened on or
prior to March 30, 1970, which has been
developed with more than two entries, that
the conditions in the entries, other than
belt haulage entries, are such as to permit
adequately the coursing of intake or return
air through such entries, (a) the belt haulage entries shall not be used to ventilate,
unless such entries are necessary to ventilate, active working places, and (b) when
the belt haulage entries are not necessary
to ventilate the active working p~aces, the
operator of such mine shall limit the velocity of the air coursed through the belt haulage entries to the amount necessary to provide an adequate supply of oxygen in such
entries, and to insure that the air therein
shall contain less than 1.0 volume per centum
of methane.
--·

The subject citation describes the condition as follows:
The belt air ventilating the belt conveyor entry of the 13 Butt West 5 face South
(007) was being used to ventilate the active
working places on the 13 Butt West 5 Face
South (007) Sectibn. Approximately 12,500
cfm of air was measured traveling up the
Belt Entry over the Belt feeder and into the
Section. The Section. foreman is Robert Hall,
Supervised by Charles Zabrosky, mine foreman.
The operator admitted the existence of a violation tTr.
Belt air traveling up to the working faces created the
danger that if there was a fire on the belt, smoke-filled
air would travel inby to where the miners were working,
contributing to lung problems and creating difficulties in
escaping to fresh air. Accordingly, I conclude the v;i..olation was serious. I accept the inspector's evaluation that
someone in authority should have known of this conditj,on.
The operator was negligent.
92).

However, the record does not contain sufficient evidence to support the finding of significant and substantial.
The inspector did not know the definition of "significant
and substantial" under governing Commission decisions ('.r;r.
61-62). He stated that the violation was significant and

1514

substantial because contaminated air corning up the belt " *
* * would happen if it was never abated, or never corrected,
·at some time maybe in our lifetime, that this could possibly
happen***" (Tr. 63). It is disturbing that at this late
date, an inspector is ignorant of the proper definition of
the statutory terms he is supposed to enforce. The Solicitor should not call witnesses without preparation.
A penalty of $85 is assessed.
PENN 83-154
Citation 2Dl4207
Section 75.316 of the mandatory standards provides;
A ventilation system and methane and dust
control plan and revisions thereof suitable to
the conditions and the mining system of the
coal min~ and approved by the Secretary shall
be adopted by the operator and set out in
printed form on or before June 28, 1970. The
plan shall show the type and location of mechanical ventilation equipment installed and
operated in the rn,ine, such additional or improved equipment as the Secretary may require,
the quantity and Nelocity of air reaching each
working face, and such other i.nforrnation as
the Secretary may require. Such plan shall
be reviewed by the operator and the Secretary
at least every 6 months.
The subject citation describes the condition as follows:
Only 9 sprays out of a total of 16
water sprays (7 not working) was operating [sic] on the Jay 17 CM Set No. 2085
which was cutting and loading coal in
the No. 5 entry 24 to 25x cut in the 121
Mains West Sec 001. The approved methane
and dust control plan requires water spray
systems to be maintained ·at 75% efficiency.
The operator admitted that seven sprays were not working out of a iequired total of sixteen and that this constituted a violation of its methane and dust control plan (Tr.
125, 126). This condition would increase the amount of

1515

respirable dust in the air and contribute to the existence
of lung disease. Certain sprays that were not working ("C"
on Exhibit M-5) were particularly significant in controlling
dust at the time the violation was cited because of where
the continuous miner was cutting coal {Tr. 138-139). Accordingly, I find the violation was serious.
I accept the
operator's evidence that the sprays had been working at the
beginning of the shift, but I also accept the inspector's
testimony that the fact they were not operating was obvious.
I conclude that negligence was minimal.
There remains for deter:mination whether the violation
was significant and substantial. Dust samples were far
better than required. Under such circumstances, I do not
believe there was a reasonable likelihood that the increased
dust created by the inoperable sprays would result in a
reasonably serious injury or illness. I recognize that I
have concluded the violation was serious but a violation can
have a measure of gravity without meeting the cri~eria for
significant and substantial.
A penalty of $65 is assessed.

l?ENN 83-223

Citation 2103294
Section 75.1105 of the mandatory standards provides:
Underground transformer stations, battery
charging stations, substations, compressor stations, shops, and permanent pumps shall be housed
in fireproof structures or a~eas. Air currents
used to ventilate structures or areas enclosing
electrical installations shall be coursed directly into the return. Other underground structures installed in a coal mine as the Secretary
may prescribe shall be of fireproof construction.
The subject citation describes the condition as follows:
The Section belt load center #214 located
in the 110 crosscut in the 133 Butt West Section was not properly vented to the return in
that the air movement over the load center was
toward the intake fresh air.

1516

The inspector testified that he sprinkled rock dust in
the air over the power center and that the dust flowed over
the top of the power center up towards the section instead
of going out into the return air course (Tr. 145, 146). I
accept the inspector's testimony and based upon it conclude
that there was a violation of the cited standard.
I also
accept the inspector's testimony that if there was·a fire,
smoke would go up to the section where people were working
(Tr. 147). I find the violation was serious because the
smoke could impede escape and is dangerous to health.
Finally, I accept the inspector's conclusion that because he
did not know how long the violation existed, negligence was
low (Tr. 149).
The record does not contain sufficient evidence to
support a finding of significant and substantial. This
inspector also did not appear to know what the definition of
"significant and substantial" is under Commission decisions.
He stated that the violation was "reasonably likely" because
"there's always a possibility [of fire] in any piece of
electrical equipmen~" (Tr. 150). The fact that something is
always possible does not create a reasonable likelihood~
Moreover, the inspector did not analyze or explain what was
reasonably likely in the manner required by the Commission
decisions.
It is disturbing to have those charged with the
enforcement of the Act show such confusion about elementary
terms and fundamental concepts. The Solicitor should not
call such witnesses and attempt to rely on their testimony
unless he prepares them sufficiently.
A penalty of $126 is assessed.
Citation 2103296
Section 75.503 of the mandatory standards provides:
The operator of each coal mine shall maintain
in permissible condition all electric face equipment required by §§ 75.500, 75.501, 75.504 to be
permissible which is taken into or used inby the
last open crosscut of any such mine.
The subject citation describes the condition as follows:
The S&S battery operated scoop was not maintained in permissiable [sic] condition and being
operated in the 133 Butt West Section. All battery cover lids were loose and not fastened down
properly.

1517

The inspector testified that the lid covers for the
batteries of the scoop and for the battery boxes themselves
had corresponding tongues with holes in them on the back and
front (Tr. 177). The tongues came on the covers and boxes
from the manufacturer. The inspector believed that the
standard required that when the covers slid on, the operator
should insert some sort of locking device like a bolt
through the hole fastening the lid to the box.
The Solicitor argued that section 75.503 which requires
that equipment be maintained in permissible condition must
be read in conjunction with section 75.2 and 18.44(_c).
Section 75.2(i) provides that permissible as applied to
electrical face equipment means all electrically operated
equipment taken into or used by inby the last open crosscut
of an entry or room of any coal mine the electrical parts of
which including, but not limited to, associated electrical
equipment, components and accessories, are designed, constructed, and installed in accordance with the specifications of the Secretary, to assure that such equipment will
not cause a mine explosion or a mine fire.
Section 18.44(~}
of Part 18, 30 C.F.R. 18.44(c), dealing with manufacturers'
specifications for approved electrically operated equipment,
provides that battery-box covers shall be provided with a
means for securing them in closed position.
Assuming that the Solicitor's position regarding section 18.44(c) is correct, I still cannot find a violation.
The i~spector described ho~ a 2" lip went all around the
cover so that the cover slid down over the battery box like
a lid on a can or jar (Tr. 194). The inspector agreed that
because of the lip, the cover would have to jump up 2 inches
before it would slide (Tr. 194). The cover weighs 50 _to 100
pounds (Tr. 210-211). In addition, there were tongues on
the back of each battery box which stuck out through holes
in the cover when the cover was put on (Tr. 201-204). The
inspector agreed here too, that this device would secure the
cover if the scoop were moving forward (Tr. 206-207).
Finally, the battery covers overlapped and interlocked in
the center (Tr. 201). I conclude that each of the foregoing
devices constituted a means for securing the battery box
covers in a closed position within the meaning of section
18.44(c). As section 18.44(c) presently stands, it is
sufficiently general to encompass the circumstances presented here.
I will not read into the mandatory standards a
specificity which they plainly do not have.
If the Secretary wants the battery boxes secured in a particular way,
it would be a simple enough matter for him to change the
regulations to so provide. Judge Melick reached the same
conclusion in a case involving the same operator and the
Solicitor did not appeal. U.S. Steel Mining Co., FMSHRC
Docket No. PENN 82-305, Slip Op. (January 30, 1984).

1518

In light of the foregoing, Citation 2103296 is vacated.
Citation 2103297
A violation of section 75.503 is alleged here also.
The only difference is that in this case, the inspector
testified that the locks (or tongues) were actually broken
off so there was no means of fastening the covers down (Tr.
197). However, the inspector was unable to specify which
fasteners were broken, stating that at least four lugs were
broken (1 mor~ or less on both endsl (~r. 197) • Clearly,
the inspector did not remember which lugs or tongues were
missing.
This evidence is too vague to support the citation
of a violation. In any event, the missing lugs or tongues
appear to relate only to the one device which would require
a bolt to be put through the tongues of the battery box and
the cover.
In this case there is nothing to indicate that
the securing devices described in Citation 2103296 were not
present here also.
Accordingly, Citation 2103297 is Vacated.
Citation 2103300, Citation 2104061, Citation 2104063,
Citation 2104064
The parties agreed that the decision in Citation
2103296 would govern the results in these citations.
Accordingly, these ci€ations are vacated.
PENN 83-226
Citation 2104311, Citation 2105301
In an off-the-record conference, the Solicitor advised
that MSHA had agreed to vacate these citations and I approved a withdrawal of the penalty petition with resl?ect to
them.
Order
In light of the foregoing, it is Ordered that within 30
days from the date of this decision, the operator pay $416
in penalties apportioned as follows:
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.

2011673
2014207
2106427
2103177
2103294

1519

$ 85
65
70
70
126

It is further Ordered that Citation Nos. 2103296,
2103297, 2103300, 2104061, 2104063, 2104064, 2104311,
2105301, and 2106428 be Vacated.

:

Law Judge
Distribution:
David T. Bush, Esq., Office of the Solicitor, U.S. Department of Labor, 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104
(Certified Mail)
Louise Q. Symons, Esq., United States Steel Mining Company,
600 Grant Street, Pittsburgh, PA 15230
(Certified Mail)

/nw

1520

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

JOSEPH J. CEREMUGA,
Complainant

JUN 13 1984

DISCRIMINATION PROCEEDING
Docket No. WEST 83-114-DM

v.
MSHA Case No. MD 83-25
COTTER CORPORATION,
Schwartzwalder Mine

~espondent

ORDER OF DISMISSAL
Before:

Judge Carlson

Joseph J. Ceremuga, the pro se complainant herein, has moved
for the dismissal of his complain~in this discrimination case on
grounds that he does not want to leave his present job in Arizona
to attend the hearing scheduled in Denver, Colorado for June 27,
1984. The mine at which the complaint arose is near Denver,
Colorado, and the mine operator has previously made clear its
wish that the hearing be held near the mine site. The hearing
.was previously continued from March 21, 1984 at complainant's request.
Since it is now clear that complainant wishes to abandon his
claim, the motion will be granted.
Accordingly, the miner's complaint is dismissed with prejudice.
SO ORDERED.

John A. Carlson
Administrative Law Judge

Distribution:
Mr. Joseph J. Ceremuga, P.O. Box 23701, Tucson, Arizona 85734

(Certified Mail)
Barry D. Lindgren 7 Esq., Cotter Corporation, P.O. Box 539, Denver,
Colorado 80201 (Certified Mail)

/ot

1521

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE ..00
DENVER, COLORADO 80204

SECRETARY OF LABOR,
MINE SAFE'l'Y AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

v.
MAGMA COPPER COMPANY,
Respondent

JUM 141984

CIVIL PENALTY PROCEEDING

.
.
.
.

Docket No. WEST 83-17-M
A.C. No. 02-00152-05501
Superior Mine

DECISION
Appearances:

Marshall P. Salzman, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco,
California,
for Petit i"oner:
N. Douglas Grimwood, Esq., Twitty, Sievwright &
Mills, Phoenix, Arizona,
for Respondent.

Before:

Judge Vail

STATEMENT OF THE CASE
Pursuant to provisions of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 802 et seg. (the "Act"), the petitioner
seeks an order assessing a civil penalty against the respondent
for an alleged violation of 30 C.F.R. § 57.19-128. 1/
An evidentiary hearing was held in Phoenix, Arizona, on
March 6, 1984. Both parties filed post-hearing briefs. Based on
the evidence presented at the hearing and considering the
contentions of the parties, I make the following decision. To
the extent that the contentions of the parties are not incorporated in this decision, they are rejected.

1/ Mandatory. Ropes shall not be used for hoisting when they
have:
(a) More than six broken wires in any lay.
(b) Crown wires worn to less than 65 percent of the original
diameter.
(c) A marked amount of corrosion or distortion.
(d) A combination of similar factors individually less severe
than those above but which in aggregate might create an
unsafe condition.

1522

ISSUES
The principal issues presented in t~ese proceedings are: Cl)
whether respondent has violated the provisions of the Act and
implementing regulations as alleged in the proposal for assessment of civil penalties filed herein; and, if so, (2) the
appropriate civil penalty that should be assessed against the
respondent for the alleged violations upon the criteria as set
forth in section llOCi) of-the Act. Additional issues raised by
the parties are. identified and disposed of in the course of this
decision.
In determining the amount of a civil penalty assessment,
section llOCi) of the Act requires consideration of the following
criteria: Cl) the operator's history of previous violations, (2)
the appropriateness of such penalty to the size of the business
of the operator, (3) whether the operator was negligent, (4) the
effect on the operator's ability to continue in business, (5) the
gravity of the violation, and (6) the demonstrated good faith of
the operator in attempting to achieve rapid compliance after
notification of the violation.
STIPULATIONS
This case was heard in conjunction with two other cases.
the outset of the hearing, the parties stipulated to the
following:

At

1. At all times pertinent to these proceedings, respondent
was the owner and operator of an underground copper mine and mill
near Superior, Arizona, known as the Superior Division, Magma
Copper Company.
2. Respondent is subject to the provisions of the Federal
Mine Safety and Health Act of 1977 in its operation of the
subject mine and mill, and I have jurisdiction over the parties.
3. Respondent is considered a large mining company with a
moderate history of past violations. It was stipulated by the
parties that any penalty imposed as a result of this citation
should neither be increased or decreased because of this history.
4. Payment of the proposed penalty in this case would not
affect the respondent's ability to remain in business.
5. The citation involved in this matter was issued on the
date indicated thereon and was abated promptly and in good faith.
6. Whether a cited violation is properly designated as a
significant and substantial violation is per se irrelevant to a

1523

determination of the appropriate penalty to be assessed. The
penalty hereinafter assessed is based on the criteria in section
llOCi> of the Act.
FINDINGS OF FACT
1. On June 10, 1982, MSHA inspector Juaguyn G. Sepulvada
issued a 104(d)Cl> type Citation No. 383670 alleging a violation
of 30 C.F.R. § 57.19-128(d) in which it was stated as follows:
"The counter balance (weight) wire rope of the No. 9 shaft manhoist had within ·a distance of 100 ft 64 broken and some distorted wires in different lays.
Inspector's reports revealed and
employees stated that this condition had been reported on several
occasions. Efforts were not made to correct the condition by
changing of the rope until 6-8-82 before the inspection." (Exh.
P-16).
2. In June 1979, during a regular inspection of the
counterweight cable, respondent's cable inspectors reported
observing steel slivers throughout its length. Further inspection convinced Joseph L. Clark, maintenance supervisor, that
these were not steel slivers on the wire rope, but were fibers
from the center core working through the cable strands. Measurements of the cable diameter persuaded Clark that there was no
great loss of fiber. CExh. R-6 and Tr. at 132, 133).
3. A semi-annual electromagnetic test of the entire
counterweight cable in February 1982 revealed several anomalies
which would indicate broken wires in the following distances
above the conveyance; 882 ft., 140 ft., 1475 ft., 1520 ft., 2380
ft., and 2608 ft. Other variations in the test indicated the
normal rope pattern with slight lay irregularities CExh. R-7 and
Tr. at 138). A visual inspection of the above locations was
performed and accord~ng to Clark, no problems were found (Tr. at
140).
4. Early in June 1982, Scott asked Doug Dutton, mechanical
engineer, to inspect the counterweight cable to evaluate its
condition. On June 3, 1982, Dutton reported the results of his
test verbally and later, on June 14, 1982, furnished a written
report (Tr. at 140 and Exh. R-8).
5. On June 8, 1982, Scott requested permission from Frank
Florez, general manager, to replace the counterweight cable on
July 4, 1982. Florez suggested the rope change be done on June
19, 1982. Scott informed the employees in the "shop" and the
underground general maintenance foreman that the rope change
would occur on June 19, 1982 (Tr. at 144).
6. On June 9, 1982, Scott learned that a citation would be
issued on June 10, 1982 against the counterweight cable. A
meeting was held the following day between Sepulvada and

1524

respondent's employees including Joe Vindials who told Sepulvada
that the rope was to be replaced June 19, 1982. Sepulvada's MSHA
subdistrict manager requested that he permit the respondent to
wait until June 19, 1982, to replace the rope. Sepulvada agreed
to the requested extension of time for abatement of this
violation (Tr. at 101, 102).
7. Approximately a month after the cable was removed from
the shaft and placed on a storage reel, respondent cut off a 12
foot piece considered to be the "worst section" and sent it .to
Bethlehem Wire Rope Company for testing. The test results revealed that this section of wire rope had a breaking strength of
355,000 pounds. The catalog breaking strength for this particular type wire rope is 358,000 pounds (Tr. at 150 and Exh. R-9).
8. In February 1983, MSHA representatives, including Roy L.
Jameson, examined the wire rope involved in this citation at
respondent's mine. They also removed a section of the wire rope
for further inspection. Jameson, at that time, was a health and
safety specialist with MSHA's Denver Technical Support Center.
After conducting an initial examination at the mine and a later
analysis at the laboratory facility in Denver, Colorado, Jameson
concluded that the continued use of this wire rope had created an
unsafe condition (Tr. at 43). This conclusion was based upon the
number of fractured wires, loss of wire rope from wear, that it
had been "peened" 2/, had a "popped" core, and extended lay
length. Jameson found 12 broken wires in one lay length of the
wire rope (Tr. at 30, Exh. P-2). He also found the core sticking
out of the wires and exceedingly-dry (Tr. at 31 and Exh. P-3).
9. At the hearing and £allowing a visual inspection of
petitioner's exhibit P-2, Robert Donner, wire rope and sales
engineer for Bethlehem Steel Wire Rope Division, counted six
broken wires in one strand of Exhibit P-2 (Tr. at 117-118). He
also observed some "nicks" and "peening" but was of the opinion
that the wire rope could have been used for another three or four
weeks.
DISCUSSION
Counsel for respondent argues in his post-hearing brief that
§ 57.19-128Cd}, as applied in this case is too vague to convey

the standard of conduct required of the mine operator. However,
he does concede that subsections Ca}, Cb}, and Cc} of the cited

±_I

"Peening" is when the metal in the wire, due to pounding of
metal against metal, causes an extrusion to the outer edge of the
wire, or flattens out.

1525

standard does specifically state objective criteria by which an
operator can guide his actions to avoid MSHA sanctions (Resp's
brief at p. 15).
If I were to have found from the facts in this case that
there was not a violation of one or more of the first three
subsections of 57.19-128, and the petitioner was required to rely
on subsection (d) to support a violation, I would have to agree
with the respondent. In FMC Corporation, Docket No. WEST
80-477-M,
FMSHRC
(May 4, 1984)(ALJ) involving a
similar question, I dismissed a citation for the reason that
subsection (d) of 57.19-128 was too vague. However, I find that
in the case at issue here a violation of subsection (a) of
57.19-128 was established as the most credible evidence shows
there were more than six broken wires in one lay of the cited
wire rope on the counterweight. Jameson testified that he
counted twelve. Respondent's expert witness, Robert Donner,
testified that he could see six broken wires of the wire rope
when he examined it visually on the witness stand (Finding Nos. 8
and Tr. at 117-118).
Respondent argued that some of the wires identified by
Jameson were identified as "cracked" and should not be considered
broken wires as required under the standard. However, Jameson
stated that a "crack" must be considered a break within the
meaning of the standard for the danger is there has been a loss
of a part or percentage of strength in the wire from each crack
(Tr. 78). Also, Donner testified that a crack in a wire of a lay
of wire rope would constitute a broken wire if it were
"significant". He defined "significant" as that which could be
seen with the "naked eye" (Tr. 126-127).
Based upon the above evidence, which is not refuted, I find
that the violation of 57.19-128(a) occurred.
In addition to the
broken wires, there was evidence of wear to the rope, peening,
and extended lay length as testified to by petitioner's witnesses.
Respondent's witnesses contended that these latter factors were
not significant. However, the historical facts refute this
contention as these same employees had continued to closely examine and observe this wire rope for a period of time prior to
the date the citation was issued. The evidence shows that the
wire rope had exhibited a deteriorating condition to the extent
that it was scheduled for removal and replacement eight days
prior to the date the citation was issued.
As to the above, respondent argues that it was complying
with 57.19-128 in a manner consistent with conduct of a reasonable and prudent mine operator familiar with the practices in the
industry (Resp's brief at p. 12).
I find that this argument fails in light of the requirement
of the standard's wording that states in part as follows: "Ropes
shall not be used for hoisting when they have: Ca) More than six

1526

broken wires in any lay." (Emphasis added).
It is clear that
replacement of the wire rope is required when such a condition is
found. The ~vidence in this case is not clear as to whether an
imminent danger existed from continuing to use this particular
wire rope.
Petitioner in his brief states that it is not his
contention that failure was imminent or immediate (Pet's brief at
p. 4). Also, MSHA extended the abatement period for several days
to allow the wire rope to be replaced on the date originally
scheduled by respondent.
I find the question of imminency goes
to whether a significant and substantial violation occurred in
this violation. Based upon the above evidence, and concession by
the petitioner, 1 find it did not.
PENALTY
Petitioner suggests in his petition proposing ·a penalty that
the amount should be $210.00. He argues that the violation was
significant and substantial; that respondent was aware of the
condition for several months showing a high degree of negligence.
I disagree that the evidence shows a high degree of
negligence. MSHA's requirement at the time of this violation
under 30 C.F.R. § 57.19-126 required that operators examine hoist
ropes over their entire length at least every month. The
respondent had established a practice of having the rope crew
inspect the full operating length once per week (Tr. at 135). As
to the rope cited here, the evidence shows that respondent was
watching the rope carefully and had made a determination to replace it prior to being cited. During the time leading up to
this decision, several outside experts were called in to examine
the rope and give their opinions as to its continued use.
I do
not find this history to reveal a high degree of negligence but
rather slight negligence in delaying the replacement of the wire
rope.
As to gravity, the facts show that the counterweight
attached to the rope cited here travels in a vertical steel tube
which runs .from a point 60 feet above the collar of the shaft to
a point 15 feet above the bottom. The counterweight moves at
1500 feet per minute inside the tube. There is a 1/2 inch
clearance between the weight and the tube with the force of air
passing over the tapered, aerodynamically designed end keeping it
centered in the tube.
The 3/8 inch thick steel tube housing the counterweight is
in a separate compartment in the shaft from that which houses the
hoists used to lift men and materials. Should the rope break,
the counterweight would fall to the bottom of the shaft.
It is
unlikely that it would crash or break through the tube housing it.
Also, it is unlikely that anyone would ever be at the bottom of
the tube. Also, the counterweight is used to reduce the energy
requirements of lifting the load on the hoist and is attached to

1527

a double drum system. The 2000 horse-power motor which drives
the hoist is capable of lifting full loads from the bottom of the
shaft without assistance of the counterweight should it break
away. The evidence also shows that the operator of the hoist
would detect any loss of the counterweight should the rope fail.
From the design of the counterweight and its compartment, I
do not believe there is a great likelihood of an injury resulting
from the wire rope breaking. Therefore, the gravity of this
violation is small.
I find from ·the above that a penalty of $100.00 is reasonable for this violation.
CONCLUSION OF LAW
1. The respondent is subject to the jurisdiction of the Act.
The undersigned Judge has jurisdiction over the parties and
subject matter of these proceedings.
2. Respondent violated 30 C.F.R. § 57.19-128(a} of the Act
as supported by the facts presented in this case.
3.

A reasonable

p~nalty

is $100.00.
ORDER

Citation No. 383670 is AFFIRMED and respondent is ordered to
pay a civil penalty of $100.00 within 40 days of the date of this
decision.
"--:?'"~

t/A14d?~
Virg~.
Vail
Administrative Law Judge

Distribution:
Marshall P. Salzman, Esq., Office of the Solicitor, Department of
Labor, 11071 Federal Building, Box 36017, 450 Golden Gate Avenue
San Francisco, California 94102
(Certified Mail}
N. Douglas Grimwood, Esq., Twitty, Sievwright & Mills
2702 N. Third Street, Suite 4007, Phoenix, Arizona 85004
(Certified Mail}

/blc

1528

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE~
DENVER, COLORADO 80204

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

MEDIC!NE BOW COAL COMPANY,
Respondent

:
:

.
.
.
...
.
.

JUN 14 1984

CIVIL PENALTY PROCEEDING
Docket No. WEST 81-163
A.C. No. 48-00900-03018
Medicine Bow Mine

DECISION
Appearances:

James H. Barkley, Esq., Office ·of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner:
Brent L. Motchan, Esq., Medicine Bow Coal Company,
St. Louis, Missouri,
for Respondent.

Before:

Judge Carlson

This proceeding arose out of an inspection of respondent's
surface coal mine on August 12, 1980. The case was transferred
to the undersigned judge on June 8, 1983, and was heard in
Denver, Colorado on February 15, 1984 under provisions of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
seq., (the "Act"). The parties asked for leave to file
post-hearing briefs, but ultimately agreed to waive such
submissions. At issue here is whether the respondent, Medicine
Bow Coal Company (Medicine Bow), committed three violations of
the mandatory safety standard published at 30 C.F.R. § 77.1104.
The standard relates to accumulations of combustible materials. 1/ The Secretary contends that two of the three alleged

l/

30 C.F.R. § 77.1104 provides:
Combustible materials, grease, lubricants, paints,
or flammable liquids shall not be allowed to accumulate where they can create a fire hazard.

1529

violations were "significant and substantial" under the Act. He
seeks civil penalties of $150.00 for one violation, and $160.00
each for the remaining two. ~/
REVIEW AND DISCUSSION OF
THE EVIDENCE
The evidence shows that Mine Safety and Health Inspector
John E. Thompson ·visited Medicine Bow's surface coal mine at
Hanna, Wyoming on August 12, 1980. In the course of this
inspection he examined three pieces of heavy mobile equipment
which are the subject of the three citations at issue in this
case.
According to the inspector, the government's sole witness, a
Caterpillar off-highway dump truck, a Clark front-end loader, and
a skidder, had "excessive accumulations" of "combustible
materials" on and around the engines, belly pans, transmissions,
and rear-end housings. The materials, he testified, were
composed chiefly of oil, grease, and related lubricants, along
with coal dust and some dirt or soil. His testimony indicated
that the composition of the accumulations vari~d from place to
place (e.g. engine oils on engine parts, transmission lubricants
on transmissions) but all were mixed with coal dusts. The depths
of the deposits, he said, varied from 1/2 to 3 inches. These
figures were the product of visual estimates onlyi he took no
measurements. He did not touch or handle the accumulations, nor
did he obtain a laboratory analysis. His determination, he
acknowledged, was based upon the appearance of the accumulations
and their locations.
The inspector maintained that the accumulations constituted
a fire hazard because they would burn if ignited. In his belief,
ignition could be furnished by exhaust heat, friction heat
(brakes for example), malfunctioning electrical components, or
engine heat. He further believed that if a fire did occur, from
whatever source, the accumulations would serve to fuel and
intensify it.'
Inspector Thompson was of the further view that heavy
equipment fires expose operators and fire fighters to possible
injuries in the f~m of burns, fractures, and smoke inhalation.

2/ The case originally included five citations. At the outset
of the hearing the parties announced that two of these, numbers
828415 and 828439, had been settled and would be disposed of by
separate written agreement. The citations tried were numbers
828440, 828442, and 828443. The settlement agreement was not
received until June 4, 1984. The separate approval of the
settlement agreement is issued contemporaneously with this
decision.

1530

Through the inspector the Secretary introduced computer
print-outs summarizing all reported machine or equipment fires in
surface coal mines for the years 1978 through 1983. Prepared by
the Mine Safety and Health Administration's Health and Safety
Analysis Center, these listings show that such fires ranged in
number from a high of 20 in 1981, to a low of 13 in 1978·and 1983.
The reports contain a brief description of the cause of each fire.
The most frequent single cause was ruptured hydraulic lines. The
print-outs (petitioner's exhibit 1) were admitted as demonstrating that fires in surface mining equipment are not uncommon.
Donald E. Burkhart, Jr., Medicine Bow's safety director at
the time of inspection, testified for the respondent. Burkhart,
who accompanied Inspector Thompson on the inspection, acknowledged that he saw accumulations of lubricating oils and fluids,
but insisted that they were only 1/4 to 1/2 inches in depth.
Mr. Burkhart denied that the accumulations constituted a
fire hazard. Essentially, his opinion was that fire hazards do
not exist without the presence of an ignition source. Measurements of the heat generated by the three pieces of equipment in
question, he testified, showed that none generated temperatures
sufficient to cause autoignition of the accumulations. The
Caterpillar truck, for example, showed temperatures ranging from
350 Farenheit on the belly pan to 3270 on the turbocharger (the
hottest engine component on most diesels). On the Clark
front-end loader, the turbocharger gave a reading on an optical
thermometer of 4300. The hottest point on the skidder was the
exhaust manifold at 3180.
Mr. Burkhart conceded that equipment fires do occur on
mining equipment, but that they nearly always result from broken
hydraulic or fuel lines where the fuel or hydraulic fluid is
ignited by the heat of the exhaust system.
Such a fire, the
witness admitted, could then ignite oil or grease accumulations
which would intensify the fire hazard "to a minor degree."
Mr. Carl J. Dahn, a consulting engineer, also testified for
Medicine Bow. This witness heads a research firm which, he
testified, had done extensive studies in engineering hazard
analysis with respect to mechanical, chemical, electrical,
hydraulic, and pneumatic systems. His work included analysis
dealing with equipment fire and explosion hazards, including
those involving diesel engines.

1531

According to Mr. Dahn, the autoignition temperature for the
oil and grease found around diesel engines ranges from aooo to
1200° Fahrenheit. ~/ Coal in grease tends to increase
autoignition temperatures. The witness indicated that the
turbocharger is ordinarily the hottest engine part with
temperatures ranging 3000 and 4000. Mr. Dahn agreed that the
accumulations in this case could ignite if exposed to high enough
temperatures, but insisted that the facts in the present case
showed no likely sources for such ignition. He acknowledged that
the most common source of fires in heavy equipment are ruptured
fuel or hydraulic ·lines. While not ignition sources themselves,
sprayed fuel or hydraulic fluids may be ignited by exhaust stacks.
Electrical shorts, frictional heating, or outside sources such as
cigarettes are possible but less likely sources, according to Mr.
Dahn.
Repeatedly throughout his testimony Mr. Dahn expressed the
opinion that the grease and coal accumulations in this case including the 1/2 to 3 inch deposits described by the inspector could not constitute a fire hazard. Behind this reasoning was
his conviction that the extent to which the accumulations would
intensify or fuel a fire would be so insignificant as to make no
real difference. At various times he described the potential
intensification as "slight," as "small," and as "secondary." He
also stressed that since the Caterpillar and Clark vehicles
carried coal, the residues of coal dust in their beds would be
significantly more dangerous than the comparative small amount of
grease, oil and coal dust on the locations pinpointed by the
inspector.
In essence, according to Mr. Dahn, even though the
accumulations could burn under certain circumstances their hazard
potential, compared to primary fire dangers such as ignited fuel
or hydraulic fluids, was de minimis.
In deciding whether violation occurred, we should first
examine the words of the standard. The inspector, in his
testimony, repeatedly referred to "excessive" accumulations of
combustible materials, although the standard uses no such term.
The inspector was doubtless correct, however, in implying that
violations cannot occur with only trivial (as opposed to·
excessive) accumulations. Even with the best cleaning program,
traces ·of lubricants will l.ikely be present on heavy equipment.

ll

The autoignition point is the lowest temperature at which a
material will burn in a closed vessel. Under other than
laboratory conditions, the temperature for ignitions would likely
be higher.

1532

I find that the accumulations on each piece of equipment
were essentially as the inspector described them: from 1/2 inch
to 3 inches in depth. Accumulations of that magnitude are large
enough to have significance under the standard.
I also find that
the various areas of excessive accumulations described by the
inspector were potential targets for either fuel or hydraulic
fluids, or both, sprayed from ruptured, pressurized lines.
Respondent suggests that the Secretary's evidence was
insufficient to establish violation because the mixed components
of the accumulations were not determined with precision through a
laboratory analysis. In support of this claim, counsel cited a
case decided by a judge of this Commission where charges were
dismissed, in part at least, because of the failure.to obtain a
laboratory analysis of an allegedly "combustible" solvent. Magma
Copper Company, 1 FMSHRC 837 (1979). A question in the case,
however, was the propriety of relying on three-year-old label
information from a source other than the containers at the
worksite.
The evidence in the present case convinces me that the
substances in question were of the sort proscribed by the
standard. Greases and lubricants are named specifically in the
standard, and no one doubts that coal dust qualifies as a
"combustible material." I cannot conclude that the admitted fact
that some dirt or soil was contained in the mix requires the
Secretary to obtain a laboratory analysis when significant
amounts of proscribed substances are clearly present. Both
witnesses for Medicine Bow conceded that the accumulations would
burn if subjected to a fire involving motor fuel or hydraulic
fluid.
Medicine Bow also relies upon another judge's decision,
Pittsburg and Midway Coal Mining Company, 2 FMSHRC 3049 (1980),
in which a lubricant accumulation charge, under the same standard
as that cited in the present case, was dismissed. The case is
inapposite. There the maximum accumulation was a mere 1/8 of an
inch thick, and the chief issue was the "sufficiency" of the
accumulation. Moreover, unlike the present case, there were no
credible proofs that fuel or hydraulic line breaks are a major
cause of equipment fires.
Mr. Dahn suggests that neither a "bad safety practice" nor
a "significant fire hazard" results from the presence of up to
three inches of grease and coal dust accumulation. This is so,
he claims, because the extent to which such accumulations would
add to the severity a fuel or hydraulic fluid fire would be "very
small" (Tr. 230-239).

1533

On this issue I must agree with the Secretary. Mr. Dahn's
argument goes· to the gravity of the violation, not its existence.
Because the Act is remedial, the mandatory standards promulgated
thereunder must be construed in consonance with their underlying
purpose - the protection of miners from injury and illness.
Nothing in the Act suggests that only major hazards must be
suppressed. The evidence here indicates that the accumulations
present could sustain or intensify fuel or hydraulic liquid
fires. Any fire on a piece of heavy equipment poses some degree
of danger to the equipment operator or persons performing rescue
or firefighting operations. Additional fuel sources that enhance
the intensity or duration of a fire, even marginally, therefore
fall within the ambit of the standard. In this connection the
word "create," as used in the phrase "create a fire hazard" in
the standard, cannot be construed in the narrow or hypertechnical
sense of a first cause. Any substance which may reasonably be
expected to enlarge, propagate or intensify a fire, "creates" a
greater fire hazard. ~/ I therefore conclude that Medicine Bow
violated the standard-as to all three machines.

4/ In furtherance of the de minimis argument, Mr. Dahn also
pointed out that the truck involved in one citation carried loads
of coal and that even when empty the bed inevitably contained
coal dust residues. The coal in a full load, or the dust in an
empty bed, he contended, so dwarfed the potential of grease and
coal dust accumulations on engines or undercarriages as secondary
fuel sources as to render the latter inconsequential. I reject
this reasoning. The purpose of the standard is to minimize fire
hazards to the maximum practical extent. The hazard from
flammables or combustibles carried as a part of the normal load
of a vehicle is essentially unavoidable. Such hazards merely
underscore the obvious proposition that some enterprises are
inherently more dangerous than others. The standard with which
we deal in this present case is aimed at th.e type of fire hazard
which is avoidable. Lubricant accumulations, as the evidence
shows, may be removed by routine equipment cleaning procedures.
They pose an unnecessary risk. The attempt to introduce a
comparative hazard principle, carried to its logical extreme,
would produce unacceptably awkward distinctions. It would mean,
for example, that water trucks whose loads would rather clearly
not burn, would require an engine cleaning program. Fuel trucks,
on the other hand, could presumably accumulate grease and oil
deposits on the engine and elsewhere indefinitely because of the
volatile character of their loads. The standard does not contemplate such an anomalous result. Only if we accept the premise
(which this decision does not) that lubricant accumulations are
permissible without limit, could respondent's reasoning be
accepted.

1534

Although the evidence supports a finding of violations, it
does not sustain a finding that the violations were "significant
and substantial" under section 104(d)(l) of the Act. Citations
828442 (the Clark loader) and 828443 (the skidder) were alleged
by the Secretary to be "significant and substantial" while 828440
Cthe Caterpillar truck) was not. At the hearing, counsel for the
Secretary explained that all three should have been given that
classification but, through oversight, were not. (The inspector
simply failed to place an "X" in the box on the citation form
designated "S and S.") This judge then stated that no motion for
amendment would be entertained since any such oversight should
have come to the attention of the Secretary during the extensive
pre-hearing procedures in this case.
The Commission in Cement Division, National.Gypsum Co., 3
FMSHRC 822 (1981), articulated the test to be used in determining
whether a violation, in the words of the statute " ••• could significantly and substantially contribute to the cause and effect
of ••• a mine safety or health hazard." The violation must be
one where there exists "a reasonable liklihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature." In the present case, essentially for the
reasons urged by Medicine Bow, I must conclude that the violations do not rise to the "significant and substantial" level.
Much of the government's case was premised on the notion, rejected in this decision, that the accumulations could be ignited
directly by such heat sources as the vehicle engines, turbochargers, or exhaust systems. The evidence demonstrates that the
accumulations would burn only if ignited by a fire originating
from broken fuel or hydraulic lines. Such fires would likely be
quite serious in their own right, made only somewhat more so by
the presence of lubricant and coal dust deposits. I agree with
Medicine Bow that the additional hazard presented by the burning
of such deposits would add in a minor way to a serious fire
originating from unrelated causes. Thus, the violations
established here cannot be classified as serious and substantial.
We now turn to the matter of penalty. Section llOCi) of the
Act requires the Commission, in penalty assessments, to consider
the size of the operator's business, its negligence, its ability
to continue in business, the gravity of the violation, and the
operator's good faith in seeking rapid compliance. Most of the
evidence concerning tpese penalty factors in this case came into
the record through stipulations in the settlement agreement
entered into with respect to citations 828415 and 828439. The
stipulations show that Medicine Bow is a large operator and that
in the two years prior to the inspections here it was cited 79
times in 33 days of inspection. The record shows that imposition

1535

of civil penalties of the magnitude proposed by the Secretary
would not impair its ability to continue in business, and that it
abated the present violations expeditiously.
Upon the evidence, I find that the gravity of the violations
was low and that the operator's negligence was moderate. The
Secretary seeks a civil penalty of $150.00 for the violation
involving the Caterpillar truck and $160.00 each for the
violations involving the Clark loader and the skidder. Because
of the low gravity of the violations, I find these proposals
excessive. On balance, I conclude that $35.00 is an appropriate
penalty for each violation.
CONCLUSIONS OF LAW
Based upon the entire record herein, and in accordance with
the findings of fact embodied in the narrative portions of this
decision, the following conclusions of law are made:
(1) This Commission has the jurisdiction necessary to decide
this case.
(2) The respondent, Medicine Bow, violated the mandatory
safety standard published at 30 C.F.R. § 77.1104 as alleged in
citations 828440, 828442, and 828443.
(3) The violations were not "significant and substantial"
within the meaning of section 104(d)(l) of the Act.
(4) The appropriate civil penalty for each of the three
violations is $35.00.
ORDER
Accordingly, all citations are ORDERED affirmed, and the
respondent Medicine ~ow shall pay to the Secretary of Labor civil
penalties totaling $105.00 within 40 days of the date of this
decision.

~~

~~~~-~Carlson
Administrative Law Judge
Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street
Denver, Colorado 80294 (Certified Mail)
Brent L~ Motchan, Esq., Medicine Bow Coal Company, 500 North
Broadway, St. Louis, Missouri 63102 (Certified Mail)
/blc

1536

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSH~),
Petitioner

v.

JUN 14 1984

CIVIL PENALTY PROCEEDING
Docket No. WEST 81-163
A.C. No. 48-00900-03018
Medicine Bow Mine

MEDICINE BOW COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
u. S. Department of Labor, Denver, Colorado,
for Petitioner;
Brent L. Motchan, Esq., Medicine Bow Coal Company,
St. Louis, Missouri,
for Respondent.

Before:

Judge Carlson

The parties have submitted a motion styled "Stipulation,
Motion to Withdraw Notice of Contest, and Order Payment." The
motion would dispose of two of the five citations comprising
Docket No. WEST 81-163. It relates to citations 828415 and
828439.
{The remaining citations, 828440, 828442 and 828443,
are dealt with in a full decision following hearing on the
merits, issued contemporaneously_ with this present settlement.)
The parties, in the present motion, ask that respondent be
granted leave to pay the full penalties originally proposed for
the two citations in question, and to withdraw its notices of
contest. Under section llO{k) of the Federal Mine Safety and
Health Act of 1977 (30 U.S.C. § 801, et seq.), I construe the
pleading as one for approval of a settlement agreement.
The agreement is appropriate and is approved in its entirety.
Accordingly, citations 828415 and 828439 are affirmed. Respondent
shall, within 40 days of the date of this decision, pay a civil
penalty of $395.00 in connection with citation 828415 and
$345.00 in connection with citation 828439.
SO ORDERED.

John A. Carlson
Administrative Law Judge

1537

Distribution:
James H. Barkley, Esq., Office of the Solicitor, U. S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
Colorado 80294 (Certified Mail)
Brent L. Motchan., Esq., Medicine Bow Coal Company, 500 North
Broadway, St. Louis, Missouri 63102 (Certified Mail)

/ot

1538

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

JUN 18 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA)~
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 83-271
A.C. No. 46-01369-03516

v.

. MacGregor Cleaning Plant

AMHERST COAL COMPANY,
Respondent

DECISION
Appearances:

Before:

- William M. Connor, Esq., Office of the
Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for Petitioner;
Edward W. Conch, Esq., Lexington, Kentucky,
for Respondent.
Judge Broderick

STATEMENT OF THE CASE
The Secretary seeks civil penalties for four alleged
violations of the same mandatory safety standard - that contained in 30 C.F.R. § 77.205Ce). The Secretary takes the
position that the violations were significant and substantial (although one was not so designated in the citation).
Respondent denies that the alleged violations occurred, and
asserts that the regulation involved is void and unenforceable because of vagueness. Pursuant to notice, the case was
heard on the merits on May 1, 1984, in Charleston,
West Virginia. David Francis Mulkey testified on behalf of
Petitioner; Robert Doss and Ernest Marcun testified on
behalf of Respondent. Both parties waived their rights to
file posthearing briefs. Each argued its position on the
record at the close of the hearing.
Based on the entire record and considering the contentions of the parties, I make the following decision.
FINDINGS OF F·ACT
1. At all times pertinent hereto, Respondent was the
owner and operator of the MacGregor Preparation Plant
located in Logan County, West Virginia.

1539

2. Respondent is a wholly owned subsidiary of Diamond
Shamrock Coal Company and produces approximately 1.5 millon
tons of coal annually. Respondent is a large operator.
3. The imposition of penalties in this proceeding will
have no effect on Respondent's ability to continue in
business.
4. Between October 15, 1982 and June 2, 1983, the
subject mine had a history of 57 paid violations, 31 of
which were designated as significant and substantial.
Seventeen of these violations were of the safety standard in
30 C.F.R. § 77.205 concerning travelways. This is a significant history of prior violations.
5. The conditions cited as violations in each of the
citations invcrlved herein were abated promptly and in good
faith after the citations were issued.
6. On June 3, 19a3, Federal Mine Safety Inspector
David Mulkey issued a citation charging a violation of
30 C.F.R. § 77.205Ce) because Respondent failed to provide
toe boards on the walkways in the bottom of the "foreign"
silo.
7. On June 3, 1983, the walkways in the bottom of the
"foreign" silo were not completely provided with toe boards.
The foreign silo was a raw coal storage area for coal before
it was taken to the preparation plant. Toe boards had been
installed, apparently by the contractor who built the silo,
on about half of the walkway.
8. The walkway area was in part open to the weather.
Rain and snow could blow into the area. Coal dust was
present in the area and on portions of the walkway.
9. The walkway was elevated about 6 feet above a
cement floor. There was also a conveyor belt running under
the walkway.
10. The walkway itself was constructed of expanded
metal with holes in it. It was approximately 24 inches wide.
It contained a hand rail or top rail approximately 42 inches
from the walkway, and a midrail approximately 24 inches from
the walkway.
11. The walkway was dry at the time the citation was
issued. There were metal guards and feeder top covers lying

1540

against the handrail on part of the walkway at the time the
citation was issued.
12. Toe boards were installed along the entire walkway
to abate the citation. They were made of metal and were
approximately 5 inches high.
13. On June 6, 1983, Inspector Mulkey issued a citation charging a violation of 30 C.F.R. § 77.205(a) because
Respondent did not provide toeboards on the walkways of the
pan line ramp in the rear area of the preparation plant.
14. On June 6, 1983, the walkways in the pan line ramp
in the subject mine did not have toeboards. There was water
and mud on parts of the walkways. The area was exposed to
the weather. The walkway was elevated about 7 feet above
the surface. There were no work areas or travelways beneath
this walkway.· There was a mid rail about 16 inches from the
walkway and a hand rail about 30 inches from the walkway.
15. Toe boards were installed along the walkway to
abate the citation. They were metal and were approximately
4 inches high.
16. On June 6, 1983, Inspector Mulkey issued a citation charging a violation of 30 C.F.R. § 77.205(e) because
toeboards were not provided in certain areas of the internal
part of the preparation plant including the control room,
the platform around the raw coal conveyor, the top or roof
of the preparation plant, the top of the slate silo, and the
No. 2 cut slate belt platform and walkways.
17. On June 6, 1983, toeboards were not present on the
walkways described in the citation referred to in Finding of
Fact No. 16.
(The top or roof of the preparation plant was
not designed as a walkway but was used as such). Tools and
buckets were present on the control room platform which was
about 10 feet above the next level. It was not exposed to
the weather. There was a midrail 23 inches from the platform floor and a handrail 41 inches from the floor. There
was grease on the platform of the raw coal conveyor. This
platform was 52 inches high. The top of the preparation
plant was exposed to the weather. There was scrap metal
lying around what was used as a walkway. Its height varied
from 2 to 60 feet. There was a safety net 8 to 10 feet wide
along the edge of the plant under the belt line. The net
did not extend all around the plant, however. There was a
bottom railing 16 inches from the floor, a second rail
22 inches from the floor and a top rail approximately

1541

10 inches above that. The top of the slate silo was exposed
to the weather, and there were pieces of perforated metal
lying on the walkway. It was about 30 feet high. There was·
a midrail 19 inches from the floor and a handrail 38 inches
from the floor. The cut slate belt platform had pieces of
slate on the walkway. It was 49 inches high. There was a
midrail 19 inches from the floor and a handrail 40 inches
from the floor.
18. Toeboards were installed in the areas cited to
abate the violation. They were constructed of 4 inch metal.
19. On June 7, 1983, Inspector Mulkey issued a citation charging a violation of 30 C.F.R. § 77.205Ce) because
toeboards were not provided in the entrance platform by the
front door of the preparation plant and throughout the
entrance level of the plant.
20. On June 7, 1983, toeboards were not present in the
entrance platform by the front door of the preparation plant
and throughout the entrance level of the plant. The
entrance platform was open to the weather. The entrance
level of the plant was not exposed to the weather. This
area contained steel plates and perforated metal piled
against the outside of the plant, and in one area screens
were lying against the railing. The entrance platform was
approximately 19 feet high. The walkways had midrails
23 inches from the floor, and handrails 39 inches from the
floor. The platforms were constructed of metal and concrete.
The entrance level was approximately 49 inches above the
floor below. There was a mid rail 19 inches from the floor
and a top rail 42 inches from the ·floor.
21. Toeboards were installed to abate the citation.
They were constructed of 4 inch metal. Almost 3,000 linear
feet of the boards were installed to abate all the citations
referred to in this decision.
REGULATION
30 C.F.R. § 77.205(e) provides as follows:
"Crossovers, elevated walkways, elevated ramps, and stairways
shall be of substantial construction, provided with handrails, and maintained in good condition. Where necessary
toeboards shall be provided."
·
ISSUES

1542

1. Whether the regulatory requirement that toeboards
shall be provided where necessary is impermissibly vague?
2. If it is not, whether the evidence shows that toeboards were necessary in the areas cited in this proceeding?
3. If violations were shown, what is the appropriate
penalty for each?
CONCLUSIONS OF LAW
Vagueness
The Review Commission has interpreted the mandatory
safety standard in 30 C.F.R. § 56.11-2 which is identical
with that contained in 30 C.F.R. § 77.205Ce). Secretary v.
El Paso Rock Quarries, Inc., 3 FMSHRC 35 (1981). It held
that the toe board provision was designed to protect persons
working below the elevated walkways as well as those using
the walkways themselves. Id. at 39. The decision did not
indicate that the standard-Was impermissibly vague because
of the general terms, "where necessary." See also Secretary
v. UNC Mining & Milling, 5 FMSHRC 1164 (1983) CALJ). I conclude that a reasonably prudent person familiar with the
mining industry should be able to determine whether toeboards were "necessary." Therefore, the standard was not
unconstitutionally vague.
Violations
The inspector testified that he cited the absence of
toeboards on elevated walkways where Cl) there was a
slipping or tripping hazard and (2) the walkway was used by
employees with some degree of frequency. He found slipping
hazards to exist where the walkway was open to the weather
and thus subject to snow, rain and ice or where there was
oil, grease, or coal dust on the way itself. He found
tripping hazards to exist where there were objects present
along the walkway over which an employee could trip or
stumble. Whether toeboards are necessary in such instances
is a matter of judgment. In each case cited, there were
handrails and midrails present, which reduced the likelihood
of slipping off the walkway. Nevertheless, I accept the
inspector's judgment and conclude that in each instance
cited, toeboards were necessary. The violations charged
were established by a preponderance of the evidence. I distinguish the case of Secretary v. Big Ten Corporation,
2 FMSHRC 2266 (1980) CALJ), in which the Judge found toeboards unnecessary where the walkway extended 6 inches
beyond the rails. Such is not the case here.

1543

Significant and Substantial
Three of the four citations involved in this case were
designated as significant and substantial. Much of the testimony and argument of counsel was devoted to the propriety
of these designations. However, the issue was not raised in
the pleadings or the prehearing submissions. I conclude
that the issue is not before me and I do not rule on the
question whether the violations were of such nature as could
significantly and substantially contribute to the cause and
effect of a mine safety hazard.
Penalties
The seriousness of each of the violations is diminished
by the fact that hand rails and mid rails were installed on
all the walkways in question reducing the likelihood that an
employee could slip or fall through to the level below.
Should he do so, however, serious injuries could result.
The inspector deemed Respondent's negligence to be low, and
I concur in this determination, since MSHA inspectors had
been through the areas many times previously and had not
cited the conditions.
Considering the criteria in section llOCi) of the Act,
I conclude that appropriate penalties for the violations are
as follows:
1. Citation No. 2141934 involved the foreign silo walkways. The seriousness of this violation is increased
because three slipping or tripping factors were present:
The area was open to the weather (though it was dry at the
time the citation was issued)~ coal dust was present on portions of the walkways and objects were present on the walkways. The walkways were elevated 6 feet above the surface
below. The midrail was 24 inches high. I conclude that an
appropriate penalty for this violation is $75.
2. Citation No. 2141~38 involved the pan line ramp
walkway. Water and mud were on the walkway which was open
to the weather. The walkway was elevated 7 feet above the
surface below. However, the seriousness of the violation is
diminished by the fact that the midrail was only 16 inches
above the walkway, making the possibility of slipping off
the walkway unlikely. I conclude that an appropriate penalty for this violation is $40.

1544

3. Citation No. 2141939 involved many areas around the
control room platform, the raw coal conveyor, the roof of
the preparation plant, the slate silo and the cut slate belt
platform. Some of these areas were exposed to the weatheri
there was grease on some of the areas1 the elevations varied
from 2 feet to 60 feet. The bottom rail height varied from
16 inches to 23 inches. Because of the number of areas
involved, I conclude that an appropriate penalty for this
violation is $100.
4. Citation No. 2142184 involved the entrance platform
and throughout the entrance level. Part of this area was
open to the weather and objects were present on.the walkways.
The elevation varied from 49 inches to 19 feet. The midrails varied from 19 inches to 23 inches. I conclude that
an appropriate penalty for this violation is $75.
ORDER
Based on the above Findings of Fact and Conclusions of
Law, IT IS ORDERED that within 30 days of the date of this
decision, Respondent pay the following civil penalties for
the violations found herein to have occurred.
CITATION

PENALTY

2141934
2141938
2141939
2142184

$

Total·

75
40
100
75

$ 290

·rf~=··~l
A·bvPtk4id_
·' James· A. Broderick

.

Administrative Law Judge

1545

Distribution:
William M. Connor, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480 Gateway Building,
3535 Market Street, Philadelphia, PA 19104 (Certified Mail)
Edward w. Conch, Esq., Amherst Coal Company, 1200 First
Security Plaza, Lexington, KY 40507 (Certified Mail)
/fb

1548

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

VESTA MINING COMPANY,
Contestant

JUN 19 1984

CONTEST PROCEEDING··
Docket No. PENN 83-122-R
Order No. 2103186
Doc~et No. PENN 83-123-R

v .•

Citation No. 2103187

.
.

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

Docket No. PENN 83-125-R
Order No. 2103197

Vesta Mine

DECISION
Appearances:

Michael T. Heenan, Esq., Smith, Heenan, Althen
& Zanoli, Washington, DC, for Contestant,
David E. Street, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, PA.,
for Respondent

Before:

Judge Fauver

Vesta Mining contests two orders and one citation issued
by the Secretary of Labor (MSHA) on March 2, 1983. Jurisdiction
in this proce~ding is stipulated, and applies under section
lOS(d) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 801, et ~
The three cases were consolidated and heard in Pittsburgh.
Having considered the testimony, and the record as a whole,
I find that a preponderance of the probative, reliable, and
substantial evidence establishes the following:
FINDINGS OF FACT
Order

No. 2103197

1. Federal Mine Inspector Joseph F. Reid issued this withdrawal order under section 104(d) (2) of the Act on March 2, 1983.
The order charges a violation of 30 CFR § 75.303(a), based upon
the following condition or practice:

1547

No times, dates and initials of
examinations made by certified
persons in the No. 10 entry working
place of the 9 Butt left 44 Face
Section (MMU 037) were being
recorded within the last two (2)
weeks, as the last date observed
on .the line canvas in this place
was February 15, 1983. According
to the section foreman on this
shift (Stan Crowson) , the examinations have been made for preshift
and onshift in this working place,
but the time, date and initials were
not placed in the area by him and
apparently not by the other certified
persons on the afternoon and midnight
shifts and therefore a proper examination was not being made.
2. The 9 Butt area, where the order was issued, had
originally been developed for longwall mining.
3. Because of a rock fault in the area, longwall
mining turned out not to be feasible and the company decided
to mine the area by the room and pillar method.
In accordance
with standard practice under MSHA regulations, the company submitted
to MSHA a venilation plan which included projections of this
mining plan.
4. Included with the company's mining projections were
bleeder entries and bleeder projections. The purpose of a
bleeder is to provide ventilation to gob areas which result
from pillar mining .. Bleeder entries are intentionally left
on both sides of the area to be pillared so that as mining
progresses airways will remain to sweep methane from the gob.
5. Once established, the bleeder entries are required
by the regulations to be examined weekly unless the company
has a monitoring station where bleeder performance can be
evaluated without an examiner specifically traveling the bleeder.
Thus, MSHA in approving the ventilation plan, advised the company:
"Since you did not establish a method
to evaluate the back end of 9 Butt 44
gob, it it is assumed you are traveling and
examining the bleeder entries weekly."

1548

6. In addition to the bleeders, which were designed and
projected to provide air to the gob, the company's ventilation
plan projected how ventilation was going to be established on
the working section in 9 Butt. The plan was to use curtains to
keep fresh air on the section and gob air off the section.
Bleeders were also projected to be separated from the section
by curtains. Face ventilation, on the other hand, was to be
maintained by means of a section fan and tubing leading directly
into each working face.
This plan was being followed at the
time of the inspection in these cases.
7. Exhibit C-2 shows the condition of the section on
March 2, 1983. It also shows, along with Exhibit C-1, how
the intrusion of the rock fault, which had made longwall
mining infeasible, interrupted the room and pillar mining.
8. In mid-February 1983, the place where the company had
been mining its bleeder projections pinched out at the rock
fault and all mining was terminated in this area by February 15,
1983. Ventilation check curtains were installed in the entries
involved, Nos. 9 and 10, and the entire top entry (No. 10) was
incorporated into the company's permanent bleeder system.
9. On the day of the inspection, March 2, 1983, Section
Foreman Stan Crowsen was in charge of the working section.
Crowsen had over 12 years mining experience, and had served
as a section foreman (assistant.mine foreman) at the Vesta mine
for over 7 years.
10. Inspector Reid traveled w~th Crowsen to the 9 Butt
area. On the way in, Crowsen checked all of the stoppings
between the track and intake air entries.
11. When they arrived on the section, Crowsen asked the
inspector whether he wanted to talk with the miners.
The
inspector chose instead to accompany Crowsen on his examination
of the working faces, located in No. 4 and No. 5 entries.
l2.
In making his examination of the working faces in
the No. 4 and No. 5 entries, Crowsen placed the time, date, and
his initials on the ventilation tubing in each face. As he did
so, Crowsen noted that the faces had initials showing that the
section had been pre-shifted by the previous section foreman.
The inspector made a methane check in the No. 5 entry and
followed Crowsen as he on-shifted the working faces.

1549

13. The inspector did not dispute the adequacy of Crowsen's
inspection or the marking of the date and initials at .the faces
where mining was being conducted on the section.
14. Crowsen next went to the area "just behind" the fan
(see Exhibit C-2) ~nd made a methane check. Crowsen then
examined the ventiiation check curtain parallel to the fan in
crosscut No. 22, and determined that it had been properly installed.
15. After completing these checks, Crowsen examined the
Section Load Center which provides power to electrical equipment
on the section. Then Crowsen went up to the Battery Charging
Station, whe:i:e .. he observed an accumulation of water coming
from the other side of a stopping which separated the Section
Charging Station from the No. 10 bleeder entry.
16. To locate the apparent source of the water, Crowsen
walked east to the dead-end of the No. 9 entry, and went around
and behind the curtains which separated the working section from
the No. 10 return. He then proceeded west up the No. 10 return,
which directs bleeder air to the gob areas, until he arrived at
the stopping behind the Battery Charging Station.
17. After checking on the water accumulation, Crowsen
retraced his steps back down No. 10, around the deflection
check curtains in No. 10 and No. 9, and then went to check a
mechanical problem with the belt feeder.
18. At this point, Crowsen was informed that the inspector,
who was back at the dead-end and ext-reme east end of the No. 10
entry, was preparing to cite a roof control violation (for
an area between Nos. 3 and 4 entries). Crowsen and a mechanic
went to the inspector to determine what the problem was about
the roof.
19. In their discussion about the roof, the inspector
questioned Crowsen with respect to whether the dead-end area
of No.·10 entry had been examined regularly and Crowsen .indicated
that it had been.
20. The inspector then issued the subject order, charging
that pre-shift times, dates and initials should have been placed
in the east end of No. 10.

1550

21. No mining was being conducted in the No. 10 entry,
on March 2, 1983, and that entry was separated from the working
section. ~he inspector observed no mining equipment in the
area; there was no evidence of equipment having been there
since mining had ceased in mid-February, which was the point
at which date, time and initials had last been marked.
22. The No. 10 entry, directing return air to bleeders,
was inspected each week by Crowsen or other certified
examiners.
In making the regular weekly inspections of the
No. 10 return, Crowsen and other examiners put their initials
at different locations along the entry, and not necessarily in
a given spot.
23. Inspector Reid did not examine the No. 10 entry for
dates, times and initials of weekly examinations. Rather, he
confined his inspection in No. 10 to determining only whether
Crowsen had written the date "March 2, 1983" on line brattices
separating No. 9 and No. 10.
24. Crowsen considered No. 10 a return entry subject to
regular weekly inspections but not pre-shift or on-shift
inspections, because no miners were normally required to work
or travel there.
25. After mining ceased in mid-February, the No. 10 entry
was not in a condition suitable for mining. Apart· from the rock
intrusion, posts had been set up which would have blocked access
necessary for mining operations and the Battery Charging Station
had been established only one crosscut away, thus impeding access
to the No. 9 and No. 10 dead-end headings.
In addition, the No.
10 entry was being relied upon to provide a segregated return
to direct. ble~der-air to the gob behind the section.
26. After the cessation of mining in mid-February, 1983,
two weeks before the issuance of the order involved here, the
No. 10 return, including the dead-end heading where the subject
order was issued, was not an area where any miners other
than certified examiners entered or were assigned to enter.
27. On March 2, 1983, the No. 10 return, including the
dead-end where the order was issued, was not part of the 9 Butt
area working section.

1551

Order No. 2103186
28. During the inspection on February 24, 1983, Inspector
Reid entered a crosscut between Nos. 3 and 4 entries,·adjacent
to the belt feeder.
There he saw sandstone roof about 8 to
9 feet high, and observed three pieces of loose and hanging
sandstone between roof bolts. These pieces were large enough
to kill or seriously .injure a miner if one fell on him.
29. Based upon his observations of the roof, Inspector
Reid informed a company representative, Calvin Smitley, that
he was issuing a section 107(a) ("inuninent danger") order
because of the roof condition. The 107(a) order states:
There was loose and hanging pieces of
sandstone observed in the middle of
the No. 8 room crosscut between Nos. 3
and 4- .. entries of the 1 Panel Ea.st
Mains section (MMU 036). This
Order is being issued to assure
the safety of any persons in this area
until the time that it is determined
to be safe.
30. Smitley found a piece of drill steel and began prying
down the three pieces of roof. The pieces came down. They
were about 3 inches thick and, in total, were about 6 square
feet.
Citation No. 2103187
31..
In the same crosscut where he issued the 107 (a)
order, Inspector Reid observed what appeared to him to be
excessive spaces between roof bolts. The roof ranged from
about 8 to 9 feet in height in.the crosscut.
32. Inspector Reid used a 6-foot rule to measure the
distance between the roof bolts he questioned. Near the No. 3
entry, _he saw a large crack about 10 feet long. The roof there
was about 8 feet high, and he. was able to measure several roof
bolt distances by holding both ends of the rule against the
roof.
I find these measurements to be accurate, and they
showed distances of 55 inches, 54 1/2 inches, and 49 inches
between roof bolts. He attempted to measure distances in areas
where the roof was too high to hold both ends of the rule
against the roof. I find that his "measurements" in those areas
(ranging from 49 1/2 to 66 inches) were merely estimates and
were subject to too much of a margin of error to be reliable
figures.

1552

33. Based upon his measurements and attempts to measure
the distances between roof bolts, Inspector Reid issued a
section 104(a) citation (No. 2103187), which states:
The approved roof control plan was
not being complied [with] in the
No.· 8 room crosscut between Nos. 3
and 4 entries of the 1 Panel-East
Mains section (MMU 036) as there
were 10 areas between the conventional
roof bolts in the center of the
crosscut where the spacing between the
bolts exceeded the required 48 inches.
Six of the areas ranged from 53 to 59
inches and four of the areas ranged
from 60 to 66 inches and there were
loose~ and hanging pieces of sandstone,
averaging 3 inches thick, and there
was a 10 foot long crack in the
sandstone in this crosscut where the
height ranged from 8 to 9 feet.
This crosscut is a regular tramway
for shuttle cars taking coal to the
belt feeder.
Note -The Galis roof bolter at 1200
was in the process of starting to
bolt the affected areas after the
loose and hanging sandstone was
taken down and two (2) rows of
roof jacks were installed. This
citation will not be terminated
until the plan is reviewed with
the persons on all three shifts that
normally work in this section, by
management personnel.
The §l04(a) citation was issued on February 24, 1983.
February 25, 1983 it was modified as follows:

1553

On

Citation No. 2103187 issued on
February 24, 1983 is hereby modified
to include the following statement:
The excessive roof bolt spacing
observed in the No. 8 room crosscut
between Nos. 3 and 4 entries of the
1 Panel-East Mains section was one
of the factors that contributed to
the i·ssuance of Imminent Danger
Order No. 2103186 dated February 24,
1983.
DISCUSSION WITH FURTHER FINDINGS
Order No. 2103197
This MSHA order charges a violation of 30 CFR § 75.303(a)
for failure to place time, date, and initials of a preshift
examination at tbe east dead-end of No. 10 entry.
Section 75.303(a) requires preshift examinations and the
placing of time, date, and initials at the places preshifted
within three hours before a shift begins and "before any miner
in such shift enters the active workings of a coal mine." The
term "active workings" is defined as:
any place in a coal mine where miners
are normally required to work or travel.
(30 U.S.C. § 318(g) (4); 30 CFR § 75.2(.g)
( 4) • ]

The intake air was split just a.fter it reached the working
section in question. Part of it ventilated the working section
and part of it became return air to ventilate the gob areas.
No. 10 entry, at the point where Inspector Reid charged a
preshift violation, was a bleeder entry outside the working
section. Mining had ceased there on February 14 or 15, 1983,
over two weeks before the date of the citation. The regulations
provide that bleeders "shall not include active workings" (30
CFR 75~316-2(c) (2)). They are required to be examined weekly,
but not preshif ted.
Since no miners, other than certified examiners, were
required to enter the No. 10 entry, there was no require~ent
for a preshift examination under 30 CFR § 75.303(a). Therefore,
the Secretary failed to prove a violation as alleged in Order
No. 2103197.

1554

Order No. 2103186
Inspector Reid observed the roof in question,,and saw
several pieces of loose hanging sandstone between roof "bolts.
Calvin Smitley, the management representative, pried down 3
pieces of roof with a drill steel. He testified that the pieces
were not loose and that it took extreme.effort to pry them down.
It was his opinion that the roof was safe, and that it was
actually a danger to try to pry down a solid roof. ·However, he
did not use a roof bar designed to pry down roof. A drill
steel is not wedged and tapered, and is not an appropriate device
for prying down pieces of a roof. I credit the in~pector's
·
testimony that there were loose, hanging pieces and that these
were of sufficient size to cause death or serious injury if ·a
piece fell on a miner.
In crediting Inspector Reid's testimony that the roof
condition was an<imminent danger, I have also considered his
supervisor's testimony that Inspector Reid had correctly issued
an imminent danger order at another mine, when he observed loose
roof that fell very shortly after he caused the mine to be
evacvated. The order in that case, as in this one, was issued
despite the operator's strong opinion that the roof was safe.
I find that Smitley's use of drill steel rather than a proper
prying bar lessens the credibility and weight of his testimony
as to the actual condition of the roof.
I credit Inspector
Reid's testimony as to the number, size, and danger of the
pieces pried down by Smitley.
Roof falls are one of the chief causes of fatalities in
underground coal mining. The inspector's issuance of an
imminent danger order was justified by the facts of this case.
Citation No. 2103187
As stated in the findings, the inspector measured some
of the root bolt distances by holding both ends of the 6-foot
rule against the roof. As to those, I find that the measurements
were accurate, and that a preponderance of the reliable,
probative, and substantial evidence establishes that the top
~hree figures in the inspector's drawing in his notes
(Exhibit
6), showing distances of 55, 54 1/2 and 49 inches, were reasonably
measured and are accurate. However, the rest of the figures were
not measured by placing both ends of the rule against the roof.
The inspector simply placed one end of the rule against the roof
and held the other end of the rule some distance down from the
roof and sighted the point of the rule (i.e. the inch mark}
which he estimated would be the right place if that end were placed

1555

ag,ainst the roof. Thus, instead of measuring points A and B
(the distance between two roof bolts), he was estimating the
distance between point A (on the roof) and Point C, some
distance in space beneath the roof.
I find that this approach
was uncertain and not reliable.
In summary, l find that the top three figures (55, 54 1/2
and 49 inches) in the inspector's drawing were adequately
measured and proven by the Secretary. Since the roof-control
plan provides a margin of error of 5 inches, the figures 55
and 54 1/2 inches prove violations of the 48-inch standard in
the roof control plan, and the figure 49 inches does not.
The rest of the figures· in the inspector's drawing are rejected
as being unreliable estimates and not actual measurements.
CONCLUSIONS OF LAW
1.

The Coi:nmission has jurisdiction in these proceedings.

2. The Secretary did not meet his burden of proving a
violation as alleged in Order No. 2103197.
3. The Secretary met his burden of proving a violation
as alleged in Order No. 2103186.
4. The Secretary met his burden of proving two violative
roof bolt distances in Citation No. 2103187 (i.e. 55 and 54 1/2
inches), but did not prove a violation as to the other alleged
excessive distances.
ORDER
WHEREFORE IT IS ORDERED that:
1.

The Secretary's Order No. 2103197 is VACATED.

2.

The Secretary's Order No. 2103186 is AFFIRMED.

3~
The Secretary's Ci~ation No. 2103187 is MODIFIED by
deleting the following language:

1556

10 areas between the conventional
roof bolts in the center of the
crosscut where the spacing
between the bolts exceeded the
required 48 inches. Six of the
areas ranged from 53 to 59 inches
and four of the areas ranged from
60 to 66 inches.
and substituting therefor the,following language:
two areas between the conventional
roof bolts exceeded the required 48
inches in that one spacing was 55
inches and the other spacing was 54 1/2
inches.
Citation No. 2103187, as so MODIFIED, is AFFIRMED.

(.JJ,t.;..., ::r~Vt/tWilliam Fauver
Administrative Law Judge
Distribution:
Michael T. Heenan, ·Barbara L. Krause, Smith, Heenan, Althen
& Zanoli, 1110 Vermont Ave., NW, Washington, DC 20005
(Certified Mail)
David Street, Esq., U.S. Department of Labor, Office of the
Solicitor, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
Michael H. Holland, Esq., UMWA, 900 15th Street, N.W.,
Washington, D.C. 20005 (Certified Mail)

kg

1557

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

June 20, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
on behalf of
TEDDY W. BENTLEY,
Complainant

DISCRIMINATION PROC.EEDING
Docket No. KENT 84-157-D
No. 26 Mine

v.
BETH-ELKHORN CORPORATION,
Respondent
ORDER OF DISMISSAL
DECISION APPROVING SETTLEMENT
This is a discrimination case brought by the Secretary
on behalf of Teddy W. Bentley. On May 29, 1984, the Solicitor filed a motion to withdraw the complaint, explaining
in detail a settlement agreement reached by the parties.
Attached to the Solicitor's motion is a statement signed by
Mr. Bentley that he voluntarily entered into the settlement
and authorized the Solicitor to withdraw this complaint.
In addition, the Solicitor and the operator have moved
for approval of a civil penalty settlement in the amount of
$100.
I have reviewed the Solicitor's comprehensive motion
to withdraw.
It is Granted and the complaint is Dismissed.
I have also reviewed the settlement motion and in
light of unusual circumstances set forth therein, determine
it proper. The parties' request to delete the last sentence
of the penultimate paragraph of the settlement motion is
Granted. The settlement motion is Approved and the operator
is Ordered to pay $100 within 30 days from the date of the
decision.

Paul Merlin
Chief Administrative Law Judge

1558

Distribution:
W.F. Taylor, Esq., Office of the Solicitor, U.S. Department
of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Mr. Teddy W. Bentley, Route 2, Box 148, Jenkins, KY
(Certified Mail)

41537

Mr. Ernest G. Bentley, Superintendent, Industrial Relations,
Beth-Elkhorn Corporation, Jenkins, KY 41537
lCertified
Mail)
/nw

1559

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA), on
ON BEHALF OF
LOREN E. Nielsen, Sr.
Complainant

v.
STEWART STONE, INC.• ,
Respondent

JUN·21 \984

.: DISCRIMINATION PROCEEDING
:
:

Docket No. CENT 84-11-DM
MSHA Case No. MD 83-34
Bird Quarry & Plant

.

DECISION APPROVING SETTLEMENT
Before: Judge Vail
This case is before me upon the complaint filed by the
Secretary of Labor on behalf of Loren E. Nielsen, Jr., under
section 105(c)(2) of the Federal Mine Safety and Health Act of
1977 (the "Act"), for an alleged unlawful discharge on or about
May 13, 1983. The parties have filed a joint stipulation of
settlement and proposed order of dismissal in which respondent
has agreed to pay Mr. Nielsen $3,000.00 in settlement of, on
account of, or arising out of his employment relationship with
respondent, specifically the termination of his employment and/or
any alleged discriminatory emvloyment practice committed by
respondent against the complainant at any time prior to the
execution of the agreement. Nielsen seeks to withdraw any and
all complaints of discrimination filed with Federal Mine Safety
and Health Administration including the complaint above. The
Secretary also seeks to withdraw its request for a civil penalty.
Each party agrees to bear his own fees and other expenses
incurred herein.
I have considered the representations and documentation
submitted in this case, and I conclude that the preferred
disposition is appropriate.
WHEREFORE, the proposed settement is APPROVED and this case
is DISMISSED.

-v:;:;;. ?.~
Vi~Vail

Administrative Law Judge
/blc

1560

Distribution:
James J. Manzanares, Esq., Office of the Solicitor
U.S. Department of Labor, 555 Griffin Square, Suite 501
Dallas, Texas 75202
(Certified Mail)
·
Mr. Loren E. Nielsen, Sr., 502 E. 19th, Tearney, Nebraska
(Certified Mail)

68847

Aimee Hess, Esq., 2001 Bryan Tower, Suite 1060
Dallas, Texas 75201
(Certified Mail)
Mr. Ben Peters, Controller, Stewart Stone, P.O. Box 442
McKinney, Texas 75069 (Certified Mail)

.i;i.u.s. GOVERNMENT PRINTING OFFICE• 1984-421"569/13603

1561