NOVEMBER 1989
COMMISSION DECISIONS
11-08-89
11-14-89
11-20-89
11-20-89
11-21-89
11-22-89
11-30-89

WEVA 89-150
Pg.
O'Neal Machine & Repair
Clinchfield Coal Company
VA
89-67-R Pg.
YORK 89-45-M Pg.
Blue Circle Atlantic, Inc.
YORK 89-46-M Pg.
A.H. Smith Stone Company
VA
88-9
Pg.
Garden Creek Pocahontas Company
PENN 88-152-R Pg.
Rochester & Pittsburgh Coal Co.
Sec. Labor for Juan Pena v. Eisenman Chemical Co. CENT 85-47-DM Pg.

2117
2120
2144
2146
2148
2159
2166

ADMINISTRATIVE LAW JUDGE DECISIONS
11-01-89
11-06-89
11-07-89
11-07-89
11-07-89
11-09-89
11-09-89
11-13-89
11-13-89
11-13-89
11-15-89
11-15-89
11-15-89
11-17-89
11-17-89
11-17-89
11-17-89
11-20-89
11-21-89
11-21-89
11:-21-89
11-21-89
11-24-89
11-27-89
11-27-89
11-27-89
11-28-89
11-28-89
11-28-89
11-28-89
11-29-89
11-30-89

CENT 89-67-M Pg. 2169
Midwest Minerals, Inc.
YORK
89-15-D Pg. 2174
Warren Clyde Teets v. Mettiki Coal Co.
CENT 89-24-DM Pg. 2181
Sec. Labor for William J. Brock v. Blue Circle
KENT 89-80-R Pg. 2228
Sidney Coal Company
WEST 88-96-M Pg. 2233
Walsenburg Sand & Gravel Co.
KENT 89-1-D
Pg. 2240
John Dixon Hacker v. Black Streak Mining
YORK 89-47-DH Pg. 2271
Sec. of Labor for Michael A. Carrano v.
Blue Circle Atlantic, Inc.
Sec. of Labor for Fred Bartley v. Adams Stone Co. KENT 89-102-DM Pg.2273
PENN 89-152
Pg. 2275
Beth Energy Hines, Inc.
SE
89-63-D Pg. 2277
Sec. of Labor for Dan Nelson and others, and
UMWA v. Jim Walter Resources, Inc.
WEVA 89-52
Pg. 2279
Consolidation Coal Company
Sec. of Labor for James S. Terry v.Timberline
WEVA 89-105-D Pg. 2287
Energy, Inc. and Randy Burke
WEVA 89-227-D Pg. 2297
Sec. of Labor for John L. Jones v. Virginia
Carbon, Inc. and others
PENN 89-40
Pg. 2299
Beth Energy Mines, Inc.
PENN 89-184
Pg. 2305
Beth Energy Mines, Inc.
Beth Energy Mines, Inc.
PENN 90-2-R
Pg. 2308
SE
89-107-D Pg. 2310
Sec. of Labor for Dan Nelson and UMWA v.
Jim Walter Resources, Inc.
WEST 88-274-M Pg. 2312
L.E.L. Construction
CENT 89-69-M Pg. 2328
Haskell County Gravel Co., Inc.
PENN 88-287
Pg. 2329
Cyprus Emerald Resources Corp.
PENN 89-228-D Pg. 2350
Jeffrey Brown v. Beth Energy Mines, Inc.
SE
88-82-RM Pg. 2351
Asarco, Incorporated
PENN 89-8-D
Pg. 2353
Joseph G. Delisio v. M~thies Coal Co.
William D. Long, employed by K.R. Wilson
CENT 89-122-M Pg. 2358
Contracting, Inc.
CENT 89-27-M Pg. 2359
K.R. Wilson Contracting, Inc.
Kenneth Wilson employed by K.R. Wilson Contr.
CENT 89-126-M Pg. 2360
LAKE 89-36-M Pg. 2361
Vandalia Sand & Gravel
SE
89-93
Pg. 2364
Jim Walter Resources, Inc.
KENT 89-192
Pg. 2369
Leeco, Incorporated
Mountain Parkway Stone, Inc.
KENT 89-137-M Pg. 2374
YORK 89-45-M Pg. 2380
Blue Circle Atlantic, Inc.
CENT 88-118-M Pg. 2382
Malvern Minerals Company

ADMINISTRATIVE LAW JUDGE DECISIONS (continued)
11-30-89
11-30-89
11-30-89

Kathleen I. Tarmann v. International Salt Co.
Frederick J. Boucher v. Svonavec foal Co.
Industrial Constructors Corporation

LAKE 89-56-DM
PENN 89-248-D
WEST 89-86-M

Pg. 2391
Pg. 2392
Pg. 2393

ADMINISTRATIVE LAW JUDGE ORDERS
11-03-89
11-16-89

Richard R. Maynes v. Phelps Dodge Corporation
2 K Leasing

CENT 89-132-DM Pg. 2395
WEVA 89-103
Pg. 2396

NOVEMBER 1989
Review was granted in the following cases during the month of November:
Secretary of Labor, MSHA v. O'Neal Machine and Repair, Docket No. WEVA 89-150.
(Chief Judge Merlin, Default Order of September 20, 1989)
Secretary of Labor, MSHA v. Rochester & Pittsburgh Coal Company, Docket No.
PENN 88-284-R, 285-R, PENN 89-72. (Judge Maurer, October 4, 1989)
Harry Ramsey v. Industrial Constructors Corporation, Docket No. WEST 88-246-DM.
(Judge Morris, October 10, 1989)
Secretary of Labor, MSHA v. Blue Circle Atlantic, Inc., Docket No. YORK 89-45-M.
(Chief Judge Merlin, Default Order of October 26, 1989)
Secretary of Labor, MSHA v. A.H. Smith Stone Company, Docket No. YORK 89-46-M.
(Chief Judge Merlin, Default Order of October 24, 1989)
Southern Ohio Coal Company v. Secretary of Labor, MSHA, Docket No.
WEVA 89-124-R, 89-204. (Judge Broderick, October 17, 1989)
Secretary of Labor, MSHA v. Southern Ohio Coal Company, Docket No. WEVA 88-144-R,
WEVA 88-212. (Judge Maurer, October 16, 1989)
Rochester & Pittsburgh Coal Company v. Secretary of Labor, Docket No.
PENN 88-309-R, 88-310-R. (Judge Weisberger, October 17, 1989)
Review was denied in the following cases during the month of November:
Secretary of Labor, MSHA v. Lyon Washed Sand & Gravel., Docket No. LAKE 89-28-M.
(Judge Broderick, September 28, 1989)
Secretary of Labor, MSHA v. A.H. Smith Stone Company, Docket No. VA 89-28-M.
(Chief Judge Merlin, September 29, 1989)
Kenneth Howard v. B & M Trucking Co., Docket No. KENT 89-2-D.
October 6, 1989)

(Judge Melick,

Secretary of Labor, MSHA v. Green River Coal Company, Docket No. KENT 89-126.
(Judge Broderick, October 20, 1989)
Secretary of Labor, MSHA v. Eastern Associated Coal Corporation, Docket No.
WEVA 89-192, Petition to Reconsider Interlocutory Review denied.

COMMISSION DECISIONS

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

November 8, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEVA 89-150

O'NEAL MACHINE & REPAIR, INC.

BEFORE:

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

ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982). On
September 20, 1989, Commission Chief Administrative Law Judge Paul
Merlin issued an Order of Default finding O'Neal Machine & Repair, Inc.
("O'Neal") in default for failure to answer the Secretary of Labor's
Petition for Assessment of Civil Penalty and the judge's Order to Show
Cause. The judge assessed a civil penalty of $5,300, the amount
proposed in the Secretary's penalty petition. By letter to the
Secretary of Labor dated September 25, 1989, O'Neal asserted that it had
previously sent to the Department of Labor's Mine Safety and Health
Administration ("MSHA"), within the time permitted for answering a
penalty proposal, a written "reply to the penalties assessed against
us." A copy of a certified mail return receipt, enclosed with O'Neal's
September 25 letter, indicates that its May 11, 1989, reply was received
in MSHA's Arlington, Virginia offices on May 15, 1989. O'Neal 1 s
September 25 correspondence was subsequently forwarded to the Commission
by the Secretary. We deem O'Neal's September 25 letter to constitute a
request for review. See, ~· L&L Gravel, 11 FMSHRC 803-04 (May 1989).
For the reasons discussed below, we reopen this proceeding, grant
O'Neal's request for review, vacate the judge's default order, and
remand for further proceedings.
It appears from the record that O'Neal, acting pro se, attempted
to file its answer to the Secretary's civil penalty petition within the
30-day period of time prescribed for replying to a penalty proposal (~
29 C.F.R. § 2700.28). Although the document was mistakenly sent to
MSHA, and was not filed with this Commission, an adjudicatory agency
separate and independent from the Department of Labor and MSHA, as
required (~ 29 C.F.R. §§ 2700.S(b) & .28), O'Neal appears to have been
attempting in good faith to comply with its filing responsibilities.

2117

Under the circumstances, we conclude that O'Neal should be afforded the
opportunity to explain its filing attempts to the judge, who shall
determine whether final relief from default is appropriate. See, ~·
El Paso Sand Products, Inc., 10 FMSHRC 960 (August 1988).
For the foregoing reasons, we vacate the judge's default order and
remand this matter for further proceedings. O'Neal's attention is
directed to the requirement that all further papers submitted in this
proceeding must be filed with the Commission and copies of all such
documents served on the Secretary of Labor. 29 C.F.R. §§ 2700.S(b)
& • 7. '!:_/

~

1~4_d~4~
Richard V. Backley, Commission&r-'

~/

Commission Procedural Rule S(b) states:
Where to file. Until the Judge has been assigned to
a case, all documents shall be filed with the
Commission. After a Judge has been assigned, and
before he issues a decision, documents shall be
filed with the Judge, except for documents filed in
connection with interlocutory review, which shall be
filed with the Commission. After the Judge has
issued his decision, documents shall be filed with
the Commission. Documents filed with the Commission
shall be addressed to the Executive Director and
mailed or delivered to the Docket Off ice, Federal
Mine Safety and Health Review Commission, 1730 K
Street, N.W., Sixth Floor, Washington, D.C. 20006.

29 C.F.R. § 2700.S(b).

2118

Distribution
Winston R. O'Neal
O'Neal Machine & Repair, Inc.
P.O. Box 641
Fayetteville, West Virginia 25840
Page H. Jackson, Esq;
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

2119

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

November 14, 1989
CLINCHFIELD COAL COMPANY
Docket No. VA 89-67-R

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
and
UNITED MINE WORKERS OF AMERICA

(UMWA)

BEFORE:

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

DECISION

BY:

Ford, Chairman; Backley and Doyle, Commissioners

In this contest proceeding arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982) ("Mine Act" or
"Act"), Clinchfield Coal Company ("Clinchfield") seeks review of a
withdrawal order issued by the Department of Labor's Mine Safety and
Health Administration ("MSHA"), pursuant to section 104(b) of the Mine
Act, 30 U.S.C. § 814(b), at Clinchfield's McClure No. 1 Mine. The
withdrawal order alleges that Clinchfield failed to abate a violation of
30 C.F.R. § 75.326 (the application of which had previously been
modified by the Secretary of Labor at the McClure No. 1 Mine) by
permitting air in excess of 300 feet per minute ("fpm") to be coursed
over the belt conveyor systems for vent~lation of working places. In
its contest, Clinchfield seeks, inter alia, vacation.of the withdrawal
order and extension of the time for abating the violation until
completion of proceedings before the Department of Labor, conducted
pursuant to section lOl(c) of the Act, 30 U.S.C. § 8ll(c), concerning
Clinchfield's separate petition for further modification of section
75.326, as applied at the McClure No. 1 Mine, to remove the 300 fpm
limitation. Along with its contest, Clinchf ield also seeks from the
Commission temporary relief from the withdrawal order pursuant to
section 105(b) of the Act, 30 U.S.C. § 815(b).

2120

In expedited proceedings on Clinchfield's contest, Commission
Administrative Law Judge James A. Broderick permitted the United Mine
Workers of America ("UMWA") to intervene. In his written decision in
this matter, i.ssued on August 30, 1989, 21 days after completion of a
three-day evidentiary hearing, the judge denied Clinchfield's request
for temporary relief Dn the grounds that he was then prepared to rule on
the merits of the operator's contest. He vacated the section 104(b)
withdrawal order and extended the time for abatement of the violation
until commencement of the next hearing scheduled before the Department
'of Labor with respect to Clinchfield's pending petition for modification. 11 FMSHRC 1568 (August 1989)(ALJ). We granted petitions for
discretionary review ("PDR") filed by Clinchfield and the UMWA and
granted Clinchfield's request for expedition and oral argument.
Following completion of briefing pursuant to an expedited briefing
schedule, we heard oral argument on November 8, 1989. For.the following
reasons, we affirm the judge's vacation of the withdrawal order and his
extension of the time for abatement but modify the terms of that
extension as explained below.
I.

Factual and Procedural Background
Clinchfield's McClure No. 1 Mine is an underground coal mine
located near McClure, Virginia, and has been in operation since 1979.
The mine is a gassy mine, liberating more than four million cubic feet
of methane per 24-hour period. 1/
Pursuant to a modification petition filed by Clinchfield on
December 21, 1979, under section lOl(c) of the Mine Act, MSHA, in
October 1980, modified the application of 30 C.F.R. 75.326 at the mine
by granting Clinchfield permission to use air coursed through belt
conveyor entries to ventilate working places. ~/ MSHA's approval,
contained in an amended proposed decision and order issued on January
29, 1981, which became effective by operation. of law (i.e., was not
opposed), did not limit the velocity of air coursed through the belt

lf

There was a serious explosion in a combined belt/track entry of
the mine in 1983. Since 1983 the mine also has been evacuated a number
of times because of excessive methane.

~/

30 C.F.R. 75.326 states in pertinent part:
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 o.f methane, and such air shall not be used to
ventilate active working places ••..

2121

haulage entries for purposes of ventilating working places. MSHA
imposed various conditions, including the installation of an early
warning fire detection system based on monitoring carbon monoxide (the
"CO system"). }./
On August 21, _1986, Clinchfield, in a proposed amendment to the
modification, requested that the alarm levels of the CO system be raised
because its system was having problems with false alarms. MSHA granted
the request in a proposed decision and order issued February 10, 1987,
which became effective by operation of law. The modification was
subject to a number of conditions, however, including a limit of 300 fpm
on the velocity of air coursed through the belt entries to ventilate
working places.
On July 1, 1987, Clinchfield filed another proposed amendment to
the modification, requesting that the maximum velocity limit be
increased from 300 fpm to 1,200 fpm. As justification, it indicated
that there were large quantities of methane trapped in the coalbed of
the mine and that large quantities of air were required to dilute and
carry off the methane liberated during mining and from mined surfaces
after mining. Clinchfield alleged that the 300 fpm restriction would
allow methane to accumulate and result in a diminution of safety. MSHA
investigated the request and granted the petition on September 14, 1988,
in a proposed decision and order with conditions. No maximum velocity
limit was prescribed in the proposed decision and order.
On October 13, 1988, the UMWA filed a request with the Department
of Labor for a hearing on the proposed decision and order, challenging
elimination of the 300 fpm air velocity limit. The modification
proceeding was assigned to a Department of Labor administrative law
judge, and a hearing was scheduled to begin in that case on November 13,
1989.
On June 5, 1989, almost two years after Clinchfield had filed its
proposed amendment to increase the 300 fpm maximum velocity limit, MSHA
inspector James Baker issued a citation to Clinchfield alleging a
violation of 30 C.F.R. 75.326, as modified. The citation alleges that
the velocity of air being coursed over the belt entries was in excess of
300 fpm. Clinchfield was given until June 30, 1989, to abate the
violation alleged in the citation and was subsequently given an
extension to July 31, 1989. MSHA extended the abatement time set in the
citation on condition that Clinchfield request an expedited hearing on
the section lOl(c) modification petition seeking the increase in air
velocity in the belt conveyor entries. On June 21, 1989, Clinchfield
requested an expedited hearing on the section lOl(c) petition.
By August 1, 1989, Clinchfield had failed to abate the violation.
Inspector Baker then issued an order of withdrawal under section 104(b)
of the Mine Act. Specifically, this order prohibited activity in any
}./
The terms of MSHA's January 29, 1981 decision and order were not
implemented until 1983, some time after the 1983 explosion referred to
in n. 2, supra.

2122

working place that was ventilated with belt air velocities exceeding 300
fpm.
On August 2, 1989, Clinchfield filed its contest of the section
104(b) withdrawal order, challenging the validity of the order of
withdrawal, arguing -that compliance with the order's terms would result
in a diminution of safety to miners, and requesting expedited
proceedings. In addition, Clinchfield argued that the time set for
abatement of the order was unreasonable. On August 3, 1989, Clinchfield
filed a Motion for Temporary Relief from the withdrawal order, pursuant
to section 105(b) of the Mine Act, requesting extension of the time set
for abatement until the issues presented in the contest proceeding were
resolved. The judge subsequently granted the request for expedition and
the UMWA's request to intervene.
At the hearing before the judge on August 7-9, 1989, Clinchfield
took the position that compliance with the withdrawal order would result
in a diminution of safety. Clinchfield's independent consultant Donald
Mitchell testified that the 300 fpm ceiling represented an unacceptable
hazard to the health and safety of the miners in the mine. I Tr. 162,
177; III Tr. 127, 135. Clinchfield also argued before the judge that
lifting the 300 fpm ceiling would enhance safety since dilution of
methane would be facilitated. Accordingly, in Clinchfield's view, the
abatement time was unreasonable under the circumstances and should be
extended at least until the section lOl(c) proceeding could be heard.
The Secretary took the position that the 300 fpm ceiling may
result in a diminution of safety at the mine and that lifting the
ceiling would not adversely affect the safety of the miners. MSHA
inspector Baker testified that the 300 fpm velocity would not dilute the
methane liberated in the mine's belt entries to a safe amount, and that
to enforce the 300 fpm velocity "would pose a hazard." I Tr. 44, 51,
53. Baker also testified that additional velocity was necessary to
ventilate the faces. I Tr. 60. Baker stated that MSHA officials who
worked with him, including his immediate supervisor, subdistrict
manager, and district manager, agreed that the 300 fpm ceiling posed a
hazard. I Tr. 51-52. Additionally, MSHA District Manager/Supervisory
Mining Engineer Robert Elam testified that abatement of the violation
would result in diminution of safety to the miners in the mine,
indicating that the 300 fpm ceiling was inadequate to move methane out
of the mine and to dilute and render it harmless. I Tr. 79-80, 108,
116-17. Thus, in Elam's view, the 300 fpm ceiling diminished safety.
I Tr. 110, 126. See also III Tr. 61-62. Elam further testified that
increased velocity would help in methane dilution and benefit the mine.
I Tr. 124.
The Secretary introduced an affidavit by Jerry L. Spicer, MSHA
Administrator for Coal Mine Safety and Health, which states his belief
"that the safety of miners at the McClure Mine is enhanced by removing
the 300 fpm belt entry air velocity" MSHA-X 4. The Secretary stated
that the Commission could: (1) determine, pursuant to section 105(d) of
the Act, that the length of the abatement period was unreasonable and
modify or vacate the period; or (2) grant temporary relief from the
withdrawal order under section 105(b) of the Mine Act.

2123

The UMWA took the position that the 300 fpm ceiling did not result
in a diminut.ion of safety at the mine but that lifting the 300 fpm
ceiling would. The UMWA submitted that the 300 fpm ceiling was adequate
to dilute the.methane, especially in conjunction with other alternatives. UMWA international representative Thomas Rabbitt testified
that the 300 fpm ceiling could dilute and render harmless methane in the
most inby areas in the mine. II Tr. 93, 132-33. While the UMWA
implicitly conceded that increasing the air velocity would reduce
methane in the working sections, it argued that the adverse effects
resulting from the increase in velocity would, nevertheless, result in a
diminution of safety to the miners. Rabbitt testified that greater air
flow increases the oxygen available to fan a fire, and UMWA Deputy
Administrator for Safety Robert J. Scaramozzino agreed that high air
velocities would cause quick propagation of a fire. II Tr. 101, 155,
168. The UMWA's witnesses also emphasized that float coal dust
involving conveyor belt entries is one of the major fire and ignition
sources in a coal mine, and that high air velocities will pick the dust
up, suspend it in the air, and disperse it through the entry, thereby
aggravating the hazard. II Tr. 155-56, 163, 241, 249; III Tr. 23, 124.
UMWA Deputy Administrator in the Department of Occupational Health James
Weeks testified that a higher air velocity has the tendency to pick up
respirable dust. II Tr. 206-208, 220. UMWA witnesses also testified
that higher air velocity would dilute the carbon monoxide necessary to
activate the CO system and, as a result, a larger fire would be needed
to generate the necessary carbon monoxide, delaying the operation of the
sensing and warning system. I Tr. 221-22, 230-31, 249-50; II Tr. 102.
The UMWA also argued that there were a number of alternative
methods of methane control available to Clinchfield. These proposals
included increasing the number of entries, point feeding, increasing the
velocity in the intake entries, drilling degassification holes, putting
the track and belt in the next entry, changing the design for developing
longwall panels, staggering crosscuts involving roof support, and
inducing water into the coal seam.
The Secretary's witnesses rebutted the UMWA's positions by
pointing out that all mines are required to control respirable dust and
float coal dust, and that if control is inadequate enforcement
activities can be instituted by the Secretary. See 30 C.F.R. §§ 70.100,
75.316, and 75.400. II Tr. 218-19; III Tr. 35-36, 44, 56. It was also
stated that studies by the Bureau of Mines of the United States
Department of Interior indicate no expanded propagation of mine fires
when air velocities are increased to as much as 800 fpm. Tr. 107, 119;
II Tr. 154; MSHA-X 6. There was also testimony that the higher velocity
would actually lead to a more efficient CO detection system because the
product combustion would pass more quickly·from one sensor to the next.
Tr. 118; III Tr. 117, 120, 121. Moreover, the Secretary's witnesses
also stated that increasing the number of entries would cause roof
control problems in the mine. Tr. 90, 113; III Tr. 59. Finally, the
Secretary's and Clinchfield's witnesses tesified that the other
alternative methods of methane control proposed by the UMWA were either
impractical or ineffective.
After the presentation of concluding oral argument by the parties,

2124

Judge Brode~ick issued a bench decision, which he incorporated in his
written decision issued on August 30, 1989. Initially, the judge
indicated that, because he had heard "the entire testimony on the
merits," he was denying the motion for.section 105(b) temporary relief.
11 FMSHRC at 1569. The judge noted that Clinchfield did not deny that
the alleged violation existed. 11 FMSHRC at 1570. Rather, Clinchfield' s argument that the time set for abatement was unreasonable and
should be further extended was based upon its assertion that complying
with the standard would create a diminution of safety in the mine. The
judge stated that Clinchfield and the Secretary had submitted a
substantial amount of evidence that enforcement of the 300 fpm limit
would result in a serious danger of a methane fire or explosion and that
the UMWA had presented a substantial amount of evidence that exceeding
the 300 fpm limit would result in a serious danger of propagating any
belt fires and increasing float coal dust and respirable dust.
11 FMSHRC at 1571. The judge stated, however, that he did not have
jurisdiction to determine whether the belt entry air velocity
requirements should be increased or kept at the same level and that the
question before him was whether to affirm, vacate, or modify the
contested order. Id. The judge indicated:
... I am not in any way discounting or minimizing
the substantial safety issues raised by the
Intervenor, the United Mine Workers of America.
Neither am I attempting to weigh the evidence on
either side of the issue, which is the
responsibility of the authorities charged with
deciding the Petition for Modification.
Id.

However, the judge concluded as follows:
On the bases of the substantial evidence submitted
by [Clinchfield] Contestant and the Secretary, and
particularly that submitted by the Mine Safety and
Health Administration, which is the government
agency charged with enforcing the Act in the
interests of the safety of miners, and because there
is a pending petition for modification which is
intended to resolve the conflicting views relative
to safety and hazards presented by the belt entry
air velocity, I hereby order that [the section
104(b)] Order of Withdrawal ... is DISSOLVED.

*

*

*

I am ... ruling that in view of the Secretary's
position and the evidence introduced in support of
it, that complying with the contested citation and
order may result in a diminution of safety, and in
view of the pending petition for modification,
relief should be granted. I am granting it from the
terms of the order until this matter is submitted
for decision on the Petition for Modification.

2125

Id.
Accordingly, the judge vacated the contested withdrawal order and
modified the underlying citation by extending the time for its abatement
until "the date the hearing commences on the pending Petition for
Modification." 11 FMSHRC at 1572. As noted, we subsequently granted
the PDRs filed by both Clinchfield and the UMWA and heard oral argument.
The UMWA argues in its PDR that the judge erred by failing to make
the findings necessary to support his conclusion that the time for
abatement should be extended. The UMWA also asserts that even if the
judge did enter the necessary findings, substantial evidence does not
support them. UMWA PDR at 3-4. Accordingly, the UMWA requests that the
decision be reversed and the withdrawal order reinstated.
Further, noting that the effect of the judge's decision is to
allow Clinchf ield temporary relief from the requirements of section
75.326, the UMWA contends that the decision violates UMWA v. MSHA, 823
F.2d 608 (D.C. Cir. 1987), which, according to the UMWA, prohibits
temporary relief from the application of a standard, pending a decision
on a petition for modification. UMWA PDR at 5.
In its PDR, Clinchfield argues that the judge's decision does not
go far enough. First, the relief granted is inadequate, in that the
judge should have extended the abatement period until a final order is
issued in the modification proceeding. In the alternative, the
Commission should recognize a diminution of safety defense to the
alleged violation, find that Clinchfield established that defense, and
vacate the citation and order. C. PDR at 7-8.
Second, Clinchfield asserts that the decision is inconsistent with
the purposes of the Act because it does not protect the miners from the
hazards of compliance once the abatement period ends. Therefore, the
Commission should declare invalid the Secretary's policy of refusing to
extend further the abatement period and should grant Clinchf ield
declaratory relief to that effect. C. PDR at 8-13.
In its brief on review, the UMWA primarily argues that the judge's
decision must be reversed because the judge failed to make the findings
of fact and conclusions of law necessary to support his vacation of the
withdrawal order and his conclusion that the time for abatement should
be extended. The UMWA asserts that although the judge concluded, in
vacating the order, that complying with the contested citation and order
may result in a diminution of safety, he made no factual findings to
support that conclusion. UMWA Br. at 3-4. The UMWA alternatively argues
that, in any event, substantial evidence does not establish that
~ompliance with the cited standard will diminish safety because the
record contains testimony regarding ways Clinchfield can comply with the
300 fpm requirement without adversely affecting safety and because there
is. testimony that non-compliance increases the danger to miners in other
areas of the mine. UMWA Br. at 5, 8-10. Therefore, the UMWA contends
that the effect of the judge's decision is to grant temporary relief
without complying with the statutory requirements of section 105(b),
which requires a specific finding that if relief is granted, the health

2126

and safety of miners will not be adversely affected.
§ 815(b)(2)(C).
UMWA Br. at 10-11.

See 30 U.S.C.

In its briefing to the Commission, Clinchfield first asserts that
the relief awarded by the judge is inadequate to protect the health and
safety of the miners. Clinchfield argues that in light of the judge's
finding that limiting the belt air velocity to 300 fpm may create a
diminution of safety, it is illogical not to extend the abatement time
for the underlying citation until a final order is issued in the
modification case. C. PDR (designated as main brief) at 7. Clinchfield
also argues that the Commission should recognize a diminution of safety
defense to an alleged violation when the defense is necessary to avoid
subjecting miners to the greater hazards caused by compliance.
C. PDR at 8.
Finally, Clinchfield argues that, because the judge set the
termination date of the citation to coincide with the commencement of
the modification hearing, the probable result of his decision is that
Clinchfield will be faced with another closure order 11 and the parties'
attention will be refocused in the Review Commission forum. 11 C. PDR
at 9. To end the threat of duplicative litigation in separate forums,
the Commission should grant Clinchfield declaratory relief. Such relief
is not prevented by UMWA v. MSHA, supra, which only addresses the
validity of the Secretary's procedure for interim relief in a
modification proceeding under 30 C.F.R. § 44.16. C. PDR at 10.
Therefore, Clinchfield requests that the Commission: (1) extend the
abatement period until a final order is issued in the section lOl(c)
modification proceeding; (2) vacate the underlying citation on the
grounds that a diminution of safety is a defense to the violation; or
(3) grant temporary relief until a final order is issued in the
modification proceeding.
The Secretary in her brief asserts that in a contest proceeding,
the Commission may consider safety in determining whether an abatement
period is reasonable and, further, that the Commission may extend the
abatement time if it finds, based on the evidence before it, that
compliance will likely diminish safety. Sec. Br. at 9. However, once a
petition for modification proceeding commences, the Secretary's position
appears to be that the operator ought to seek interim relief in that
proceeding. The Secretary argues that MSHA did not err in refusing to
extend the abatement time because to do so would be, effectively, to
give Clinchfield temporary relief without the procedural safeguards
insisted upon by the Court in UMWA v. MSHA. Sec. Br. at 8.
However, the Secretary goes on to note that while the D.C. Circuit
in UMWA v. MSHA held that the Mine Act does not authorize the granting
of interim relief in a modification proceeding based upon a finding that
such relief will not adversely affect the health or safety of miners and
without providing the procedural safeguards required by section lOl(c),
the Court specifically stated that it was not deciding whether the
Secretary has the authority to grant interim relief when there is a
possibility that application of the standard will increase the danger to
miners. Sec. Br. at 5, citing 823 F.2d at 616 n. 6. The Secretary
points out that, following UMWA v. MSHA, the Assistant Secretary ruled

2127

in Utah Power and Light Co., slip op. at 8-9 (No 86-MSA-3, August 14,
1987), that MSHA has authority to grant interim relief where application
of a standard will result in diminution of safety to miners, provided
there is an opportunity for a hearing and/or appeal and provided interim
relief is of a limited duration. Sec. Br. at 5-6. Thus, Clinchfield
may seek interim relief in the section lOl(c) proceeding in accordance
with the UP&L guidelines, but the Secretary notes that the operator has
not yet done so. Sec. Br. at 7.
It is also important to note that the Secretary states that before
the judge, MSHA offered evidence that application of the mandatory
standard of the mine would diminish safety. However, the Secretary now
avers that she "takes no position on that issue." That question r_emains
to be litigated and decided by the Secretary in the course of the
pending section lOl(c) modification proceedings. Sec. Br. at 8 n. 2.
II.

Disposition of Issues
We cannot improve upon the introductory observation in Judge
Broderick's decision that "the overriding value in the Mine Act is the
health and safety of the miners, and all Commission decisions interpreting the Mine Act have to keep that overriding value foremost."
11 FMSHRC at 1569. See 30 U.S.C. § 801(a). With that statutory
objective as our guide, we conclude that the Commission possesses
jurisdiction, in appropriate circumstances, to extend the time for
abatement of a cited violation, upon reasonable terms and conditions,
while a petition for modification of the cited standard is being
considered by the Secretary pursuant to section lOl(c) of the Act. We
further determine that the Secretary also possesses ample enforcement
discretion to extend the time for abatement under such circumstances.
Finally, we conclude that substantial evidence supports the judge's
decision to extend the time for abatement in this matter, although we
modify the terms of that extension as set forth below.
We turn first to the jurisdictional question. We note that the
Secretary, whose interpretations of the statute, if reasonable, are
entitled to deference, takes the position that the Commission has
jurisdiction to extend the time for abatement under the kind of
circumstances presented by this case. We also note that the UMWA has
not asserted that we lack such jurisdiction.
In a contest of a section 104(b) withdrawal order issued for
failure to abate a cited violation, the operator, as here, may challenge
· the reasonableness of the length of time set for abatement or the
Secretary's failure to extend that time. See,~' Old Ben Coal Co.,
6 IBMA 294, 306-307 (1976); U.S. Steel Corp., 7 IBMA 109, 116 (1976);
Youghiogheny & Ohio Coal Co., 8 FMSHRC 330, 338-39 (March 1986)(ALJ)
("Y&O"). A considerable body of precedent, arising under the 1969 Coal
Act and continuing under the Mine Act, has recognized that in such
contests, the degree of danger that any extension of abatement time
would cause miners is a relevant factor to be assessed in judicially
approving such an extension. See, ~' Y&O, supra. In a similar vein,

2128

under the .1969 Coal Act, the Interior Board of Mine Operations Appeals
("Board") held that an operator's filing of a petition for modification
"should be a major consideration in determining the reasonableness of
the time set for abatement of any alleged violation which relates to the
••. standard sought to be modified." Reliable Coal Corp., 1 IBMA 97,
113 (1972). The Board indicated that the time set for abatement of an
alleged violation could be extended in an enforcement contest during the
pendency of a separate modification proceeding upon a showing by the
operator, inter alia, that the petition for modification was filed in
good faith, and not for the purpose of postponing or avoiding abatement,
and that during the period of the abatement extension "the health and
safety of the miners will be reasonably assured." Reliable, supra.
This precedent focuses primarily on the dangers of continued noncompliance with a cited standard during a period of abatement and not,
directly at least, on the related question of whether compliance with
the cited standard may pose hazards to miners. The latter subject lies
at the heart of any petition for modification based on a claim that
"application of [a] standard to [a particular] mine will result in a
diminution of safety to the miners in such mine." 30 U.S.C. § 811(c).
We also recognize that Reliable arose under the 1969 Coal Act, when both
enforcement and modification jurisdictions were held within the same
governmental Department. Nevertheless, we find it a reasonable
construction of the relevant statutory language and an appropriate
harmonizing of the modification and enforcement processes under the Mine
Act to conclude that a challenge to the reasonableness of abatement time
may be grounded upon the relative hazards to miners stemming from either
immediate or deferred compliance with a cited standard.
Specifically, where an operator has filed a modification petition
premised upon diminution of safety with respect to application of a
standard, we conclude that the broad concept of the "reasonableness" of
the time set for abatement of the violation of the cited standard may
appropriately encompass in a contest proceeding an assessment of the
relative hazards to miners of immediate compliance or an extension of
abatement time. In this regard, we assign considerable weight to the
construction of the Act urged on review by the Secretary. See, ~'
Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 537 (D.C. Cir.
1986), citing Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1552 (D.C.
Cir. 1984). In her brief the Secretary aptly states:
An operator does have a right ... to contest
before the Commission a section 104(b) failure to
abate withdrawal order and reasonableness of the
abatement time set in a section 104(a) citation. In
such a contest, a full record hearing is afforded
the parties, with the right of appeal to the
Commission and the courts.
It is the Secretary's position that in
adjudicating the reasonableness of abatement time in
a case where the operator also has a modification
petition pending with the Secretary under section
lOl(c), the Commission may appropriately extend the

2129

abatement time if it finds from the record evidence
before it a likelihood that safety of miners would
be diminished by compliance with the cited mandatory
standard. The purpose of the Mine Act is to protect
miners. In determining whether an abatement period
is reasonable, it is certainly proper for the
Commission·· to take into account miner safety and
provide adjudicatory relief accordingly under
section 105(d). In so doing, the Commission will be
acting upon record facts developed after a full
opportunity for a hearing to all parties, including
those opposing the relief, with rights of any
aggrieved party to seek administrative and judicial
review. Action by the Commission in this regard
would not, therefore, be contrary to otherwise
expressed congressional intent.
Sec. Br. at 8-10 (footnotes omitted).
This approach is a sensible harmonizing of the separate enforcement and modification processes in the Mine Act. Although the Mine Act
allocates to the Secretary the judicial authority to hear and decide
modification petitions, it reserves to the Commission the judicial
authority to resolve enforcement contests involving the reasonableness
of abatement time. Where a modification petition has not been finally
decided, a situation may arise -- and, as explained below, we conclude
that this case presents that situation -- where, because of the hazards
posed by immediate compliance, extension of abatement time is called for
in order to protect the safety of miners. Given the Act's bifurcated
structure in this area, this conclusion represents, in our judgment, a
logical extension of the Reliable doctrine.
This conclusion does not conflict with the Commission's decisions
in Sewell Coal Co., 5 FMSHRC 2026 (December 1983), and Penn Allegh Coal
Co., 3 FMSHRC 1392 (June 1981). In those decisions, the Commission
held, in general, that diminution of safety may not be raised as a
defense to violation in an enforcement proceeding unless the Secretary
has first entered a finding of such diminution in a modification
proceeding. See Sewell, 5 FMSHRC at 2029. These decisions stand for
·::he general proposition that the proper forum for raising and resolving
the issue of diminution of safety is a modification proceeding. The two
decisions also manifest a view that the Commission must not infringe
upon the Secretary's jurisdiction in a section lOl(c) modification
proceeding. However, Sewell specifically left open resolution of
whether a diminution of safety defense ought to be recognized in "the
s:_·::uation where an enforcement proceeding has been heard before the
:?etition for modification has been finally resolved .... " 5 FMSHRC at
2030 n.3. While these two decisions preclude any purported resolution
in an enforcement proceeding of a modification petition based upon
diminution of safety per se, we do not view them as barring the
Commission from weighing the hazards to miners of compliance vs. noncompliance within the context of an extension of abatement time contest.
?he Mine Act also clearly contemplates in its enforcement

2130

structure that situations may arise where temporary or other appropriate
relief from a withdrawal order is warranted in furtherance of safety and
health. Thus, section 105(b)(2), 30 U.S.C. § 815(b)(2), permits an
operator to seek "temporary relief" from any order issued under section
104 based upon a showing, in part, that "such relief will not adversely
affect the health and safety of miners." To similar effect, section
lOS(d) of the Act, 30 U.S.C. § 815(d), permits the Commission, in
deciding contests of citations and orders, to "direc[t] other
appropriate relief." These provisions are congruent with the result
reached today.
Therefore, taking particular account of the Secretary's views in
this case, we hold that an operator may challenge the reasonableness of
the time fixed for abatement, and the Commission may, in appropriate
instances, extend it, upon a showing that: (1) the operator has, in good
faith, filed a petition for modification of the cited standard based on
its belief that application of the cited standard will diminish the
safety or health of miners; and (2) the hazards of immediate compliance
outweigh any hazards associated with deferral of the time for abatement.
We emphasize that it is not the Commission's province to attempt any
determination of the central issue in the modification proceeding,
namely, whether application of the standard in the particular mine will
result in a "diminution of safety." Plainly, the inquiry we approve
today will involve similar issues, but the context here pertains only to
the enforcement question of whether a particular time for abatement may
reasonably be extended in light of the relative hazards posed to miners.
In view of the general teaching of Penn Allegh and Sewell, we further
hold that any extension of abatement time must be of reasonable duration
and must not infringe upon the orderly procedures of the modification
process. We do not read any provision of the Mine Act as specifically
prohibiting this result. Rather, we conclude that, as a matter both of
reasonable statutory construction in an area in which the Act is silent
and of our development of sound policy under the Act (~ 30 U.S.C.
§ 823(d)(2)(A)(ii)(IV) & (B)), this determination best effectuates miner
health and safety and harmonizes the separate modification and
enforcement processes.
The UMWA argues that UMWA v. MSHA prohibits any Commission action
that, in effect, amounts to modification of a mandatory standard outside
section lOl(c) channels. We disagree. First, that decision expressly
left open the question of the Secretary's power in modification
proceedings to grant interim relief from application of a mandatory
standard "when there is a possibility that application of the standard
will increase ... danger to the miners" or when an emergency situation
obtains. 823 F.2d at 616 n. 6. The modification decision of the
Assistant Secretary of Labor in Utah Power & Light Co., No. 86-MSA-3
(petition for modification proceeding)(August 14, 1987)("UP&L"), holds
that, indeed, the Secretary may provide such inter~m relief in the
context of a diminution of safety resulting from compliance or in an
emergency situation, so long as appropriate procedural due process
safeguards are provided for all parties. We would go further for we
believe that the Secretary, under these circumstances, has an obligation
to grant "interim relief" and not compel compliance even when, as in
this case, the operator fails to seek interim relief in the modification

2131

proceeding .. ~/ Consistent with both UMWA v. MSHA and UP&L, Clinchfield
continues to have the opportunity to seek interim relief in the pending
modification proceeding and the Secretary has authority to grant such
relief as may be appropriate in the modification forum.
Second, and more to the point, UMWA v. MSHA does not purport to
address the power of.the Commission to consider an extension of the time
set for abatement in a citation or, pursuant to section 105(b) of the
Act, temporary rel~ef from a section 104(b) withdrawal order. We
conclude that UMWA v. MSHA, by itself, does not preclude the Commission
from considering hazard-of-compliance issues in the context of an
abatement time contest. The central concern of the Court in that case
was what it viewed as the lack of due process attendant upon interim
relief in the modification forum. See 823 F.2d at 617-19. Here, by way
of contrast, any extension of the time for abatement in the enforcement
forum would occur only after notice and adjudicative hearing with appeal
rights to the Commission and courts of appeals.
All that we have said leads to a concomitant conclusion that the
Secretary also possesses enforcement discretion to extend the time for
abatement if she believes it reasonable in light of the relative hazards
posed to miners. Indeed, the Secretary exercised that discretion by
initially allowing 25 days for abatement and then extending the
abatement period by an additional 31 days. The Act specifically
reserves to the Secretary the power to set initially a reasonable time
for abatement. 30 U.S.C. §§ 814(a) & (b). UMWA v. MSHA
does not
address this matter, and upon the same grounds articulated above, we
hold that, in appropriate cases, the Secretary may extend abatement time
to permit the orderly disposition of related modification proceedings.
We are puzzled as to why the Secretary departed from that path in the
present case. We also note that any such action may be contested by the
appropriate representative of miners. Upon a showing that the hazards
of any extension outweigh any hazards of compliance, the extension would
be subject to disapproval by the Commission.
We now apply these principles to review of the judge's decision.
We concur with the judge's refusal to grant Clinchfield section 105(b)
temporary relief because we are prepared to rule on the merits of
Clinchfield's challenge to the reasonableness of abatement time. The
judge properly premised his actions upon Clinchfield's filing of a
modification petition. 11 FMSHRG at 1571. He also appropriately
declined to advance any purported resolution of the underlying merits of
Clinchfield's modification petition. 11 FMSHRC at 1570-71. While the
judge spoke in terms of diminution of safety, it is clear from his
decision that he examined the relative hazards of immediate compliance
vs. extension of abatement time.
It is true that at one point, the judge stated that he was
refusing to weigh the evidence on the safety question. 11 FMSHRC at
1571. That statement, however, must be read in proper context. The
~/

Clinchfield has also utterly failed to explain adequately why it
never sought interim relief in the pending modification proceeding.

2132

judge had already indicated that he was not purporting to resolve the
merits of Clinchfield's modification petition, and we read
his "refusal to weigh" language as an extension of that position. He
did conclude, however, that "in view of the Secretary's position and the
evidence introduced in support of it, : •. complying with the contested
.•• order may result_in a diminution of safety, and in view of the
pending petition for-modification, relief should be granted." 11 FMSHRC
at 1571. While we disapprove the formulation of this result in
diminution of safety terms, we conclude that the judge did, in fact,
weigh the relative hazards and determine that an extension of abatement
best promoted safety in this case.
underlyin~

Although the judge's failure to identify more specifically the
evidence of the hazards upon which he relied is troubling, the evidence
in question, presented by both the operator and the Secretary, has been
summarized above. In essence, it shows that permitting Clinchfield a
higher fpm ceiling will result in improved methane dissipation and that
enforcement of the 300 fpm ceiling could fail to achieve necessary
methane dilution. We have carefully examined the record and conclude
that the evidence of the operator and Secretary in this regard affords
substantial support to the judge's ultimate disposition.
Like the judge, we also acknowledge the UMWA evidence showing a
level of hazard associated with any raising of the 300 fpm ceiling.
However, the nature of the judicial inquiry in this context involves a
weighing of the relative hazards. We are not prepared to conclude that
the judge erred in assigning decisive weight to the evidence of the
Department of Labor, the agency charged with the responsibility of
enforcing the Ac.t and protecting the safety and health of miners.
Finally, we conclude that the extension of time for abatement
shall run until the Department of Labor administrative law judge
presiding in the modification proceeding rules upon the diminution of
safety issue. In our judgment, this approach to extension best respects
the separate modification jurisdiction of the Secretary and best
facilitates prompt resolution of the major issue dividing the parties -a determination in the modification forum of whether application of the
cited standard at Clinchfield's mine will result in a diminution of
safety.

2133

III.

Conclusion
For the foregoing reasons and on the foregoing bases, the decision
of the judge is affirmed. The time for abatement of the cited violation
is hereby extended as explained above. ~/

~~

~~~~~k
~d-~
JOyCeA:l){;yle, ColTIJlliSSier

~/

Commissioner Nelson did not participate in the consideration or
disposition of this case.

2134

Commissioner Lastowka, concu_rring in part and dissenting in part:
This Commission has.jurisdiction over Clinchfield Coal Company's contest
of the withdrawal order issued by the Secretary of Labor for Clinchfield' s
failure to abate a violation within the period of time set in a previously issued
citation. 30 U.S.C. § 815(d). The Commission lack~ jurisdiction, however, over
the question of whether application of the cited standard at Clinchfield's mine
results in a diminution of safety to the miners at the mine. 30 U.S.C. §811(c).
That question is expressly reserved by the Mine Act to the Secretary of Labor.
Id. Because the administrative law judge and the majority, under the guise of
reviewing the reasonableness of the abatement period set by the Secretary,
effectively resolve the diminution of safety issue raised by Clinchfield and
thereby improperly thrust themselves into the modification proceedings ongoing
before the Department of Labor, I must dissent.
I. The Reasonableness of the Abatement Period
Section 104(a) of the Mine Act provides that a citation issued by the
Secretary 11 shall fix a reasonable time for the abatement of the violation"
alleged in the citation. 30 U.S.C. § 814(a) (emphasis added). Section 104(b)
provides that if on subsequent inspection the Secretary finds:
( 1) that a violation described in a citation issued pursuant to
subsection (a) has not been totally abated within the period of time
as originally fixed therein or as subsequently extended, and (2)
that the period of time for the abatement should not be further
extended, he shall
promptly issue an order requiring the
operator ••• to immediately cause all persons .•. to be withdrawn
.•• until .•• the Secretary determines that such violation has been
abated.
30 U,S.C. § 814(b) (emphasis added).
In the present case the Secretary issued a citation charging a violation
of 30 C.F.R. § 75.326, as modified by the Secretary. The citation charged that
the air velocity in Clinchfield's belt entry exceeded the 300 feet per minute
( fpm) limit imposed on Clinchf ield by the Secretary in conjunction with a
previously granted modification of section 75. 326.
As issued, the citation
provided a 25 day period in which compliance with the 300 fpm limit was to be
accomplished.
The Secretary subsequently extended the abatement period to
provide an additional 31 days in which Clinchfield was to abate the violation.
Upon expiration of the extended period for abatement set by the Secretary, the
violation was found to still exist and the Secretary proceeded to issue a
failure to abate withdrawal order pursuant to section 104(b). This withdrawal
order is the order contested by Clinchf ield and in issue before the Commission.
Where a mine operator contests a failure to abate withdrawal order, the
Secretary must prove: 1) the existence of a previously issued citation charging
a violation of a mandatory standard, 2) that a reasonable time for abatement of
the violation had been provided, 3) the time for abatement had expired, and 4)
the violation had not been abated. In the hearing before the administrative law
judge the Secretary proved, indeed it was undisputed, that Clinchfield failed

2135

to comply with the applicable standard (element 1), the time set by the
Secretary for abatement had passed (element 3), and the violation had not been
abated (element 4). As to the reasonableness of the period of time fixed in the
citation for abatement-of the violation (element 2), however, the Secretary's
witnesses testified that it was their belief, and that of their supervisors,
that abatement of the violation would create a hazard to miners. Thus, far from
attempting to establish that the period of time set for abatement of the
violation was reasonable, the totality of the Secretary's evidence was that
Clinchfield's compliance with the standard would create a hazard, and that in
the interest of safety abatement should not occur.
,
Thus, at the hearing on Clinchfield's contest of the withdrawal order the
position of the Secretary, as presented by her witnesses and as summarized by
counsel (III Tr. 137-40), was that although MSHA cited Clinchfield for a
violation of the standard and shut the mine' s operations down because the
violation was not abated, Clinchfield's compliance with the order issued by the
Secretary will actually threaten the safety of miners.
At this juncture, one might logically ask why MSHA, charged with the duty
to enforce the Mine Act for the protection of miners, would nonetheless proceed
to initiate enforcement action that MSHA believes will, in and of itself, create
a serious safety hazard. MSHA's answer is that it is required to do so, that
it is powerless to do otherwise, and, in effect, that this Commission must step
in, as did the judge, to save MSHA, Clinchfield and the miners from the
deleterious consequences of MSHA's enforcement actions.. I must reject this
anomalous result and the theories that underpin it.
The Commission is a creature of statute and its adjudicatory powers are
derived from Congress' grant of authority to it. Kaiser Coal Corp., 10 FMSHRC
1165, 1169 (September 1988).
Congress has empowered the Commission with
authority to adjudicate various types of enforcement disputes arising among the
Secretary of Labor, mine operators and miners. One type of dispute over which
the Commission has jurisdiction concerns whether the period of time the
Secretary has provided for abatement of a violation is reasonable.
Mine
operators as well as miners may'contest the period for achieving compliance with
a standard as being unreasonably short or unreasonably long. 30 U.S.C. §815(d).
Conversely, Congress empowered the Secretary, not the Commission, with the
authority to determine whether the terms of a mandatory standard adopted by the
Secretary should be modified insofar as the standard applies to the operations
at a particular mine. 30 U.S.C. § 811(c); Penn Allegh Coal Co., 3 FMSHRC 1392
(June 1981) (disallowing diminution of safety defense in enforcement proceeding
where modification petition would have been appropriate but had not been filed);
Sewell Coal Co., 5 FMSHRC 2026 (December 1983) (recognizing diminution of safety
defense in an enforcement proceeding where Secretary had concluded modification
proceedings and had granted modification).
In the present case, at the hearing before the Commission the parties
framed the issue presented by Clinchfield's contest of the withdrawal order as
being a challenge to the reasonableness of the 56 day period prescribed by the
Secretary for abatement of the violation of 30 C.F.R. § 75.326. Clinchfield
argued that the abatement period should be extended because compliance would
create a hazard to miners. III Tr. 141-42. The Secretary shared Clinchfield's

2136

concern that abatement would diminish safety and indicated that, if the judge
were to find that the abatement period set by the Secretary should be extended,
the Secretary would not oppose the judge's action even though MSHA would not
extend the period itself. III Tr. 137-40. The UMWA, on the other hand, argued
that the question of diminution of safety is to be decided only in a section
lOl(c) modification proceeding before the Secretary. Tr. 37. The UMWA further
argued that abatement of the violation would be safe and that the abatement
period set by the Secretary was reasonable. III Tr. 143.
In his decision the judge recognized the Department of Labor's
jurisdiction over the issue of whether the standard should be modified but, in
view of the Secretary's evidence and assertions before him, concluded that an
extension of the abatement period was warranted. Thus, by necessary implication
the judge found the abatement period prescribed by the Secretary in the citation
to be unreasonable. Also, in light of his extension of the abatement period the
judge vacated the failure to abate withdrawal order. The majority here affirms
the judge's extension of the abatement period and vacation of the withdrawal
order.
The judge and the majority err in granting relief in this case on the
purported basis that the Commission is exercising its authority under section
105(d) to review the reasonableness of the abatement period set by the
Secretary. T.he problem with this basis for granting relief is that the actual
dispute between the parties most assuredly is not over whether the Secretary
provided Clinchfield with a reasonable opportunity to abate the violation by
bringing its mine into compliance with the cited standard.
Quite to the
contrary, as the record clearly reflects, Clinchfield's sole argument, not
opposed by the Secretary, is that compliance with the standard, whether within
the 56-day period provided by the Secretary or some greater period of time,
would result in creation of a hazard and, therefore, compliance should not be
required at all.
Thus, rather than being a dispute as to whether the period of time fixed
by the Secretary for "totally abat[ing]" the violation (30 U.S.C. § 814(b)) is
reasonable, what Clinchfield and the Secretary have presented to the Commission
is the entirely different question of whether compliance with the standard would
diminish safety. This is a pure section lOl(c) modification issue within the
jurisdiction of the Secretary, not the Commission, rather than a properly
founded challenge under section 105{d) to the reasonableness of the abatement
period. By "weighing the relative hazards" of compliance versus noncompliance
and concluding that an extension of· the abatement period is warranted, the
majority improperly resolves the diminution of safety issue. 1 Therefore, insofar
as the majo.ri ty affirms and modifies the judge's extension of the abatement
period, I dissent.

What's in a name? That which we call a rose
By any other name would smell as sweet •.
Shakespeare, Romeo and Juliet, Act II, Scene ii.

2137

II. The Secretary's Authority
Before us the Secretary identifies two factors purportedly forcing MSHA
to seek Commission relief from the undesirable safety effects caused by its
enforcement actions, rather than acting on its own to rectify the problem.
First, and primarily, it is claimed that the opinion of the U.S. Court of
Appeals for the District of Columbia Circuit in Intern. Union, UMWA v. MSHA,
823 F.2d 608 (D.C. Cir. 1987}, forecloses MSHA from itself presently providing
Clinchfield any relief in order to avoid the danger caused by compliance with
MSHA's order. Second, the Secretary asserts that she is constrained by the Mine
Act itself to proceed precisely as she has in the present case. As discussed
below, the Secretary's reliance on UMWA v. MSHA as justification for MSHA' s
actions is misplaced. That decision did not address the situation now before
us and does not foreclose action by the Secretary. Further, the Secretary's
reliance on MSHA's duties under the Mine Act as explanation for its actions also
deserves careful consideration before the anomalous result it leads to is
endorsed.
A. The Decision in UMWA v. MSHA
In UMWA v. MSHA, the D.C •. Circuit concluded that, under the facts of the
case before it, the procedures the Secretary had followed in granting indefinite
interim relief from enforc"ement of a mandatory standard during the pendency of
a petition for modification of the application of a mandatory standard exceeded
the Secretary's statutory authority under section lOl(c) of the Mine Act. 30
U.S.C. §81l(c). The court stated:
The real issue in this case is whether the Secretary may grant
a modification of a mandatory safety standard, without regard to the
requirements of section lOl(c} of the Mine Act, without an
opportunity for a hearing, upon three days' notice to the affected
miners, over the opposition of those miners, on the basis of a oneparagraph explanation which does nothing more than paraphrase the
challenged regulation, and with no provision for a right to appeal
that decision. We think not.
823 F.2d at 617. The court was careful, however, to explain the limits of its
holding concerning the Secretary's ability to provide interim relief during the
pendency of a petition for modification:
We do not decide
whether the Secretary would have authority to
grant interim relief from a mandatory safety standard when there is
a possibility that application of the standard will increase the
danger to the miners. Nor do we decide whether the Secretary would
have this authority in an "emergency" situation. Because the basic
purpose of the Mine Act is to protect the miner ..• this type of
situation would present a more difficult issue. Section 44.16(c),
however, by its terms is not meant to address this type of

2138

situation. The only finding regarding the safety of the miner that
is required by § 44.16( c) is that- "the requested relief will not
adversely af feet the heal th or safety of miners in the affected
mine."
823 F.2d at 616 n.6. The court further observed, ''[a]gain, we do not decide
whether the Secretary has inherent power to grant interim relief if essential
to further the purposes of the Mine Act or under other compelling
circumstances." Id. at 619 n.8.
Thus, by the express terms of its decision the D.C. Circuit did not rule
that the Secretary lacked the ability to grant interim relief in compelling
circumstances, not presented by the case before it, including situations where,
due to particular conditions existing at a specific mine, enforcing a standard
would increase the danger to miners. Before the Commission, the Secretary has
acknowledged the court's limitation of its holding concerning the Secretary's
authority to grant interim relief. Sec. Br. at 5. Furthermore, the Assistant
Secretary for Mine Safety and Health has ruled, subsequent to the court's
decision in UMWA v. MSHA, that MSHA still possesses authority to grant interim
relief in "cases where the application of the standard would result in a
diminution of safety to miners , or in emergency situations." Sec. Br. at 6,
quoting Utah Power & Light Co., 86-MSA-3 (August 14, 1987), slip op. at 8-9.
The Assistant Secretary stated:
Regarding the UMWA' s challenge to the validity of the Agency
interim relief rules, the D.C. Circuit's decision in the Kaiser and
UP&L cases has caused the Agency to reevaluate its interim relief
procedures.
The Court specifically did not address the question
of "whether the Secretary would have authority to grant interim
relief when there is a possibility that application of the standard
will increase the danger to the miners," ••• or "in an emergency
situation." I have concluded that the Agency has authority to grant
interim relief in such circumstances so long as
appropriate
procedural safeguards are provided for all parties. While noting
the issue of the authority of the Secretary in emergency situations
was not fully addressed by the Court, this conclusion ensures that
prudent and timely relief will be available in instances where the
safety of miners is in jeopardy.

***

UP&L, supra, slip op. at 7-8 (footnotes omitted).
Here, in July 1987 Clinchfield requested that the Secretary modify the
cited standard on the ground that compliance would diminish miner safety. In
September 1988, the Administrator for Coal Mine Safety and Health approved the
modification. 2 The UMWA contested the Administrator's decision in October 1988.
2

The Administrator's decision makes no reference to the diminution of
safety grounds advanced by Clinchfield in support of its petition for
modification. Instead, the Administrator stated that the alternative method of
compliance approved in the modification "will at all times guarantee no less than
the same measure of protection afforded by the standard." Ex. U-2.
As the

2139

Almost two years after Clinchfield's assertion that compliance would diminish
safety, and nine months after the Administrator's decision to grant the
modification, MSHA nevertheless proceeded to issue a citation for failure to
comply with the disputed standard, and a withdrawal order for failure to abate
the violative condition.
Al though the reason for MSHA' s decision to issue a citation at this
juncture is unexplained, its motivation for issuing the withdrawal order is
clearly set forth in the record.
In presenting oral arguments to the judge
below, counsel for the Secretary explained:
As has been testified by our witnesses, and also stated by Mr.
Jerry Spicer, the Administrator for Coal Mine Safety and Health, in
an affidavit that was submitted in evidence, he felt he could go no
further as far as extending the abatement period on that citation.
That is under the decision of [UMWA v. MSHA] that to do so would
amount to interim relief of a petition for modification.
So therefore, it was his decision and he made that decision known
to the district level ..• that he had no authority to continue any
abatement period on that citation, even though it was recognized by
the inspector and district manager and Mr. Spicer in his affidavit
indicated, that to go higher than the three hundred feet per minute
would not pose a threat to the safety of the miners. As was stated
by the testimony here by our witnesses and other witnesses, in fact,
there could be a diminution of safety to the miners if that velocity
cap is not lifted.
III Tr. at 138. The affidavit of the Administrator for Coal Mine Safety and
Health referred to by counsel states:

*** 7.

I did not authorize a further extension of abatement time
because to do so would have been tantamount to unilaterally granting
Clinchfield interim relief from the responsibility to comply with
the 300 fpm belt entry air velocity limit specified by the granted
petition for modification. In making this decision, I was aware of
legal advice I have received concerning the decision in UMWA v. MSHA
et al., 823 F.2d 608 at 618, and the temporary relief provisions of
section 105(b)(2) of the Act, 30 U.S.C. 815(b)(2). See also UMWA
v. MSHA, supra at 618.

Secretary's witnesses made clear at the hearing before the Commission judge,
however, compliance with the cited standard would be hazardous. Tr. 44, 51-53,
79-80, 108-10, 116-17; see also III Tr. 61-62. Consequently, granting a
modification on the basis that the alternative method is at least as safe as the
present method makes little sense when that method is dangerous. Therefore, the
Administrator's decision is more sensibly read to accord with the views of the
Secretary's witnesses and the position expressed by counsel for the Secretary
at the hearing before the judge that compliance with the cited standard would
diminish safety. See, e.g., III Tr. at 138.

2140

*** 9. As evidenced by the proposed decision and order of September

14, 19&8 [the Administrator's decision granting modification], and
supporting technical information, I believe that the safety of
miners at the McClure No. 1 Mine is enhanced by removing the 300 fpm
belt entry air velocity limit.
MSHA Ex. 4.

Thus, the express reason and seemingly sole motivation for MSHA' s issuance
of the disputed withdrawal order is that MSHA was precluded from doing otherwise
by the court's opinion in UMWA v. MSHA.
Because by its express terms that
decision in fact does not so constrain the Secretary, the basis of MSHA's order
requiring Clinchfield to comply with a standard that MSHA believes will create
a hazard is removed, and the order therefore was improperly issued, constitutes
an abuse of discretion and, accordingly, must be vacated.
B. The Requirements of the Mine Act
The Secretary also suggests that issuance of the underlying citation and
the withdrawal order was required because the operator was in noncompliance with
the terms of a mandatory safety standard and had failed to abate the violation
within the time provided. Sec Br. at 6-7. Therefore, even though the inspector
characterized the violation as "technical" in nature (Tr. 44), and found that
the violation was not "significant and substantial" i.e., i t was not reasonably
likely to result in an injury of a reasonably serious nature, the Secretary
insists that under the Mine Act MSHA was required to initiate enforcement
proceedings to achieve compliance even though to do so would result in the
creation of a more serious hazard.
Although the Secretary usually is not reticent to claim that the
Commission and the courts must give wide latitude to MSHA's enforcement
discretion, she disavows here any possibility of even a limited amount of
discretion enabling MSHA to refrain from taking enforcement actions that it
believes threatens those whose safety MSHA is charged with protecting. I find
it di ff icul t to accept that the Mine Act must be interpreted in such a
counterproductive manner. As has been stated:
It has been called a golden rule of statutory interpretation that
unreasonableness of the result produced by one among alternative
possible interpretations of a statute is reason for rejecting that
interpretation in favor of another which would produce a reasonable
result. It is a "well established principle of statutory
interpretation that the law favors rational and sensible
construction." It is fundamental, however, that departure from the
literal construction of a statute is justified when such a
construction would produce an absurd and unjust result and would
clearly be inconsistent with the purposes and the policies of the
act in question.
2A Sutherland Statutory Construction § 45 .12 (4th ed. 1984) (footnotes and
citations omitted)~

2141

I recognize that the Mine Act by its terms does not give the Secretary
broad discretionary authority to selec-tively enforce mandatory standards.
Indeed, section 104(a} provides that if "the Secretary ••• believes that an
operator ••• has violated this Act ••• he shall ••• issue a citation to the
operator." 30 U.S.C. § 814(a). Nevertheless, even though a decision by MSHA to
refrain from citing an operator for a violation may not be the type of
determination "committed to agency discretion by law" (5 U.S.C. § 70l(a)(2);
see Heckler v. Chaney, 470 U.S. 821 (1985)), it may still be appropriate, in
extremely narrow circumstances, to recognize a carefully bounded discretion
permitting the Secretary to consider the adverse safety effects on miners that
would result from rote enforcement of a particular standard. See UMWA v. MSHA,
823 F.2d at 615 n.5, 616.
For example, in the circumstances of the present case where the mine
operator has filed a petftion for modification based on diminution of safety,
the Secretary's enforcement personnel and technical experts agree that
enforcement of the standard will diminish safety, the Administrator has granted
a modification from the standard's application and expedited proceedings in
review of that determination are being conducted, MSHA should not be compelled
to force the operator to take the very action that MSHA believes will create a
hazard to miners.
Recognition of such a carefully limited authority is particularly
compelling in light of the standard at issue here.
The 300 fpm velocity
requirement in dispute was not mandated by Congress or promulgated by the
Secretary through rulemaking. Rather, the 300 fpm requirement was unilaterally
imposed on Clinchf ield by the Administrator as part of a prior modification of
30 C.F.R. § 75.326 granted in February 1987. From January 1981 up until that
time, no velocity ceiling had been imposed. Further, under the Administrator's
presently proposed decision no velocity limit would be imposed in the future.
Thus, the very condition that MSHA presently believes threatens miner safety is
the result of unilateral action taken by MSHA in the first instance. Surely,
MSHA must have the power to act in this circumstance to provide relief from the
hazard its prior action has caused
I recognize that the Assistant Secretary for Mine Safety and Health has
ultimate responsibility for determining whether to grant or deny Clinchfield's
petition for modification after all parties, including the UMWA who strenuously
opposes the petition, have been given an opportunity to be heard. A decision
to not enforce an MSHA-imposed condition now believed by MSHA to be unsafe
pending resolution of the expedited modification proceedings would not prejudice
the Assistant Secretary's responsibilities in the modification context. Under
the Mine Act the Assistant Secretary has enforcement as well as modification
duties and both of these responsibilities must be exercised so as to protect the
health and safety of miners.
III. Conclusion
For these reasons, I conclude that the real basis for Clinchfield' s
request for relief is not section 105(d)'s grant of authority to the Commission
for review of the reasonableness of the abatement period set by the Secretary,
but section lOl(c)'s grant of authority to the Secretary to modify a standard
2142

that diminishes the safety of miners. Therefore, I dissent from the majority's
affirmance of the administrative law judge's extension of the abatement period.
I concur in result, however, with the majority's affirmance of the judge's
vacation of the failure to abate withdrawal order.
In my view, under the
circumstances of this case, the withdrawal order was improperly issued given
the Administrator's erroneous belief that he was compelled to initiate
enforcement action despite his belief that to do so would create a danger to
miners.
I recognize and do not view lightly the UMWA's argument that compliance
with the present standard, rather than the proposed modification, best protects
the safety of the miners at the McClure No. 1 mine.
The proper forum for
weighing the conflicting evidence in this regard, however, is the Department of
Labor, not the Commission. In light of the serious safety question at. issue,
I encourage the expedited resolution of the pending modification proceeding.

Distribution:

Administrative Law Judge James A. Broderick
Office of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, Virginia 22041
James D. Crawford, Esq.
Dennis D. Clark, Esq.
Off ice of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Laura E. Beverage, Esq.
David J. Hardy, Esq.
Jackson & Kelly
P.O. Box 553
Charleston, West Virginia

25322

Mary Lu Jordan, Esq.
United Mine Workers of America
900 15th Street, NW
Washington, D.C. 20005

2143

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

November 20, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK 89-45-M

v.

BLUE CIRCLE ATLANTIC, INC.

BEFORE:

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

ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982) ("Mine Act"). On
October 26, 1989, Commission Chief Administrative Law Judge Paul Merlin
issued an Order of Default finding respondent Blue Circle Atlantic, Inc.
("Blue Circle") in default for failure to answer the Secretary of
Labor's civil penalty proposal and the judge's order to show cause. The
judge assessed the civil penalty of $900 proposed by the Secretary. By
letter dated November 13, 1989, addressed to Judge Merlin, Blue Circle
requests that this matter be reopened on the grounds that a settlement
has been negotiated with the Secretary reducing the civil penalty to
$600. Attached to the letter is Blue Circle's Motion to Reopen Default
and to Approve Settlement. We deem Blue Circle's November 13th letter
and attached motion to constitute a timely petition for discretionary
review of the judge's default order, we grant the petition, and we
remand this matter to the judge for further proceedings.
The judge's jurisdiction in this proceeding terminated when his
default order was issued on October 26, 1989. 29 C.F.R. § 2700.65(c).
Under the Mine Act and the Commission's procedural rules, once a judge's
decision bas issued, relief from the decision may be sought by filing
with the Commission a petition for discretionary review within 30 days
of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). Here,
Blue Circle's November 13 letter to Judge Merlin and accompanying motion
seek vacation of, and relief from, the judge's default order and we will
treat them as constituting a timely filed petition for discretionary
review. See,~· Middle States Resources, Inc., 10 FMSHRC 1130
(September 1988).

2144

It appears from the record that Blue Circle may have raised a
colorable explanation for its failure to respond to the judge's show
cause order in that the parties have been engaged in settlement
negotiations. The Commission will afford relief from default upon a
showing of inadvertence, mistake, or excusable neglect. ~, Amber
Coal Co., 11 FMSHRC 131, 132 (February 1989).
We are unable, on the basis of the present record, to evaluate the
merits of Blue Circle's assertions but, in the interest of justice, we
will permit Blue Circle to present its position to the judge, who shall
determine whether appropriate grounds exist for excusing its failure to
timely respond. ~, Perry Drilling Co., 9 FMSHRC 377, 380 (March
1987). If the judge determines that final relief from default is
appropriate, he shall also take appropriate action with respect to the
parties 1 settlement agreement. 30 U.S. C. § 820 ( k).
Accordingly, we grant Blue Circle's petition for discretionary
review, vacate the judge's default order, and remand this matter for
proceedings consistent with this order.

~~

-~
Jll::e.!i~
Richard V. Backley, Commissioner

Mark A. Lies, II, Esq.
Seyfarth, Shaw, Fairweather & Geraldson
55 East Monroe St.
Chicago, Illinois 60603
Jane S. Brunner~ Esq.
Office of the Solicitor
U.S. Department of Labor
201 Varick Street, Room 707
New York, New York 10014
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

2145

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

November 20, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. YORK 89-46-M

A. H. SMITH STONE COMPANY

BEFORE:

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

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982). On October 24,
1989, Commission Chief Administrative Law Judge Paul Merlin issued an
Order of Default finding respondent A.H. Smith ("Smith'r) in default for
failure to answer the Secretary of Labor's civil penalty complaint and
the judge's subsequent order to show cause. The judge assessed civil
penalties of $1,903, as proposed by the Secretary. By letter dated
November 2, 1989, addressed to Judge Merlin, Smith asserted that the
order to show cause had been misfiled and therefore overlooked. We deem
Smith's November 2 letter to constitute a timely petition for
discretionary review of the judge's default order. See~· Middle
States Resources, Inc. , 10 FMSHRC 1130 (September 1988); Mohave
Concrete & Materials, Inc., 8 FMSHRC 1646 (November 1986). We grant the
petition and summarily remand this matter to the judge for further
consideration.
It appears from the record that Smith, proceeding without benefit
of counsel, may have raised a colorable excuse for its non-response to
the judge's order. See~· Columbia Portland Cement Co., 8 FMSHRC
1644 (November 1986)(non-response attributable to mistake or neglect of
a former employee); Mohave Concrete, 8 FMSHRC at 1646 (failure to
respond attributable to mistake or neglect of a former bookkeeper). The
Commission has previously afforded such a party relief from final orders
of the Commission where it appears that the party's failure to respond
to a judge's order and the party's subsequent default are due to
inadvertence, mistake, or excusable neglect. Amber Coal Co., 11 FMSHRC

2146

131, 132 (February 1989); Kelley Trucking Co., 8 FMSHRC 1867
(December 1986); M.M. Sundt Construction Co., 8 FMSHRC 1269 (September
1986). Under these circumstances, we will accept Smith's letter as a
petition for discretionary review and grant the petition.
Since we are unable, on the basis of the present record, to
evaluate the merits of Smith's assertion in this case, we will permit
Smith to present its position to the judge, who will determine whether
sufficient grounds exist for excusing Smith's failure to timely respond.
Perry Drilling Co., 9 FMSHRC 377, 380 (March 1987), citing Kelley,
supra, 8 FMSHRC at 1869.
Accordingly, the judge's default order is vacated and this matter
is remanded for proceedings consistent with this order.

~£~_d(~~_/

/~
...n-~---_
R~

L. Clair Nelson, Commissioner
Distribution
Lisa M. Wolff, Director of Safety
A.H. Smith Associates
9101 Railroad Avenue
Brnachville, Maryland 20740
Susan M. Jordan, Esq.
Office of the Solicitor
U.S. Department of Labor
14480 Gateway Bldg.
3535 Market St.
Philadelphia, PA 19104
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, ~.W., Suite 600
Washington, D.C. 20006

2147

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

November 21, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. VA 88-09
VA 88-10
VA 88-11

v.
GARDEN CREEK POCAHONTAS
COMPANY

BEFORE:

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

DECISION

BY:

Ford, Chairman; Backley, Lastowka and Nelson, Commissioners

In this civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg., (1982)("Mine
Act"), the issue is whether Garden Creek Pocahontas Company ("Garden
Creek") violated 30 C.F.R. § 50.20(a), a standard requiring the
reporting of occupational injuries occurring at a mine. J_/ The

ll

30 C.F.R. § 50.20(a) states in part:
Each operator shall maintain at the mine off ice a
supply of MSHA Mine Accident, Injury, and Illness
Report Form 7000-1 .... Each operator shall report
each accident, occupational injury, or occupational
illness at the mine. The principal officer in
charge of health and safety at the mine or the
supervisor of the mine area in which an accident or
occupational injury occurs, or an occupational
illness may have originated, shall complete or
review the form in accordance with the instructions
and criteria in§§ 50.20-1 through 50.20-7 .•.• The
operator shall mail completed forms to MSHA within

2148

Secretary of Labor ("Secretary") asserts that Garden Creek violated the
standard by failing to report to the Secretary's Mine Safety and Health
Administration ("MSHA"), fourteen injuries, including one eye injury,
for which medical treatment was administered to miners. The Secretary
and Garden Creek agree that the injuries occurred at Garden Creek's
No. 6 underground coal mine and that various medications were prescribed
to treat the injuries. They also agree that if the injuries are
reportable, they are reportable only "as a result of the use of a
prescription medication and not for any other medical reason."
Stipulation 16.
Commission Administrative Law Judge Gary Melick held that under
the standard "medical treatment" includes the use of prescription
medications for the treatment of eye injuries, and, consequently, only
an eye injury for which prescribed medication is used constitutes a
reportable "occupational injury." Because thirteen of the injuries for
which medications were prescribed were not eye injuries, the judge
concluded they were not reportable. 10 FMSHRC at 1099. Regarding the
one eye injury, al~hough the Secretary established that a prescription
for medication was written, the judge found that the miners' use of the
medications was not proven. The judge concluded that use of the
prescribed medication could not be inferred from the m~ fact that
medication had been prescribed. The judge therefore held that the
Secretary had failed to prove a violation of section 50.20(a).
10 FMSHRC at 1099-1100.
The material facts are not disputed. Garden Creek owns and
operates the Virginia Pocahontas No. 6 Mine, an underground coal mine
located in Buchanan County, Virginia. From January through September
1987, a number of miners suffered minor injuries at the mine and were
issued prescriptions by their attending physicians. The medications
prescribed typically were pain relievers and muscle relaxants. These
injuries were not reported to MSHA by Garden Creek.
On September 30, 1987, MSHA inspector Richard Blankenship issued
18 citations to Garden Creek under section 104(a) of the Act, 30 U.S.C.
§ 814(a), alleging violations of section 50.20(a) for failing to report
the injuries to MSHA. The Secretary filed a complaint proposing the
injury occurs or an occupational illness is
diagnosed •..•
30 C.F.R. § 50.2(e) defines "occupational injury" as:
Any injury to a miner which occurs at a mine for
which medical treatment is administered, or which
results in death or loss of consciousness, inability
to perform all job duties on any day after an
injury, temporary assignment to other duties, or
transfer to another job.
(Emphasis added). The regulatory meaning of "medical treatment" is
explained in 30 C.F.R. § 50.20-3, which regulation contains criteria
differentiating between medical treatment and first aid.

2149

assessment of civil penalties for the alleged violations. Subsequently,
the judge approved a settlement of four of the violations. 11 FMSHRC at
1093. The remaining fourteen alleged violations are the subject of this
case. The key issue is the meaning of the phrase "occupational injury"
as used in the Secretary's reporting regulations.
30 C.F.R. § 50.20(a) provides that "occupational injuries" be
reported to MSHA. "Occupational injuries" are defined in section
50.2(e), in part, as "any injury to a miner which occurs at a mine for
which medical treatment is administered." The term "medical treatment"
is further defined by way of example and contrast in section 50.20-3,
which contains criteria exemplifying the differences between "medical
treatment" and "first aid."
Section 50.20-3(a) states in part:
Medical treatment includes, but is not limited to,
the suturing of any wound, treatment of fractures,
applica~ion of a cast, or other professional means
of immobilizing an injured part of the body,
treatment of infection arising out of an injury,
treatment of bruise by the drainage of blood,
surgical removal of'dead or damaged skin
(debridement), amputation or permanent loss of use
of any part of the body, treatment of second and
third degree burns •••• First aid includes any onetime treatment and follow-up visit for the purpose
of observation, of minor injuries such as, cuts,
scratches, first degree burns and splinters.
Ointments, salves, antiseptics, and dressings to
minor injuries are considered to be first aid.
30 C.F.R. § 50.20-3(a). Following this general statement of the
differences between medical treatment and first aid, the criteria of
sections 50.20-3(a)(l)-(a)(8) differentiate between medical treatment
and first aid in the treatment of specific injuries including abrasions,
bruises, burns, cuts and lacerations, eye injuries, inhalation of toxic
or corrosive gases, foreign objects, and sprains and strains. In the
case of eye injuries, "medical treatment" is described as involving
"removal of imbedded foreign objects, use of prescription medications,
or other professional treatment." 30 C.F.R. § 50.20-3(a)(5)(ii)
(emphasis added). Use of ·prescription medications is not otherwise
included in the description of "medical treatment" for any other type of
injury.
In December 1986, MSHA issued instructional guidelines to assist
operators in understanding the reporting requirements of Part 50. MSHA
Report on 30 C.F.R. Part 50, Gov. Ex. 16. The 1986 guidelines replaced
guidelines issued by MSHA in 1980. Information Report on 30 C.F.R. Part
50, Gov. Ex. 15. The 1980 guidelines and the 1986 guidelines both state
that medically treated injuries are reportable, while first aid treated
injuries are not reportable, "provided there is no lost workdays,
restricted work activity or transfer because of the injury." Gov. Ex.
15 at 9; Gov. Ex. 16 at 9. The 1986 guidelines also provide, "any use

2150

of prescription medication normally constitutes medical treatment" and,
in listing general procedures considered medical treatment, includes the
"use of prescription medications other than a single dose or application
given on a first visit.for the relief of pain." Gov. Exh. 16 at 10. In
distinguishing medical treatment from first aid for specific types of
injuries, however, the guidelines parallel the regulatory criteria and
refer only to the use of prescription medications for treatment of eye
injuries. Gov. Exh. 16 at 11.
Before the judge, the Secretary maintained that the 1986
guidelines are consistent with section S0.20-3(a) and are entitled to
deference. The judge rejected this argument. He noted that the
regulations at section S0.20-3 explicitly set forth only one type of
injury for which the use of prescription medication constitutes "medical
treatment." He stated that "by specifically mentioning in her
regulations that the treatment of eye injuries by use of a prescription
medication constitutes 'medical treatment' for purposes of Part SO
reporting requirements, the Secretary has implicitly excluded the·
treatment of all other injuries by use of prescription medicine alone
from the term 'medical treatment' under Part SO." 10 FMSHRC at 1099.
He concluded that the Secretary's attempt to expand the regulations
through the guidelines to include any use of prescription medication for
injuries was erroneous and inconsistent with the regulations. 10 FMSHRC
at 1099.
On review, the Secretary again argues that the interpretation of
"medical treatment" set forth in the guidelines is consistent with the
language of the regulations and is entitled to defer~nce. Sec. Br. 9.
Like the judge, we disagree.
While the Commission has recognized that in certain circumstances
guidelines, policy memorandums, manuals or similar MSHA documents may
"reflect a genuine interpretation or general statement of policy whose
soundness commends deference and therefore results in the [Commission]
according it legal effect," we have declined to do so where the
interpretation or policy statement is inconsistent with the plain
language of the standard. King Knob Coal Co., 3 FMSHRC 1417, 1420 (June
1981). See also Western Fuels-Utah Inc., 11 FMSHRC 278, 28S-86 (March
1989); Ufiite~ates Steel Corp., S FMSHRC 3, 6 (January 1983). In the
latter circumstances, the Commission has concluded that "the express
language of a ..• regulation unquestionably controls." King Knob,
3 FMSHRC at 420. Here, the guidelines not only are inconsistent with
the relevant language of Part SO, they are themselves internally
inconsistent. Therefore, we decline to give them effect.
The guidelines' statement that "any use of prescription medication
normally constitutes medical treatment" is not even remotely alluded to
in the language of Part SO. The Secretary did not include the use of
prescription medication in the general regulatory description of
"medical treatment" in section S0.20-3(a). To the contrary, as the
judge properly noted, the Secretary designated the use of prescription
medication as constituting medical treatment only in the case of eye
injuries. 30 C.F.R. § S0.20-3(a)(S)(ii).

2151

The·Secretary contends, however, that section 50.20-3(a) is not
all inclusive but rather provides illustrative examples. The Secretary
particularly notes that section 50.20-3(a) begins "[m]edical treatment
includes, but is not limited to" and argues that because the criteria
that follow this language illustrate examples of "medical treatment,"
use of prescription medication for types of injuries other than those to
the eye may constitute medical treatment.
The Secretary's argument is at odds with regulatory structure of
section 50.20-3. Section 50.20-3(a) lists specific procedures that are
to be classified as medical treatment and reported to MSHA, such as the
suturing of wounds, the treatment of infections and the treatment of
fractures. This regulation also states that medical treatment is not
limited to such procedures. Thus, other procedures of a like kind not
specifically listed must be reported by mine operators as medical
treatment. The familiar rule of statutory construction, ejusdem
generis, provides that where general words are followed by specific
examples in a statutory provision, the general words are construed to
embrace only objects similar in nature to the specific examples. ZA
Sutherland Stat. Constr. § 47.17 (4th ed). Therefore, the question is
whether the general words of this regulation ("medical treatment") can
fairly be read to include the use of the prescription medications at
issue in this case, given the nature of the specific examples used in
the regulation. We think not. The use of the medications prescribed in
this case bears little similarity to the suturing of wounds, the
treatment of fractures, or the other procedures specifically enumerated
in the regulation.
In addition, as discussed above, section 50.20-3(a)(5)(ii)
provides that an injury to the eye is classified as medical treatment
whenever prescription medications are used, but none of the other
specifically listed occupational injuries designate the use of
prescription medications as medical treatment. A regulation cannot be
applied in a manner that fails to inform a reasonably prudent person of
the conduct required. Mathies Coal Company, 5 FMSHRC 300, 303 (March
1983). For the reasons set forth above, we believe that the Secretary's
regulation failed to inform Garden Creek that it was required to report
the thirteen non-eye injuries involved here, and we affirm the judge's
ruling that Garden Creek's failure to report them did not violate
section 50.20-3(a).
In concluding that Garden Creek had not violated section 50.203(a) in connection with the one eye injury, the judge found that
although the Secretary proved that the miner suffered an eye injury for
which a physician prescribed medication, the Secretary failed to prove
that the miner used the medication. 10 FMSHRC at 1099-1100. The judge
rejected the Secretary's contention that use of the medication should be
inferred from the fact that it was prescribed, holding that the
necessary causal connection did not exist to support the inference.
10 FMSHRC at 1110. Again, we agree with the judge.
The Mine Act imposes on the Secretary the burden of proving the
violation the Secretary alleges by a preponderance of the evidence. See
Consolidation Coal Co., 11 FMSHRC 966, 973 (June 1989). The Commission

2152

has recognized that in certain circumstances the Secretary may establish
a violation by inference. Mid-Continent Resources, 6 FMSHRC 1132 (May
1984). Any such inference, however, must be inherently reasonable and
there must be a rational connection between the evidentiary facts and
the ultimate fact inferred. Mid-Continent Resources, 6 FMSHRC at 1138.
Here, the required connection is lacking because common experience
teaches the use of medication does not always follow its prescription.
Although a prescription may be written, its use may become unnecessary
because a transitory medical condition has abated. Also, intervening
factors, such as a decrease in the severity of an injury, the
disappearance of symptoms may cause the patient to forego the filling of
a prescription or the use of a prescribed medication.
Moreover, recognition of an inference is largely influenced by the
difficulty of obtaining the direct evidence necessary to establish the
fact to be inferred. See ~' Mid-Continent, 6 FMSHRC at 1138. Here,
the record does not establish that proof of the use of the medication
was unavailable to the Secretary or was unreasonably difficult to
obtain. Compare FMC v. Svensea American Union, 390 U.S. 390 U.S. 238,
248-49 (1968). Indeed, the inspector testified that he spoke with some
of the miners regarding their prescriptions, and the parties stipulated
that in three instances involving non-eye injuries the prescribed
medication was taken. Stipulation 12. The Secretary did not explain
why similar information was not elicited from the miner who suffered the
eye injury.
Thus, we are hard pressed to give credence to the Secretary's
assertion that requiring proof of the use of the prescribed medications
would be "unduly burdensome." The litigation process requires the
parties to obtain the evidence necessary to prove their allegations.
Should the Secretary truly find that proving the use of a prescription
medication is onerous, the Secretary should revise her regulation to
make the prescription of medication, rather than its use, a
determinative factor of "medical treatment." ~/

~/

Indeed, MSHA currently is reviewing the regulations in Part 50 to
improve illness, injury and accident reporting under the Mine Act. Of
particular relevance here, the Secretary has solicited comments and
information on how the current regulatory definition of "occupational
injury" should be revised and what the term "medical treatment" should
include. 53 Fed. Reg. 45878 (1988). The Secretary has a similar effort
underway regarding reporting requirements under the Occupational Safety
and Health Act of 1970, 29 U.S.C. § 651 et..seg., ( 11 0SHAct 11 ) , under which
employers also must record occupational injuries requiring medical
treatment. 29 C.F.R. § 1904. One suggested revision of the OSHAct
regulations would require any medication prescribed for use for more
than 48 hours to be considered "medical treatment" and therefore
reportable. This proposal comes from "the Keystone National Policy
Dialogue On Work-related Illness and Injury Recordkeeping, 11 January 31,
1989, The Keystone Center, Keystone, Colorado at 32.

2153

Accordingly, we hold that the judge properly vacated the fourteen
citations at issue, and we affirm the judge's decision.

~-

Richard V. Backley, Commissioner

L. Clair Nelson, Commissioner

2154

Commissioner Doyle, concurring in part and dissenting in part:
In this case, the Secretary of Labor ("Secretary") cited the
operator, Garden Creek Pocahontas Company ("Garden Creek"), for its
alleged failure to report fourteen instances in which medical treatment had been rendered to miners. In each instance, the medical treatment consisted entirely of the use of prescription medication by the
injured miner. The majority, in affirming the administrative law
judge, concludes that the use of prescription medication comprises
medical treatment only when that use is in conjunction with the
treatment of eye injuries. The majority also concludes that the
Secretary has not proven actual use of the prescription medication in
the one case involving an eye injury. While I concur with the majority
in its determination that the Secretary has failed to prove actual use
of the prescription medication in the eye injury case, I must respectfully dissent from their determination that the use of prescription
drugs does not constitute "medical treatment" of injuries other than
eye injuries.
As noted by the majority, 30 C.F.R. §50.20-3(a) sets forth a
general definition of "medical treatment," prefaced by the words
"includes, but is not limited to •.• " Listed within that definition
are a number of medical procedures with respect to fairly serious
injuries that may occur in mines, such as fractures, amputations, loss
of use of bodily parts, wounds, infections arising out of injuries,
and second and third degree burns, as well as bruises requiring blood
drainage. Following this definition of "medical treatment," the regulation provides a general. definition of "first aid" that includes onetime treatment of minor injuries such as cuts, scratches, first degree
burns and splinters, as well as follow-up observation of those injuries.
Following these definitions, there is set forth in 30 C.F.R.
§S0.20-3(a)(l)-(8) a list of eight categories of injuries, the
treatment of which may involve either "medical treatment" or "first
aid." For the most part, these categories do not include injuries
listed in the general definition of "medical treatment." 1/ The
Secretary contends that the categories in section S0.20-3(a) are not
all-inclusive but, rather, set forth illustrative examples. I agree.
The doctrine of ejusdem generis, relied on by the majority to
reach its determination that treatment of injuries by use of prescription drugs is not included in the definition of "medical treatment," is inapplicable to the standard in issue, That rule of
statutory construction is used when there is "an incompatability

1/
The exceptions are burns, which, if they are second or third degree,
fall within the general definition of injuries requiring "medical treatment," and cuts, which, to the extent they are wounds requiring sutures,
also fall within that definition.

2155

between specific and general words so that all words in a statute •.•
can be given effect, •.• " Sutherland Stat. Const. §47.17 (4th
ed.). (emphasis added.) There is no incompatability between the
general and specific words in section 50.20-3(a)'s description of
medical treatment.
More importantly, the doctrine is inappropriate in this case
because the regulation specifically does not restrict itself to the
terms listed, but instead provides that the general term, medical
treatment, "includes, but is not limited to," the specific examples
that follow. (emphasis added.)
Of more relevance to the issue at hand is the rule of construction with respect to definitions. A definition that uses the term
"includes" is "more susceptible to extension of meaning by construction" than a definition that uses the term "means." Sutherland Stat.
Const. §47.07 (4th ed.) The "word 'includes' is usually a term
of enlargement, and not of limitation ••. It, therefore, conveys the
conclusion that there are other items includable, though not
specifically enumerated •.. " id.
The regulation itself contains other indications that use of
prescription medication as a form of "medical treatment" is not
limited to eye injuries. Within the eight categories of section
50.20-3(a), three categories make specific reference to prescription
or non-prescription medication. Category (5), "Eye Injuries," lists
use of non-prescription medication as "first aid" and use of prescription medication as "medical treatment." Category (3), "Burns, Thermal
and Chemical," lists use of non-prescription medication as "first aid"
but makes no reference to the use of prescription medication in the
description of "medical treatment." Category (7) ~ "Foreign Objects,"
also lists application of non-prescription medication as "first aid"
and makes no specific reference to prescription medication in the
description of "medical treatment." As this language indicates, one
form of "first aid" is the use of non-prescription medication. By
defining "first aid" to include the use of non-prescription medication,
I believe it can reasonably be inferred that the use of prescription
medication falls within the definition of "medical treatment." 2/

The use of prescription medication could also be inferred to con2/
stitute medical treatment in at least two additional categories.
Category (6), "Inhalation of Toxic and Corrosive Gases," limits "first
aid" to the removal of the miner to fresh air and the one-time administration of oxygen. ''Medical treatment" is described as any professional treatment beyond "first aid." Category (8), "Sprains and
Strains," limits "first aid" to soaking, compresses, and bandages.
"Medical treatment" includes "other professional treatment."

2156

In addition, I believe that the common meaning of the words "including, but not limited to," would put a reasonably prudent person on
notice that the list is not all-inclusive.
I also find that the Secretary's interpretation, to the effect that
"medical treatment" includes the use of prescription medication except
where a "single dose or application is given on the first visit merely
for relief of. pain," is a reasonable one, consistently held and fully
consonant with the purposes of the Mine Act. Information Report on 30
C.F.R Part 50, (1980), Gov. Ex. 15, MSHA Report on 30 C.F.R. Part 50,
(1986), Gov. Ex. 16. It is thus entitled to deference by the Commission. Bushnell v. Cannelton Indus., Tnc., 867 Fed. 2d. 1432, 1438
(D.C. Cir. 1989).
For the foregoing reasons, I would reverse· the administrative law
judge's determination that the Secretary, by specifically mentioning
the use of prescription medication only in the eye injury category,
has thereby excruded the treatment of all other injuries by use of
prescription medication alone from the definition of "medical treatment." Accordingly, I would find a violation in those instances where
the judge found that prescription medication was actually used.

2157

Distribution
Marshall S. Peace, Esq.
Garden Creek Pocahontas Co.
P.O. Box 11430
Lexington, Kentucky 40575
Timothy M. Biddle, Esq.
Thomas C. Means, Esq.
Margery A. Bugen, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Mary K. Spencer, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Robert Stropp, Esq.
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge Gary Melick
Federal Mine Saf~ty & Health Review Commission
5203 Le~sburg Pike, Suite 1000
Falls Church, Virginia 22041

2158

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

November 22, 1989
ROCHESTER & PITTSBURGH
COAL COMPANY
Docket No. PENN 88-152-R
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
BEFORE:

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

DECISION

BY THE COMMISSION:
This proceeding was brought under section 107(e)(l) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq (1982)(the
"Mine Act") by Rochester and Pittsburgh Coal Company ( 11 R&P 11 ) to review
an imminent danger withdrawal order issued by an authorized representative of the Secretary of Labor ("Secretary") at R&P's Greenwich
No. 2 Mine. ll Commission Administrative Law Judge Gary Melick found
that an imminent danger existed and upheld the withdrawal order. For
the reasons that follow, we affirm.

ll

Section 107(e)(l) provides in pertinent part:
Any operator notified of an order under this section
or any representative of miners notified of the
issuance, modification, or termination of such an
order may apply to the Commission within 30 days of
such notification for reinstatement, modification or
vacation of such order. The Commission shall
forthwith afford an opportunity for a hearing (in
accordance with section 554 of title 5 but without
regard to subsection (a)(3) of such section) and
thereafter shall issue an order, based upon findings
of fact, vacating, affirming, modifying, or
terminating the Secretary's order.

30 U.S.C. § 817(e)(l).

2159

On February 25, 1988, Robert L. Coy, a pltimber at R&P's Greenwich
No. 2 Mine was assigned to repair a leaking, six-inch water pipe. With
the assistance of other miners, he repaired the pipe with a new 0-ring
and other parts. The pipe was parallel to and directly underneath the
Main T Number 1 coal conveyor belt (the "belt"). The repair crew
started the belt after the repairs were completed.
After the belt was started, Coy noticed that the pipe was sagging
at one location. He walked underneath the moving belt to pick up a
concrete block to place under the sagging pipe. At that location, the
pipe was supported by a 52-inch high concrete block wall that was under
and perpendicular to the belt. As Coy was placing the block on this
wall under the pipe, Gerry I. Boring, an inspector of the Secretary's
Mine Safety and Health Administration (MSHA), observed Coy under the
moving belt in a stooped position. Inspector Boring asked Coy what he
was doing and Coy .replied that he was retrieving a block. The inspector
immediately issued an imminent danger withdrawal order pursuant to
section 107(a) of the Mine Act requiring that Coy be immediately removed
from under the moving belt. ~/ Inspector Boring observed that the mine
floor in that location was covered with wet, soupy accumulations of coal
and other material that ranged between eight and fifteen inches in
depth. After Coy came out from under the belt, Inspector Boring
measured the height of the belt near where he observed Coy. The
distance from the top of the accumulations to the edge of the belt was
64 inches.
Inspector Boring issued the imminent danger order because Coy was
working under a moving belt that was a short distance above him and the
inspector believed that a danger of contact was present. The inspector
required that Coy.immediately be removed from the danger and instructed

~/

Section 107(a) provides in pertinent part:
If, upon any inspection or investigation of a coal
or other mine which is subject to this chapter, an
authorized representative of the Secretary finds
that an imminent danger exists, such representative
shall determine the extent of the area of such mine
throughout which the danger exists, and issue an
order requiring the operator of such mine to cause
all persons, except those referred to in section
814(c) of this title, to be withdrawn from, -and to
be prohibited from entering, such area·until an
authorized representative of the Secretary
determines that such imminent danger and the
conditions or practices which caused such imminent
danger no longer exist.

30 U.S.C. § 817(a).

2160

as to the hazards of working under a moving belt. 3/ The inspector also
issued a citation under section 104(a) of the Mine-Act, 30 U.S.C.
§ 814(a), alleging a violation of 30 C.F.R. § 75.1722(a), a mandatory
safety standard requiring that exposed moving machine parts on
mechanical equipment be guarded. ~/
The belt carried coal from various working sections of the mine to
the main P belt, its dumping point, which was located outby Coy. The
belt was supported by chains attached to the mine roof and was tilted at
an angle in Coy's work area as it approached the main P belt. The
inspector observed Coy under the moving belt approximately three to four
feet inby the concrete block wall that supported the water pipe.
Because the belt was at an angle in relation to the mine floor, the
distance between the floor and the belt would increase if Coy approac~ed
the concrete block wall and would decrease if he walked inby away from
the wall. Coy is 67 inches tall. Administrative Law Judge Melick
determined that at the location Coy was observed, the belt was between
72 and 79 inches above the solid mine floor, considering the eight to
fifteen inches of wet accumulations and the 64 inches between the
accumulations and .the bottom belt. 10 FMSHRC 1580. These-findings were
not contested by R&P and are supported by substantial evidence.
At the hearing, Inspector Boring testified that Coy's presence
under the belt presented four hazards. First, he stat~d that the belt
could break, strike Coy, knock him down and possibly drag him back
through the bottom roller that was inby Coy. Second, the inspector was
concerned that a defective belt splice lacer could hang down, catch Coy
and drag him. (A splice lacer is a metal device that resembles a three}/

In the withdrawal order, the inspector stated:
Observed Robert C~y (UMWA) standing under the
operating Main T No. 1 belt conveyor (near the belt
head). The clearance between the bottom of the belt
and the coal accumulation on the mine floor is 64
inches. Mr. Coy had been repairing a water line and
was retrieving a block from underneath said belt
when observed. Exposed machine parts which may be
contacted by persons and which may cause injury to
persons shall be guarded. 30 C.F.R. § 75.1722(a).

Gov. Exh. 6. The inspector stated that the order was immediately
terminated because:
Mr. Coy removed himself from under the belt
immediately. Joe DeSalvo, safety inspector,
instructed Mr. Coy about hazards involved with
working under moving belts. Gov. Exh. 6.

~/

The administrative law judge vacated the citation and the
Secretary did not seek review before the Commission.

2161

inch long staple that is riveted to the belt and is used to interlock
sections of belt.) The third hazard of concern to the inspector was
that Coy could sustain an eye injury from the fine coal that falls from
the underside of the belt. Finally, Inspector Boring was concerned that
Coy's arm or hand could come in contact with the belt if he slipped in
the wet accumulations on the mine floor. The inspector testified that
if he touched the bottom of the moving belt he could be knocked over and
sustain a serious head, arm or hand injury.
Coy and another miner, Dennis Kopp, testified that they did not
consider it hazardous to go under the moving belt at that location
because they believed the clearance was sufficient. Coy stated that for
the entire eight to ten seconds he was under the belt he was stooped
over. Paul Enedy, a mining engineer employed by R&P, testified that the
belt was unlikely to break because it was in good condition and that if
it did break it would likely break at the top without a risk of injury
to Coy. He also testified that it is uncommon for belts to break or
become defective at a splice.
The administrative law judge upheld the inspector's finding of an
imminent danger and affirmed the withdrawal order. He determined that
although there was "no evidence in this case that the belt was worn or
otherwise likely to break or that any of the splices were deficient, •••
the other hazards were such that the cited condition 'could reasonably
be expected to cause serious physical harm' if not discontinued."
10 FMSHRC 1581. Thus, it is apparent that the judge relied upon the
inspector's testimony that Coy could have been seriously injured if he
came in contact with the belt or if debris fell off the belt into his
eyes.
R&P's challenge to the administrative law judge's decision is a
narrow one. In its petition for discretio~ary review, R&P raises two
issues. First, it argues that the judge failed to recognize that the
condition (Coy's presence under the moving belt) was an isolated event
that would not have continued or recurred. It maintains that the judge
improperly assumed that the condition would continue when he held that
harm could result from the condition "if not discontinued." 11 FMSHRC
1581. R&P emphasizes that it is undisputed that it is the normal
practice at the mine to deenergize a belt whenever work is to be
performed under it. Thus, it contends that the judge failed to decide
the case on the basis of the precise facts presented.
Second, R&P argues that the condition cited by the inspector could
not reasonably be expected to cause death or serious physical harm. It
contends that the evidence shows that the likelihood of a serious injury
resulting from Coy's presence under the belt was too remote to
constitute an imminent danger.
The Secretary argues that if an inspector encounters a condition
that he reasonably determines to present the potential of death or
serious physical harm, he is required to issue a section 101(a) order of
withdrawal. She maintains that if the inspector's conclusion that an
imminent danger existed was reasonable at the time it was made, the
order should be upheld. She argues that Inspector Boring's

2162

determination was reasonable and substantial evidence supports the
judge's affirmance of the order.
The Mine Act defines an imminent danger as "the existence of any
condition or practice in a coal or other mine which could reasonably be
expected to cause death or serious physical harm before such condition
or practice can be abated." Section 3(j) of the Mine Act; 30 U.S.C.
802(j). This definition was not changed from the definition contained
in the Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq.
(1976)(amended 1977)(the "Coal Act").
In analyzing this definition, the U.S. Courts of Appeals have
eschewed a narrow construction and have refused to limit the concept of
imminent danger to hazards that pose an immediate danger. See ~·
Freeman Coal Mining Co. v. Interior Bd. of Mine Op. App., 504 F.2d 741
(7th Cir. 1974). Also, the Fourth Circuit has rejected the notion that
a danger is imminent only if there is a reasonable likelihood that it
will result in an injury before it can be abated. Eastern Associated
Coal Corp. v. Interior Bd. of Mine Op. App., 491 F.2d 277, 278 (4th Cir.
1974). The court adopted the position of the Secretary that "an
imminent danger exists when the condition or practice observed could
reasonably be expected to cause death or serious physical harm to a
miner if normal mining operations were permitted to proceed in the area
before the dangerous condition is eliminated." 491 F.2d at 278
(emphasis in original). The Seventh Circuit adopted this reasoning in
Old Ben Coal Corp. v. Interior Bd. of Mine Op. App., 523 F.2d 25, 33
(7th Cir. 1975).
Applying this precedent to the first issue raised by R&P, the
question is whether, given the continuation of normal mining operations,
the condition could have seriously injured Coy at any time before the
dangerous condition was eliminated. Contrary to R&P's contentions, it
was proper for the judge to consider the hazards presented by the
condition if normal mining operations were allowed to continue before
Coy was removed from under the moving belt. The Secretary has
consistently interpreted the definition of imminent danger to exclude
consideration of abatement time and, as discussed above, this
interpretation has been supported by the courts. Thus, the judge was
correct to analyze the hazards without assuming that the condition would
have been quickly discontinued.
Whether Coy's presence under the moving belt could reasonably be
expected to cause physical harm is a question of fact. We must affirm a
judge's finding of fact if it is supported by substantial evidence.
Substantial evidence is "such relevant evidence as a reasonable mind
might accept as adequate to support [the judge's] conclusion."
Consolidation Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). In
assessing whether a. finding is supported by substantial evidence, the
record as a whole must be considered including evidence in the record
that "fairly detracts" from the finding. Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951). Measured against this standard, we find
substantial evidence in the record to support the judge's findings. R&P
offered little evidence to rebut the two hazards relied upon by the
judge to affirm the order. The judge determined that the miner might

2163

(1) "contact the belt (presumably by extending an arm) and break a
finger or be knocked against a wall" and (2) "sustain serious eye
injuries from debris falling off the belt." 10 FMSHRC at 1581. On
review, R&P simply argues that the chance of either of these two events
occurring is remote. The judge determined otherwise and his findings
are supported by the record.
In addition, R&P's focus on the relative likelihood of Coy being
injured while under the moving belt ignores the admonition in the Senate
Committee Report for the Mine Act that an imminent danger is not to be
defined "in terms of a percentage of probability that an accident will
happen." S. Rep. No. 181, 95th Cong., 1st Sess. 38 (1977), reprinted in
Senate Subcommittee on Labor of the Committee on Human Resources, 95th
Cong., 2nd Sess, Legislative History of the Federal Mine Safety and
Health Act of 1977 at 626 (1978). Instead, the focus is on the
"potential of the risk to cause serious physical harm at any time." Id.
The Committee stated its intention to give inspectors "the necessary
authority for the taking of action to remove miners from risk." Id.
R&P's argument also fails to recognize the role played by MSHA
inspectors in eliminating imminently dangerous conditions. Since he
must act immediately, an inspector must have considerable discretion in
determining whether an imminent danger exists. The Seventh Circuit
recognized the importance of the inspector's judgment:
Clearly, the inspector is in a precarious position.
He is entrusted with the safety of miners' lives,
and he must ensure that the statute is enforced for
the protection of these lives. His total concern is
the safety of life and limb .... We must support the
findings and the decisions of the inspector unless
there is evidence that he has abused his discretion
or authority. (emphasis added).
Old Ben, supra, 523 F.2d at 31.
Applying this rationale, the question is whether Inspector Boring
abused his discretion when he determined that Coy could be seriously
injured while working under the moving belt. The hazards of working
under a moving belt are well known as evidenced by R&P's policy against
such a practice. Inspector Boring observed a miner working under a
moving belt, where the clearance was tight, picking up a concrete block
and placing it on a wall to support a pipe located less than a foot
below the moving belt. While he was primarily concerned with what might
happen if the belt or a belt lacer broke, the inspector also believed
that the miner could be seriously injured if he contacted the belt. The
evidence demonstrates that the floor was covered with wet, soupy
accumulations, that Coy's hands were close to the belt when he placed
the block under the pipe and that Coy could have slipped and
inadvertently contacted the moving belt. The fact that the belt was not
parallel to the floor and the accumulations made walking difficult,
increased the chance that Coy could come in contact with the belt.
Finally, the inspector testified that if Coy contacted the belt he could
have fallen and seriously injured himself. Based on this evidence and

2164

the findings of the administrative law judge, we cannot conclude that
the inspector abused his discretion.
We thus conclude that the judge's finding of an imminent danger is
supported by substantial evidence. Accordingly, we affirm the judge's
decision.

V-r_/-~~/~/{cv~~\
Richard V. Backley, Commissioner

Lastowka, Commissioner
1

. . .
.
. {j Ct_
I

r

_;

I

I

,

-

_.)(__5>.J-.(.,"--1'\._;'

L. Clair Nelson, Commissioner

Distribution
Joseph A. Yuhas, Esq.
Pennsylvania Mines Corporation
P.O. B.ox 367
Ebensburg, PA 15931
Tina Gorman, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia
22041

2165

j

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

November 30, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JUAN G. PENA
v.

EISENMAN CHEMICAL COMPANY

BEFORE:

..

Docket Nos. CENT 85-47-DM
85-68-DM

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

ORDER
--BY THE COMMISSION:
Juan G. Pena has filed with the Commission a letter requesting
that this discrimination proceeding be reopened and a previously
approved settlement be set aside. For the reasons that follow, Pena's
request is denied.
On April 15, 1985, the Secretary of Labor filed a discrimination
complaint on behalf of Pena alleging that Eisenman Chemical Company
("Eisenman") unlawfully discriminated against Pena in violation of
section 105(c) of the Federal Mine Safety and Health Act of 1977 ("Mine
Act"), 30 U.S.C. § 815(c). Eisenman denied the allegation, and the
matter was assigned to Commission Administrative Law Judge Roy Maurer.
On December 18, 1985, at an evidentiary hearing, the Department of
Labor attorney representing Pena and counsel for Eisenman stated to the
judge that the parties agreed to settle the matter. Tr. 2. Counsel for
Pena read the proposed settlement into the record, and the attorneys
jointly moved the judge to approve the settlement. The judge asked rena
if he agreed to the settlement as stated, and when Pena answered "yes,"
the judge granted the motion and stated that upon receipt of the
transcript he would issue an order incorporating the terms of the
settlement, requiring compliance therewith, and dismissing the case.
Tr. 5.

2166

Subsequently, the judge issued a written decision, approving the
settlement. 8 FMSHRC 142 (January 1986)(ALJ). In his decision the
judge repeated the settlement agreement, which, in pertinent part,
required Eisenman to pay the sum of $13,000 "in full and complete
satisfaction of back wages," and which stated that "[t]he intent ... is
to settle all claims Complainant may be due under the provisions of
Section 105(c) of the Act." 8 FMSHRC at 143 (quoting Tr. 3). The judge
stated, "I conclude and find that [the settlement] reflects a reasonable
resolution of the complaint. Further ... all of the parties, including
Mr. Pena personally, are in accord with the agreed upon disposition of
the complaint." 8 FMSHRC at 143. The judge ordered Eisenman to fully
comply with the terms of the agreement and dismissed the complaint.
8 FMSHRC at 142, 144.
On October 30, 1989, the Commission received a letter from Pena
requesting that the matter be "re-open[ed] for trial because of breach
of contract on the settlement concerning my claim." Pena letter 1.
Pena states that although Eisenman paid him $13,000, the company did not
pay "taxes, withholding, and etc.," as promised. Id. 1, 2. Pena
alleges that he has been "defrauded ... by my representatives from the
U.S. Dept[ment] of Labor and [by my] ex-employer," and Pena requests
"triple damages for fraud, and breach of contract at my new trial." Id.
Pena did not file, a timely petition for discretionary review of
the judge's decision approving the settlement within the 30-day period
prescribed by the Mine Act. 30 U.S.C. § 823(d)(2)(A)(i). See also
29 C.F.R. § 2700.70(a). Nor did the Commission direct review on its own
motion within this 30 day period. Thus, by operation of statute the
judge's decision became a final decision 40 days after its issuance.
30 U.S.C. § 823(d)(l). Under these circumstances, Pena's submission
must be construed as a request for relief from a final Commission order.
29 C.F.R. § 2700.l(b) (Federal Rules of Civil Procedure apply in absence
of applicable Commission rules); Fed. R. Civ. P. 60 (Relief from
Judgment or Order). See Danny Johnson v. Lamar Mining Co., 10 FMSHRC
506, 508 (April 1988); Kelley Trucking Co., 8 FMSHRC 1867, 1868-69
(December 1986).
Relief from a final judgment or order on the basis of fraud,
misrepresentation, or other misconduct is available to a movant under
Fed. R. Civ. P. 60(b)(3) and Fed. R. Civ. P. 60(b)(6).
To the extent that Pena is claiming that Eisenman, the adverse
party, defrauded him, the motion is seriously untimely. Pena's
submission was received by the Commission almost four years after the
settlement was agreed to and the decision was issued. Rule 60(b)(3)
states that a motion for relief due to fraud, misrepresentation or
misconduct by an adverse party must be made within a reasonable time and
must be made not later than "one year after the judgment." This limit
is an extreme limit, and a motion made under clause (3) must be denied
as untimely if made more thin one year after judgment regardless of
whether the delay was reasonable. The limit may not be extended. C.
Wright & A. Miller, Federal Practice and Procedure§ 2866 at 233-234
(1973).

2167

Under either clause (3) or (6) of Rule 60(b), a movant must
establish by clear and convincing evidence that the alleged fraud or
misconduct occurred. Pena fails to meet this test. Pena's submission
contains only his unsupported allegation of fraud. The record contains
no evidence of fraud or misconduct by the attorneys representing the
parties. At the hearing, counsel representing Pena stated that the
parties agreed that Eisenman's payment of $13,000 to Pena would
represent "full and complete satisfaction of back wages" and that the
intent of the agreement was to "settle all claims [Pena] may be due
under the provisions of section 105(c) of the Act." Tr. 3. When asked
by the judge if he understood the settlement, if it was in accord with
what he had been told, and if he agreed to it, Pena responded
affirmatively and without constraint. Tr. 4-5
Accordingly, the motion to reopen this proceeding is denied.

~

~~,c~~~

Richard V. Backley, Conunissioner

gc=~r
L. Clair Nelson, Conunissioner

Juan G. Pena
2038 Rockford Drive
Corpus Christi, Texas

78416

Steven R. Baker, Esq.
Fulbright and Jaworski
Bank of the Southwest Bldg.
Houston, Texas 77002
Administrative Law Judge Rov Maurer
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

2168

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

NOV 11989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 89-67-M
A.C. No. 23-00199-05503

v.
Jasper #15 Mine
MIDWEST MINERALS, INC.,
Respondent
DECISION
Appeacances:

Before:

Charles w. Mangum, Esq., Office of the
Solicitor, U.S. Department of Labor,
Kansas City, Missouri for Petitioner1
Alan Stotz, Midwest Minerals, Incorporated,
for Respondent.

Judge Melick

This case is before me upon the petition for civil
penalty filed by the Secretary of Labor pursuant to Section
105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et. seq., the "Act," chat:'ging Midwest
Minerals, Inc. (Midwest) with four violations of the
regulatory standard at 30 C.F.R. § 56.9002. The general
issue before me is whether Midwest violated the cited·
regulatory standard and, if so, the appropriate civil penalty
to be assessed in accordance with Section llOCi) of the Act.
The four citations, issued pursuant to Section 104(a) of
the Act alleged, as amended, "significant .and substantial"
violations and charged as follows:
Citation No. 3273075
The R22 Euclid Haul truck company number 854, did
not nave a [sic] operating grade retarder. The
truck is used to stockpile crushed limestone and
travels on the level most of the time except when
it is on top of a stockpile. At the time the
violation became apparent, the truck was parked and
in re3ponse to questions it wa8 learned that the
retarder didn't work.

2169

Citation No. 3273076
The grade retarder on the R22 Euclid, company
number 855, was not working. The truck was not in
operation when this iriformation was learned, but
came to lite (sic] when company personnel was (sic]
questioned about the operation of the truck. The
truck is used to stockpile crushed limestone and
runs on the level most of the time except when it
is on top of the stockpile.
Citation No. 3273077
The grade retarder on the R22 Euclid haul truck,
company number 851, was not operating. The truck
was not in operation when the violation wa3 learned
and came to lite (sic] when company personnel was
(sic] questioned about the operation of the truck.
The truck ia used to stockpile crushed limestone
and runs on the level most of the time, except when
it is on top of the stockpile.
Citation No. 3273078
The grade retarder on the R22 Euclid (Company
No. 859) was unhooked. The truck was parked when
this information came to lite (sic] while company
personnel were being questioned about the operation
of the truck. The truck is used to stockpile
crushed limestone and runs on the level most of the
time except when it is on the top of a stockpile.
The cited standard, 30 C.F.R. § 56.9002, provides that
"equipment defects affecting safety shall be corrected before
the equipment is used."
The Secretary's evidence is not disputed. Robert Earl,
an inspector for the Federal Mine Safety and Health
Administration (MSHA} testified that he was familiar with the
Midwest Jasper No. 15 Mine since he had formerly worked there
and had previously conducted a compliance (courtesy}
inspection at the mine.
A courtesy inspection is designed to
advise the operator of potentially violative conditions at
his mine without being penalized or cited. At the courtesy
inspeciton Earl provided about a month before the instant
citations were issued he advised mine supervisor Crumpecker
that non-functioning 9rade retarders on the Euclid haul
trucks would be cited if not repaired. Grade retarders are

2170

designed for trucks with automatic transmissions to reduce
speed to 3 1/2 miles per hour without the use of brakes. The
R22 Euclid haul trucks were capable of hauling 20 to 25 tons
of rock and had a net weight of about 20 tons.
On August 11, 1988, inspector Earl returned to the
Jasper No. 15 Mine £or a routine regular inspection and found
that the grade retarders had not been repaired on the cited
haul trucks. Earl accordingly issued the citations now at
issue.
It is not disputed that the cited trucks were available
for service and were QSed to stockpile crushed limestone.
According to the undisputed testimony of Inspector Earl a
ramp is built onto the atockpile and over which these trucks
operate. Eventually the ramp would be developed with a 15
percent grade and up to 35 feet long. According Earl it is
the industry practice for the grade retarders to be used to
reduce speed and it was a particularly important safety
device on the Euclid trucks which had "notoriously bad
brakes".
It is not di.:;puted moreover that the trucks he.re
cited were also operating in a congested area. Earl opined
that it was therefore likely that the trucks might be
involved in an accident implicitly causing serious injuries
to one or both drivers.
Within the above framework of evidence it is clear that
the violations are proven as charged that the violations were
"significant and substantial". Particularly in light of the
undisputed evidence that these haul trucks would be operating
in a congested area on a 15 degree ramp and had "notoriously
bad breaks" it is clear that the violations involved a
discreet safety hazard, that there was a reasonable
likelihood that the hazard contributed to would result in an
injury from a truck accident and there was a reasonable
likelihood that the injuries would be of a reasonably serious
nature.
Secretary v. Mathies Coal Co., 6 FMSHRC 1 (1984);
Secretary v. Consolidation Coal Co., 8 FMSHRC 890 (1986).
Under the circumstances I also reject Midwesc's proffered
defense that grade retarders are not safety devices or
subject to the cited regulation. The fact that grade
retarders may also be used to reduce brake wear, as Midwest
maintains, only serves to underline the fact that grade
retard€rs are indeed safety devices.
I further find that Midwest is chargeabie with high
negligence.
It is undisputed that several weeks before these
citations were issued In3pector Earl advised Midwest

2171

officials at a courtesy inspection that the grade retarders
must be functioning or citations would be issued. There is
no evidence that Midwest then disputed MSHA's position that
grade retarders were "safety devices" subject to the
provisions of 30 C.F.R. § 56.9002.
In any event the failure
of Midwest to have repaired the defective grade retarders
before the inspection at bar and the continued use of the
trucks without grade retarders therefore constitutes high
negligence.
It is also undisputed that as of the date of hearing the
grade retarders had still not been repaired. Moreover
apparently to avoid making the repairs the cited trucks were
moved.out of the MSHA district in which they had been cited.
Indeed the evidence shows that they had been moved to the
State of Kansas under the jurisdiction of the MSiiA Topeka
District off ice. According to the testimony of Midwest
official Alan Stotz those trucks have since been inspected
within that MSHA district and have not been cited for failure
to have grade retarders.
It is not clear however whether
that MSHA off ice had knowledge of the non-iunctioning grade
retarders.
In any event the evidence is clear that the cited
violations have not been abated and the mine operator is
making conscious efforts to avoid abatement. Accordingly I
reject the stipulation by the parties (Joint Exhibit No. 1)
that "the Respondent demonstrated good faith in abating the
alleged violation".
'rhe penalty assessment in this case must appropriately
re£lect the findings on these important criteria as well as
the size and history of violations. Under the circumstances
I find that civil penalties of $300 for each violation are
appropriate.
ORDER
Midwest Minerals, Inc., is directed to pay civil
penalties of $1,200 within 30 days of the date of this
decision.
The Secretary of Labor is directed to report to
the undersigned within 30 days of the date f this decision
as to whether the violations herein have be n abated and, if
not, what further action will be taken.

strative
756-6261

2172

Distribution:
Charles w. Mangum, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 2106, 911 Walnut Street, Kansas
City, MO 64106 (Certified Mail)
Mr. Alan Stotz, Safety Director, Midwest Minerals, Inc., P.O.
Box 412, Pittsburg, KS 66762 (Certified Mail)
nt

2173

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

22041

NOV
WARREN CT.. YDE 'rEE'rS,.
Complainant

DISCRIMINATION P.ROCEEDING

v.

Docket No. YORK 89-15-D
MORG-CD-88-16

METTIKI COAL COMPANY,
Respondent

Prep Plant
DECISION
-

Appearances:

Thomas

w. Rodd, Esq., for the Complain3.nt;

A.nn R. Klee, Esq., for the Respondent.
Before:

Judge Fauver

This proceeding was brought by Complainant under § 105(c) of
the Federal Mine Safety and Health A.ct of 1977, 30 C.F.R. ~ 801
et ~, alleging a discriminatory discharge.
Having considered the hearing evidence aud the r~cotd as a
whole, I find that a preponderance of the substantial, raliable,
and probative evidence establishes the following Findings of Fact
and additional findings in the Discussion below:
FINDINGS OF FACT
1.

Mettiki

The Mettiki Preparation Plant is owned and operated by
Corporation.

Co~l

2.
Complainant was a 1.niner and an employee of Mettik.i Coal
Corporation from October 2, 1978, until his discharge on June 21,
1988, when he wa3 woclcin.J at the Preparation Plant.

3. On June 21, 1983, about 9:00 p.m., Complainant was
ob:3·:rved by his Sllpervlsor at the time, Harold Upole, carrying a
case oE sealant from the Preparation Plant Warehouse.
4.
Mr. Uoole watched Comolainant waU: frotn the Preparation
Plant Wacehous~ to the U)per R~ad wh·:re he t...irned in a weste~ly
1irection towards Table Rock Road.

2174

5. At about 11:20 p.m., at the .end of the shift, Mr. Upole
observed Complain-9.nt walking from the direction of Table Rock
Road carrying a case of sealant to his personal vehicle. When
questioned by Mr. Upole, Complainant stated that he had received
permission from the PreparaJ,ion Plant Superintendent, John
Laughton, to take the sealant home for his personal use.
6. When Mr. Upole telephoned Mr. Laughton to verify
Complainant's claim, Mr. Laughton stated that he had not given
Comr;>lainant authocization to take sealant home. Mr. Laughton
then spoke with Co:nplainant on the telephone. Complainant again
claimed that he had ceceived permission from Mr. Laughton at some
time previously to take the sealant home.
Complainant told Mr.
Laughton that he was going to use the sealant to seal his steps
at home.
Mr. Laughton then spoke to Mr. Upole again, and told
him to discharge Complainant for stealing company property.
7. The Mettik.i_Employee Manual states that employees will
be discharged for theft of company property.
All Mettiki
employees, including Complainant, were given copies of this
Manual.
·
8.
Mettiki officials held a meeting with Complainant and
others on June 22, 1988, to di8cuss further the incident leading
to Complainant's dischacge. At that meeting, Complainant stated
again that he had received permission to take sealant home for
his personal use.
Alternatively, he suggested that someone else
might have placed the case of sealant in his pecsonal vehicle.
Neither Complainant nor anyone else observed any person place a
case of sealant in Complainant's vehicle. Complainant did not
suggest at that time that he had been discharged for raising
safety complaints with his supervisors.

9.
After consideration of Complainant's ex:pln.nation on June
22, 1983, as well as the statetnents of Mr. Upole and others, ~r.
Laughton .::i.f f.irmed the discharge of Complainant for theft of
cotnpany i;>ropecty.
10. Complainant subsequently filed a discrimination claim
with the Mine Safety and Health Administration against Mettiki.
Complainant .::t.l leged, among other things, that he had been
dischacged for making safety co:nplaints.
The MSHA Off ice of
'I'echnicn.l Compliance r.tnd Investigation conducted an investigation
of the incident leadin:J to Complainant's discharge. :.iSH:i\
concluded that Complainant had not been discharged for engaging
in ~rotected activity Qnder section 105(c) of the Act.
11. After a state evidentiacy heacing on the events leading
to Complainant's· discharge, the M::iryland Une1nployinent Insurance
Benefits Office found that Co1nplainant had been discharged for
theft of company property and was guilty oE gross misconduct.
A.s
a result, he was disqualiEied fro<n receiving une1nployment
insurance benefits.

2175

12. Complainant did not notify either Mr. Upole or Mr.
Laughton of any alleged hazards or health or safety violations at
the Preparation Plant at any time prior to his discharge on June
21, 1988.
.
13.
If Complainant notified other Mettiki supervisors of
alleged dangers or safety or health violations, neither Mr. Upole
nor Mr. Laughton - - the Mettiki officials who directed and
implemented his discharge - - was aware of it.
Nor did Mr. Upole
or Mr. Laughton have knowledge that Complainant may have spoken
with an MSHA inspector regarding an alleged ice hazard in the
Preparation Plant nine months before his discharge.
14. Mr. Laughton decided to discharge Complainant for theft
of company policy, and for no other reason.
DISCUSSION WITH FURTHER FINDINGS
Section 105Cc> of the Mine Act provides in relevant part
that:
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 right of any miner • • . because
such miner • • • has filed or made a
comolaint under or related to this chaoter,
including a complaint notifying the operator
or the operator's agent, or the
representative of the miners at the coal or
other ~ine of an alleged danger or safety o~
health violation in a coal or other mine . . •
or because such miner has instituted or
caused to be instituted any proceeding under
or related to this chapter or has testified
or is about to testify in any such
proceeding, or because of the exercise by
such miner • . . on behalf of himself or
others of any statutory right afforded by
this chapter.
In order to establish a violation of § 105(c), a coniplainant
must prove that he engaged in protected activity within the scope
of § 105 and that the action taken .:i.gainst him was motiv::ited at
least in part by that activity.

2176

To rebut a orima facie case, an operator must show that no
protected activity occurred or that the adverse action was in no
part motiv~ted by protected activity.
If the operator cannot
rebut the prima facie case _in this manner, it inay nevertheless
affirmatively defend by proving that Cl> it was also motivated by
the miner's unprotected activity and (2) it would have taken the
adverse action in any event for the unprotected activity alone.
The operator bears the burden of proof with regard to the
affirmative defense; the ultimate burden of persuasion that
discrimination has in fact occurred does not shift frorn the miner.
Secretary on behalf of Robinette v. United Castle Co., 3 FMSHRC
803 (1~81).
Complainant has not p~oved by a preponderance of credible
evidence that he was engaged in protected activity that had any
teinpot:'al or causal nexus with his discharge.
On the contrary, the credible evidence shows that
Complainant was considerably less activ9 than other employees in
eApressing safety concerns or complaints and other employees, who
were active in safety complaints, were not disciplined or given
adverse treatment because of their safety activities.
Complainant has not tnade a prirna facie case of
discrimination.
On the other hand, Respondent has proved by a preponderance
of the credible evidence that Complainant was discharged because
of theft of company property and for no other reason.
Respondent's written policy provided for the discharge of
any employee caught stealing coinpany property.
This policy was
given effect at Mettiki.
The testimony revealed, for example,
that Rodney Bird, anothet:' Mettiki employee caught stealing
company property, was promptly discharged by his supervisor, To•n
Shrout, and the Vice-?l'.'esident of Operations, Fred Polee.
Complainant's discharge followed company policy and precedent.
Mr. Upole testiEied clearly and consistently as to the
events that led to Complainant's discharge.
He stated that he
f irat observed Complainant leaving the Preparation Plant
Warehouse and wal~ing toward a path to the Northwest of the
Warehouse on the evening of June 21, 1988, about 9:00 p.m.
(See
Ex. R-1-(Map)).
At the time, 'vir. Upole was driving up the
Warehouse Road towards the Maintenance Shop.
When Complainant
saw Mr. Upole, he stopped at a ~ipe rac~ located 60-70 feet to
i:he Northwest of the Warehouse.
Tr. 593-601.
Mr. Upole's
suspicions were arotised because Compl:iinant was carrying a case
of sealant, a product ~ot generally used by production shift
em9loyees becau~e of its exteµded setting time (Tr. 183; 265,

2177

401; 561-565) and because Complainant had no business at the pipe
rack which was located in the opposite direction from the
Preparation Plant.
Mr. Upole then parked h-is truck and, from the Maintenance
Shop door, observed Complainant walk down the Warehouse Road
toward the Preparation Plant. Tr. 595-597. Complainant
did not go back to the Preparation Plant with the case of sealant.
Instead, he turned to the right when he reached the Upper Road
and walked toward Table Rock Road and the Storage Area, away from
the Preparation Plant. !./
After Complainant was out of sight, Mr. Upole went to the
Warehouse to verify that Complainant had checked out a case of
sealant (which he had done) and then attempted unsuccessfully to
search for the sealant on the property.
Complainant, in the
interim, returned to the Preparation Plant and was working there
at about 9:30 p.m.- when Mr. Upole arrived to pick up ,the
production reports for Mr. Laughton.
When Mr. Upole telephoned
Mr. Laughton to report the production numbers, he also told him
about his observations and his suspicion that Complainant was
stealing.
Mr. Laughton directed Mr. Upole to investigate the
incident and report any developments. Tr. 612-613; Tr. 846-848;
Ex. R-5; Ex. R-9.
In accordance with these directions, at about 10:~5 p.m.,
Mr. Upole positioned himself in the woods to the north of the
Storage Area.
From there he observed Complainant leave the
bathhouse at about 11:20 p.m., cross Table Rock Road and walk
along the path toward the Storage Area.
When Complain3.nt was out
of sight, Mr. Upole walked across Table Rock Road to the
laboratory fro1n which he could see Complainant's vehicle in the
parking lot.
In about five minutes, Mr. Upole observed
Complainant walking toward his vehicle carrying a case of sealant
on his shoulder. •rhe parking lot was well lighted and Mr. Upole
had a clear view of Complainant walking towards his vehicle.

1/

At the direction of the judge, a site visit was conducted by
both parties with Complainant and Mr. Upole, on June
29, 1989. The observations there confirmed Mr. Upole's physical
description of the 3.rea and the relative loc3.tions of the
Warehouse, Maintenance Shop, pipe rack and Storage Area. The
site visit and careful tests and photographs at the site
confic~ed that Mr. Upole could -- despite Complainant's contrary
alle9.'ltions at trial -- have seen Complainant turn onto the U9per
Road frotn the Maintenance Shop.
Supp. Ex. I at 4; .Joint
Statement Regarding June 29, 1989 Site Visit; Supp. Ex. II
Annotated Map.
~ounsel for

2178

Before Complainant reached the driver's door of his vehicle,
Mr. Upole stepped out and greeted Complainant from a distance.
Complainant immediately tried to conceal the case of sealant by
putting it under his truck -behind the wheel on the driver's side.
When Mr. Upole questioned him about the package, Complainant
stated that it was sealant and that Mr. Laughton had given him
permission to take it home.
Based upon his previous conversation
with Mr. Laughton, Mr Upole suggested that he and Complainant go
inside and call Mr. Laughton together to verify Complainant's
claim. Complainant was visibly nervous, but agreed.
Mr. Laughton confirmed over the phone to both Mr. Uphole and
Complainant that he had not given Complainant authority to take
home a case of sealant.
During the conversation, Complainant
stated that he was taking the sealant home to seal his steps.
In concluding the phone conversation, Mr. Laughton directed Mr.
Upole to discharge Complainant for theft, and Mr. Upole did so.
The decision to discharge Complainant was solely Mr. Laughton's.
Members of Mettiki Management, including Mr. Laughton and
Mr. Upole, met with Mr. Upole and two of his co-workers the next
day to discuss the circumstances of Complainant's discharge.
At
that meeting, Complainant admitted again that he had planned to
take the sealant home to seal his front steps and claimed he had
received permission to do so.
Mr. Laughton affirmed his decision
to discharge Complainant for theft.
I credit management's evidence summarized above and find
that Complai.oant was discharged for theft of company property and
for no other reason.
This is not a case of a miner who actively
pursued concerns about the safety of his workplace and was
discharged for expressing those concerns. Complainant was caught
stealing by his supervisor, and was fired for that reason.

The record and the law do not permit, in these
circumstances, a finding of ~ violation under§ 105(c) of the
Mine Act.
CONCLUSIONS OF LAW

1.
2.
the Act

The judge has jurisdiction over this

~roceeding.

Complainant failed to prove a violation of § 105(c) of
ORDER

The Complaint is DISMISSED.

J1).1Jt! ~
~am Fauver

]--a..w. .~

Administrative Law Judge

2179

Distribution:
Thomas W. Rodd, Esq., 264 High Street, Morgantown, WV
CCertifed Mail)

26505

Ann R. Klee, Esq., Crowell and Moring, 1001 Pennsylvania Avenue,
N.W., Washington, D.C. 20004-2505 (Certified Mail
iz

2180

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

NO-V

22041

71989

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
WILLIAM J. BROCK,
Complainant

DISCRIMINATION PROCEEDING
Docket No. CENT 89-24-DM
MSHA Case No. MD 88-10
Tulsa Plant

v.
BLUE CIRCLE, INC.,
DECISION
Appearances:

E. Jeffery Story, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for the
Complainant;
Mark A. Lies, II, Esq., Seyfarth, Shaw,
Fairweather & Geraldson, Chicago, Illinois, for
the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint filed by
the Secretary of Labor {MSHA), on behalf of the complainant
pursuant to section 105(c) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 815{c). The complainant alleges that
the respondent discriminated against him by giving him a verbal
and written warning for taking too long at work breaks and lunch,
a written disciplinary·warning for unsatisfactory job performance, and a 1-day suspension with pay for calling a supervisor at
2:00 a.m., to inform him that he was going on a work break, and
that it did so because of his reporting safety violations to mine
management and calling MSHA to address these violations. MSHA
requests a finding that the respondent discriminated against the
complainant in violation of section 105(c) of the Act, an order
directing the respondent to expunge the complainant's employment
records of all references to the aforesaid disciplinary actions,
an order directing respondent to pay to the complainant all
expenses occasioned by these adverse actions, with interest, and
it seeks a civil penalty assessment against the respondent in the
amount of $2,000, for the alleged violation.

2181

The respondent filed a timely answer to the complaint
denying that it has discriminated against the complainant.
Respondent asserts that the disciplinary actions taken against
the complainant were justified on their merits and w~re unrelated
to the filing of any safety complaints. A hearing was held in
Tulsa, Oklahoma, and the parties appeared and participated fully
therein.
The parties filed posthearing briefs, and I have
considered their ,arguments in my adjudication of this matter.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 301 et seq.
2. Sections 105(c) (1), (2) and (3) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. §§ 815(c) (1), (2) and
( 3) •

3.

Commission Rules, 29 C.F.R.

§

2700.1, et seq.

Issues
The critical issue in this case is whether or not the
disciplinary actions taken against the complainant by the respondent were motivated by the respondent's desire to punish him, or
otherwise retaliate against him, because of his safety complaints
to management and MSHA. Additional issues raised by the parties
are identified and disposed of in the course of this decision.
stipulations
The parties stipulated to three documents which reflect the
disciplinary action taken against Mr. Brock, and they are as
follows (Tr. 5) :
1. A memorandum from Mr. Jim King to Mr. Brock,
dated August 28, 1987, concerning a verbal warning
given to Mr. Brock on August 17, 1987, "for taking too
long at breaks and lunch" (Exhibit C-1).
2. A memorandum from Mr. Jim King to Mr. Brock
dated September 18, 1987, and titled "Disciplinary
Letter-Unsatisfactory Job Performance" (Exhibit C-2).
3. A memorandum dated September 29, 1987, from
Mr. Jim Hicks, addressed to Mr. Brock and others, as
well as his "personnel file," concerning a disciplinary
meeting held on September 28, 1987, to discuss
Mr. Brock's "work performance and conduct" (Exhibit
C-3) .

2182

The parties also stipulated to the respondent's history of
prior civil penalty assessments for the period August 17, 1987
through August 16, 1987 (Tr. 6, exhibit C-4).
Complainant's Testimony and Evidence
Complainant William J ~· (Jerry) Brock, testified that he has
worked for the respondent for approximately 19 years, and that he
is classified as a repairman-welder working in the maintenance
department under the supervision of Mr. Jim King. Mr. Brock
confirmed that he serves as the vice-president of his local
union, International Brotherhood of Boilermakers, and also serves
as the miner's representative, and member of the safety committee. His duties in this regard include safety matters, and
accompanying MSHA inspectors on theil:' mine inspections. He
confirmed that he received a safety complaint on or about
August 11, 1987, concerning some roofing work being done by
independent contraetors at the plant. He explained that he
pursued the complaint with several management officials at the
mine, including Mr. King, and that he was permitted to go to the
area where the work was being performed to look into the complaint, and that he subsequently contacted MSHA to report the
matter. He stated that the respondent's safety and employee
relations manager Bob McCormick informed him that the contractor
personnel were non-union and "they were none of my business."
Mr. Brock confirmed that MSHA inspectors came to the mine in
response to his complaint, and that he subsequently met with them
at the mine on August 14, 1987. However, since the contractors
were not working that day, he was informed by the inspectors that
"there wasn't anything they could do about it" (Tr. 9-18).
Mr. Brock identified exhibit C-1 as a "verbal warning" he
received on August 17, 1987, from Mr. King for taking long lunch
and other breaks, and he confirmed that he discussed the matter
with Mr. King and asked him to be more specific, but that
Mr. King was unable to tell him the specific days and times that
he took too' long for lunch or breaks (Tr .. 19). Mr. Brock also
identified a memorandum dated September 18, 1987, from Mr. King
concerning his unsatisfactory work performance in connection with
work which he performed on two sliding gates and two screws on
the No. 2 clinker/cooler dust collector (Tr. 20).
Mr. Brock stated that the verbal warning was not justified
because all of the miners took their allotted lunch hour and
breaks together and "that when its time to go everybody just kind
of gets up and goes" (Tr. 22). Mr. Brock stated that all lunches
and breaks are taken together in the same room, and that the
normal allotted time for lunch is 35 minutes, from 12 to 12:35,
and that the normal breaks are for 15 minutes each, at 9:30 and
2 : 0 0 (Tr . 2 5 ) .

2183

Mr. Brock explained the work that he and a trainee performed
on the dust collector in question on September 16, 1987. He
confirmed that after he requested Mr. King to explain his statement that he was spending too much time away from his work on
personal business, Mr. King gave him a written explanation "a
couple of days to a week" ~fter he received the memorandum of
September 18, 1987, and informed him that anything not related to
his job was considered to be "personal business." ·Mr. King did
not give him any specific instances of ''personal business" on
that particular day (Tr. 27-30).
Mr. Brock identified exhibit C-3 as a memorandum concerning
a September 28, 1987, meeting with maintenance manager John
Bayliss and plant manager J. R. Hicks over an incident which
occurred on September 25, 1987. Mr. Brock explained that on that
day, he was rinsing off his face and hands during the day shift
at 11:40 or 11:45 a.m., before the lunch hour, after working in a
dusty hopper. Mr. Bayliss accused him of washing up early, and
instructed him that before taking any future breaks he was to
call him (Bayliss) before taking a break. Mr. Brock stated that
he requested Mr. Bayliss to give him a letter confirming that he
was to call him before taking any breaks, and Mr. Bayliss then
informed him that he was to call him, or supervisors Jim King or
Frank Vargas before he washed up for any breaks (Tr. 33).
Mr. Brock stated that he worked the midnight shift on
September 25, 1987, and that following Mr. Bayliss' instructions,
he called Mr. Bayliss at his home at 2:00 a.m., to inform him
that he was washing up before taking a break. Mr. Brock stated
that he called Mr. Bayliss because Mr. Vargas and Mr. King were
not working the shift. The meeting in question was called to
discuss this call, and Mr. Brock was suspended for 1 day with
pay, and was told "that I was to .take the day off and think about
whether I wanted to continue working for Blue Circle or not" (Tr.
35). Mr. Brock understood that he was given the day off because
of his call to Mr. Bayliss, and he believed that the disciplinary
actions taken against him were the result of his calling MSHA
(Tr. 36-37). Mr. Brock stated that his last disciplinary action
occurred approximately a year and a half prior to the verbal
warning of August 17, 1987 (Tr .. 37).
On cross-examination, Mr. Brock confirmed that he had permission from Mr. Bayliss to observed the work of the contractors
on August 11, but that he (Brock) had no knowledge as to the
respondent's policy concerning its dealing with contractors.
Mr. Brock confirmed that prior to this time he had brought a
number of safety matters to the attention of management during
monthly safety meetings and no action was ever taken against him
by the respondent for doing this. Mr. Brock could not recall
that Mr. King spoke with him a week prior to the verbal warning
of August 17, concerning his leaving his job too early to wash up

2184

for lunch and that he was going to the shop too early to wash up
to leave work before the regular quitting time (Tr. 38-43).
Mr. Brock testified to the work that he and a trainee performed on the slide gate. Mr. Brock stated that Mr. King was
upset with him because he told him that he did not know whether
the gate was opened or closed, and that Mr. King told him that
his workmanship on the gate in question was not satisfactory (Tr.
43-49) .
Mr. Brock confirmed that at the time he received the letter
from Mr. King concerning his verbal warning for being away from
his job on personal business, Mr. King said nothing about MSHA or
the roofing contractor, and said nothing about his safety complaint (Tr. 50). With regarq to the washing-up incident,
Mr. Brock confirmed that Mr. Bayliss told him he was washing up
too early, and that he was to contact him before he took his
break or when he was washing up to take a break so that he would
know when he was starting his break. Mr. Brock denied that
Mr. Bayliss advised him that same afternoon that he was to contact his shift supervisor and tell him that he was taking his
breaks, and he stated that Mr. Bayliss told him to contact
Mr. King or Mr. Vargas (Tr. 52).
Mr. Brock confirmed that he telephoned Mr. Bayliss at his
home at 2:00 a.m., and advised him that he was calling to inform
him that he was going to wash up before taking his break, and
that Mr. Bayliss responded "Is this some form of harassment" (Tr.
52). Mr. Brock confirmed that he tried calling Mr. Bayliss again
at 6:00 a.m. that same morning but his line was busy, and that he
did so because "He never changed his orders" (Tr. 53).
Mr. Brock confirmed that at the meeting of September 29, his
prior disciplinary letters which were in his personnel file, as
well as his phone calls to Mr. Bayliss, were discussed.
He also
confirmed that plant manager J. K. Hicks, who was in charge of
the meeting, informed him that his personnel file did not reflect
a good work record or attitude, and that Mr. Hicks informed him
that he would be given a day off to think about whether he wanted
to continue working for the company. Mr. Brock confirmed that he
took the day off with pay, and upon his return, he continued to
serve as a union officer ~nd miner's representative, and that the
respondent has taken no action against him because of any safety
complaints since his return to work (Tr. 56).
Mr. Brock identified certain documents from his personnel
file, exhibits R-1 through R-7, as copies of prior disciplinary
warnings he received from 1978 up to and including September
1987, regarding attendance, absenteeism, and tardiness (Tr.
56-57).
In response to a question concerning prior ongoing
counseling given to him and all others in his maintenance department concerning timely breaks and lunch hours, Mr. Brock stated

2185

that "Mr. King would just say watch your breaks and stuff like
that, you know, to everybody. Kind of a general statement" (Tr.
58) .
Mr. Brock confirmed that Mr. King became his supervisor on
approximately January 1, 19_87, and that he (King) had previously
served as president of the union local. Mr. Brock.did not know
whether or not Mr. King had also served as the miner's representative, and he.could not recall whether Mr. King began counseling
all employees in his department in 1987 about lunch hours and
breaks because Mr. Hicks was "leaning on him" about these matters
(Tr. 58) .
In response to further questions, Mr. Brock stated that he
believed that the safety of contractor employees, even though
they are non-union, fall within his safety duties as long as they
are on mine property, and that if he observes such employees in
his work area without proper safety equipment, he will speak with
them. He stated further that "most of the time" he will seek
management's permission before leaving his job to speak with
contractor employees, and that when Mr. Hertzog advised him that
contractor employees "wasn't any of my business," this was the
first time he had been told this (Tr. 64).
Mr. Brock confirmed that when he received the safety complaint concerning contractor employees, he did not seek·out the
employees or speak with them, but he did speak wit~ Mr. Bayliss
about it before calling MSHA. Mr. Brock stated that he did not
know whether Mr.· Hicks or others in management were aware of the
fact that he had called MSHA (Tr. 65). He also confirmed that he
had previously called MSHA inspectors about "general questions"
and complaints. He believed management knew that he had called
MSHA because "I went and asked Mr. King if I could use the phone
to call them" (Tr. 66).
Mr. Brock stated that he got along "fair-to-middling" with
Mr. King, and that "I've had better relationships but I've had
worse too." He confirmed that when he called Mr. Bayliss at
2:00 a.m., he "guessed" that he woke him up, and he stated that
Mr. Bayliss sounded "sleepy" and "agitated" (Tr. 69). Mr. Brock
stated that after the meeting concerning this call, he was
instructed to call the supervisor who was on duty, rather than
Mr. Bayliss, when he was going to take a break, and he confirmed
that Mr. Bayliss never put these instructions in writing (Tr.
70). Mr. Brock confirmed that after attempting to call
Mr. Bayliss again at 6:00 a.m., he informed production foreman
Jake Barber that Mr. Bayliss's phone was busy and that he was
going to take his break (Tr. 71).
Mr. Brock stated that the complaint concerning the contractor employees and roofers was the only time he made a safety
complaint to management, and he believed that the verbal warning,

2186

disciplinary letter, meetings, and Mr. Bayliss' instructions
concerning lunch and other breaks were all the result of management 1 s punishing him for calling MSHA.
In support of this conclusion, Mr. Brock stated that he had not previously been
counseled by management "on anything of that nature," and that
Mr. King had previously informed him that "I was twice as productive as I used to be" (Tr.· 72).
Mr. Brock stated that as a result of his call to MSHA, two
inspectors came to the mine and met with him and Mr. Bayliss and
Mr. Hicks, to discuss the contractors' use of safety glasses and
hard-toed shoes, but that no violations were issued because no
contractors were working that day. Although no one from management discussed his call to MSHA, Mr. Brock stated that he was
under the "general impression" by the "way they were acting" and
their "general tones," that "they weren't too happy about it"
(Tr. 7 4-7 5) .
Robert Joe Thompson, respondent's lab technician, testified
that he previously worked as a maintenance welder repairman, and
that he serves as president of the local union at the mine. He
confirmed that he attended the September 28, 1987, meeting with
Mr. Brock and management concerning his work performance, and
that Mr. Brock's telephone call of 2:00 a.m. to Mr. Bayliss was
discussed.
Mr. Thompson stated that Mr. Bayliss told him that he
had given Mr. Brock a direct order to call him, Mr. Vargas, or
Mr. King, before washing up for any breaks. ·Mr. Thompson also
stated that he repeatedly asked Mr. Hicks for instructions as to
who Mr. Brock was to call in the future, but received no answer,
and Mr. Hicks kept referring to Mr. Brock's work record and
attitude, and indicated that "he should act as an adult" (Tr.
79) .
Mr. Thompson stated that on August 11 or 12, 1987, Mr. Brock
requested him to call MSHA because contractors were working on a
.roof without wearing safety equipment. He confirmed that he did
not tell management about the call, and management did not indicate that they knew he (Thompson) had called. However,
Mr. Hertzog stated to him that there was no sense in Mr. Brock
calling MSHA because such matters should be handled "in-house"
(Tr. 80).
Mr. Thompson stated that he knew of no one being previously
suspended with pay and he explained the procedures for employee
breaks, and stated that while working in the maintenance department, he observed employees abusing the time for breaks and
lunch, that it happens "everyday" (Tr. 84). When asked how
management addresses these abuses, Mr. Thompson replied "it
depends on who you are, how much brown nosing you do with the
foreman.
If th~ superintendent don't like you, you're going to
take 2 or 3 minutes to get to break, take a break and get back to
work.
If they like me I can take 30, 45, an hour" (Tr. 85).

2187

Mr. Thompson believed that Mr. Brock was being treated differently from other employees because "right after they thought he
made this call to MSHA, he gQt into a big argument with
Mr. Hertzog and Mr. McCormick" (Tr. 86). He also believed that
the respondent intends to fire Mr. Brock, and is awaiting the
outcome of this proceeding_~o do so (Tr. 87). He also stated
that the respondent did not know until his testimony in this
hearing that it was he who called MSHA, and that Mr. Hertzog
suspected that Mr. Brock had called (Tr. 88).
Mr. Thompson confirmed that he serves as an alternate on the
mine safety committee, and while he believed he had the authority
to ask a contractor employee about wearing a hard hat, he has
always contacted management and requested it to insure that
contractor employees wear hard hats or safety glasses (Tr. 89).
Mr. Thompson disagreed with management's position that the safety
of contractor employees is within management's prerogative, and
is of no business of the regular safety committee. Mr. Thompson
stated that he did not know whether contractor employees are
union or non-union (Tr. 93).
Mr. Thompson stated that he gets along fine with Mr. King,
but that everyone does not get along "fine" with each other, that
there is a lot of "chain pulling" going on, and although he does
not sometimes tell management how to run the mine, management
sometimes tells him to "mind his own business" (Tr. 94).
Mr. Thompson believed that management was "fed up" with Mr. Brock
when they thought he called MSHA after telling him that "it was
none of his business" (Tr. 96). Mr. Thompson wa~ not aware of
any other employee being disciplined over breaks or lunch time,
and that prior to Mr. Brock's case, he was never called in to any
management meetings about such matters (Tr. 100).
On cross-examination, Mr. Thompson confirmed that his conversation with Mr. Hertzog concerning the handling of safety
complaints "in-house" took place in October or November of 1987
in the conference room when Mr. Hertzog came to the mine to
explain insurance benefits to mine employees (Tr. 107-108).
Mr. Thompson stated that Mr. Hertzog was referring to the meeting
between Mr. Brock, Mr. Hertzog, and Mr. McCormick when he made
the statement that it was not Mr. Brock's business, and the fact
that he believed Mr. Brock had called MSHA (Tr. 109).
Mr. Thompson confirmed that he checked no company records to
support his statement that no other employees have ever
previously been suspended for a day with pay. He also confirmed
that Mr. Brock filed a grievance over the suspension, and that it
is still pending (Tr. 111).
Arthur Wayne Roache, repairman/welder, confirmed that he has
worked for the respondent for 21 years, and that he attended the
September, 1987, meeting in Mr. Bayliss' office as a witness on

2188

behalf of Mr. Brock. Mr. Roache stated that the meeting concerned Mr. Brock's telephoning Mr. Bayliss during the night, and
that at the meeting, Mr. Brock requested Mr. Bayliss to put in
writing his instructions as to who he was supposed to call before
taking any breaks. Mr. Roache stated that Mr. Bayliss told
Mr. Brock that he did not have to put it in writing, and after
the meeting got "a little heated," Mr. Bayliss stated that
Mr. Brock was to call him, Mr. King, or Mr. Vargas before taking
any breaks (Tr. 113).
Mr. Roache confirmed that he worked the same hours as
Mr. Brock, but on different jobs, and that they took their breaks
at the same time. When asked whether he (Roache) had ever gone
beyond the normal break hours, Mr. Roaches responded "I've took
more; I've took less." He also stated that it was not unusual
for other employees to take more time, and that "sometimes you
get in later and go later," and that "sometimes the clocks will
be a little different or whatever, and it will be some that go
earlier." He admitted that lunch and break hours have been
abused, and that "sometime last week I probably abused it.
I
probably went early," and that he had "probably" done this during
August or September of 1987, but received no verbal or reprimands
for doing so (Tr. 117). He identified miner Bob Clark as one who
"went down 2 or 3 minutes early," and he stated that "all of us·
do it. Everybody is going to exceed it a little," and he confirmed that this was an ongoing practice during August and
September of 1987, as well as "today." He further stated that
"we have a whistle. Sometimes it works; sometimes it doesn't"
(Tr. 118).
Mr. Roache confirmed that Mr. King was his main supervisor
in August and September of 1987, and that Mr. Bayliss and
Mr. Vargas also served as his supervisor. He confirmed that he
was aware of the fact that Mr. Brock had received disciplinary
warnings for exceeding lunch or break times, but knew of no other
employees who have received any such actions. He stated that
"we're generally called together as a group and told to watch our
breaks and lunches," and that he was not aware of any other
occasions that Mr. Brock was singled out over this issue (Tr.
119). He confirmed that he was not aware of the prior disciplinary actions taken against Mr. Brock, although he did recall that
"they was on him over being late," but did not recall the time
frame (Tr. 120).
Mr. Roache confirmed that he has been the subject of disciplinary action by management for being late or missing work,
and has been counseled over missing too much work (Tr. 120). He
explained management's absentee policy and program which was
established by Mr. Bayliss, and he confirmed that employees were
aware of it. He also confirmed that he had been called to
Mr. Bayliss' office and counseled about missing too much time
from work, but that nothing further happened to him (Tr. 121).

2189

On cross-examination, Mr. Roache confirmed that nothing was
said about employee health and safety at the meeting he attended
with Mr. Brock, and there was no discussion about MSHA. He
believed the meeting lasted 10 minutes, and he did not hear
Mr. Bayliss tell Mr. Brock· to call the supervisor who was on duty
before taking a break. He ·confirmed that the respondent has had
an absentee program in effect since he has worked at the mine,
that management monitors attendance and absenteeism, and that
once an employee is in the program he is subject to further
discipline. He believed that Mr. Brock was placed in this program, but did not know when, and he explained that when management decides that an employee has missed too much work "they call
you in and you start through the steps." He stated that he has
never been "singled out" and counseled about his breaks or lunch,
and that this is always done as a group. He was aware of one
employee who was counseled "one-on-one" about his absenteeism,
but could not reca-11 the details (Tr. 127) . He confirmed that he
has attended meetings when Mr. Bayliss has talked about "tightening up on going to breaks, coming from breaks, and same time
periods in going to lunch and coming back from lunch," and that
Mr. Bayliss holds meetings ori this subject "when he thinks it's
needed" (Tr. 127). Mr. Roache confirmed that "counseling" is the
first step leading to further discipline, and that following
counseling, written or verbal warnings may be issued (Tr. 129).
David Mike st. John, accounts payable clerk, and member of
the local union, testified that his office is in the general area
of Mr. Hicks' office. He confirmed that he was at work when the
two MSHA inspectors came to the mine on August 13, 1987, and met
with Mr. Hicks and Mr. Bayliss just outside of Mr. Hicks' office
door. Mr. Brock was not present then, but was called in later.
Mr. st. John stated that he asked Mr. Bayliss what was going on,
and that Mr. Bayliss was agitated and stated "that god damn Brock
called MSHA on us." Mr. st. John stated further that he overheard a conversation that same afternoon or the next day when
Mr. Brock, Mr. Hertzog, and Mr. McCormick were meeting "with the
MSHA people," and heard Mr. Hertzog tell Mr. Brock that "this was
a family matter and he didn't have any business calling MSHA, and
that would Jerry (Brock) like for him to call the IRS on him"
(Tr. 132). Mr. st. John stated that Mr. Hertzog appeared
agitated.
On cross-examination, Mr. st. John confirmed that he had
never previously heard Mr. Bayliss swear, and that he is a very
soft spoken individual. He confirmed, however, that he "didn't
use soft words at that time" and that Mr. Bayliss made the statement as he was passing through the hallway (Tr. 134). He was not
sure of the time this was said, and stated that "I just know that
they were talking about Jerry calling MSHA," and that he overheard the second conversation while he was passing through the
hallway coffee shop (Tr. 135).

2190

Mr. St. John confirmed that he was serving as the elected
union secretary/treasurer in August of 1987, and still serves in
that capacity. He confirmed that he recalled Mr. Hertzog's
statement because he considered it a threat to Mr. Brock and told
him that "you'd better look out." Mr. St. John stated that
Mr. Brock responded that "we have to do what we have to do" (Tr.
138) •
Anthony Rodney Sutherland, laborer, confirmed that he has
worked for the respondent for over 8 years, and that he previously worked in the maintenance department for about 5 months,
including August and September, 1987, on the evening shift.
Mr.King was his supervisor at that time, and Mr. Brock was working the day shift. Mr. Sutherland confirmed that on one occasion, he was on a break with Mr. King and other members of the
work crew, and that the break lasted for 25 minutes. He confirmed that he ang the other maintenance employees did not
receive any verbal or written warnings for taking excessive
breaks, and that he has occasionally exceeded the allotted
15 minute break period for "a minute or two," and that he has
observed other employees doing the same thing (Tr. 144). He
confirmed that Mr. King was aware of the fact that he took a
25 minute "that one night," but that he was not aware of the
other instances when this has occurred (Tr. 144).
On cross-examination, Mr. Sutherland stated that he could
not recall the date that he took the 25-minute break with
Mr. King, but confirmed that it occurred during a shutdown period
when maintenance was being performed and when the work schedule
was a "little bit" different (Tr. 146). He confirmed that this
was the only time during his 8 years at the mine that Mr. King
took an extended break. He also confirmed that he has attended
meetings where Mr. King has talked "about attendance and keeping
your break times to what they should be and your lunch times to
what they should be," and that he has heard Mr. King state "Watch
your breaks.
Don't come in early.
Don't leave early. Take a
15-minute break" (Tr. 147).
In response to further questions, Mr. Sutherland stated that
Mr. Hicks was the plant manager and Mr. King's supervisor at the
time of the extended break. He did not know whether Mr. Hicks
was aware of the extended break, and confirmed that Mr. Hicks
would not be in a position to know when employees took breaks
unless someone were to tell him (Tr. 149). Mr. Sutherland confirmed that he has never been counseled for being late (Tr. 149).
Maurice Lamar Harris, laborer, stated that he has worked for
the respondent for 15 years, and that on September 26, 1987, he
was working in the maintenance department as a trainee. He
confirmed that he worked with Mr. Brock for 3 days during this
time, and that Mr. Vargas had instructed them to repair the gates

2191

on the No. 2 dust collector at the "west end." There were four
or five different gates in the area, and Mr. Vargas did not
specify the particular gate in need of repair, and after searching for the equipment required to make the repairs, he and
Mr. Brock went to the area and proceeded to take one of the gates
apart. While they were wotking, Mr. King arrived in the area and
asked them what they were going, and that he explained to
Mr. King that they were taking the gate apart. Mr. King advised
them that it was the wrong gate and instructed them to put it
back together, and that this took an hour or two to finish.
Mr. King then pointed out the correct gate which was in need of
repair, and the work was finished by 3:00 p.m., a half-hour
before the shift had ended (Tr. 150-156).
Mr. Harris stated that Mr. Vargas had come to the area where
he and Mr. Brock were working on the gate before Mr. King did,
and that Mr. Brock had gone to have his blood pressure checked at
that time and was not there. Mr. Harris stated that he and
Mr. Brock took the-normal 15-minute break and 35-minute lunch
hour that day. However, Mr. Harris confirmed that on other
occasions, he and other employees had taken more than their
allotted time for breaks, and that he was never reprimanded for
doing this (Tr. 157). Although Mr. Harris believed that he and
Mr. Brock had done a good job in repairing the gate, Mr. King
informed them that the work was "shoddy," and Mr. Harris stated
that the latex caulking would come out at the edges when it is
pressed down, but that the gate was working when they finished
the job (Tr. 158).
On cross-examination, Mr. Harris stated that the· work on the
gate in question was the first time he had ever worked on such a
gate, that Mr. Brock was showing him how to repair it, and that
they received the work assignment at 7:00 a.m. He confirmed that
Mr. Brock pointed out the gate which they believed needed to be
repaired, and he explained the time spent on gathering up the
needed tools to do the job. He stated that Mr. King showed up
before 9:30 a.m., and after informing him that they were working
on the wrong gate, he proceeded to reinstall the gate bolts which
he had removed, and Mr. King left the area. Mr. Brock returned 3
or 4 minutes later, and was there before 8:00 a.m. Mr. Harris
stated he informed Mr. Brock that Mr. King had been by and
informed him that they were working on the wrong gate, arid that
Mr. Brock had been gone for about 15 minutes to get his blood
pressure check, but was back at 10:15 or 10:30 a.m. The wrong
gate had been repaired and reinstalled before the lunch break
(Tr. 166) .
Mr. Harris stated that after lunch, Mr. Brock went to see
Mr. McCormick, and returned to work on the gate at 1:00 p.m., or
shortly thereafter (Tr. 167). Mr. King returned again in the
afternoon, and discussed the work being performed on the gate
with him, and Mr. Harris heard Mr. King use the term "shoddy" in

2192

referring to the work he and Mr. Brock were performing on the
gate (Tr. 169). Mr. Harris stated that he could not recall he
and Mr. Brock sitting in the storeroom laughing and talking with
another employee when Mr. King came in and told them "You're ten
minutes past the break. It's time to get back" (Tr. 169). He
did recall Mr. King comingto the storeroom while he and
Mr. Brock were there, but did not hear Mr. King's statement (Tr.
170). Mr. Harris confirmed that another crew was working on
gates nearby, but did not know how many gates they had completed,
and that he did go to the area to borrow a tool from the other
crew (Tr. 171). He confirmed that he and Mr. Brock discussed
Mr. King's comment about the "shoddy" work, and that Mr. Brock
told him "Don't even worry about it" (Tr. 174). He also confirmed that although Mr. Brock spent some time looking for ·a
welder, there was no need for any welding work on the second gate
which they repaired (Tr. 175). He also confirmed that Mr. Brock
went to get his blood pressure checked because that was the only
time the mine nurse was available, and that this was part of a
routine check available to employees (Tr. 177).
Robert A. Clark, repairman/welder, confirmed that he has
been employed by the respondent for 21 years, and that on approximately September 16, 1987, he was performing work on some dust
collector slider gates adjacent to the area where Mr. Brock and
Mr. Harris were working. He confirmed that he began work on this
job a week or so prior to this time, and that on September 16, he
repaired "two, maybe three" gates, and he explained the work he
performed, and the amount of time required to do the work. He
confirmed that after completing his work, he helped Mr. Brock and
Mr. Harris repair the gate they were working on because they had
some alignment problems (Tr. 179-184).
Mr. Clark confirmed that he .and other employee$ have taken
more than the allotted 15 minutes for breaks, and that he has
taken more than 35 minutes for lunch and that Mr. King,
Mr. Vargas, and Mr.; Bayliss were aware of it because "they may be
present when I come in to wash up early. Or, if it's getting
back late, they may be present when I get back to the job." He
could not recall that he or any other employee were ever given
any oral or written reprimands for taking excessive break or
lunch times (Tr. 185).
On cross-examination, Mr. Clark confirmed that he observed
Mr. King and Mr. Vargas "coming and going" in the area where
Mr. Brock and Mr. Harris were working on the gate, and that they
were working approximately 35 feet from where he was working. He
confirmed that the subject of overextending lunch periods and
breaks has been discussed with the people in the maintenance
department periodically at safety meetings (Tr. 188). He confirmed that he has observed Mr. Brock stop and "chit-chat" with
people around the workplace, and has· observed him being slow in

2193

coming back from breaks and lunch because he's talking to people
(Tr. 189-190).
Mr. Clark identified exhibit C-1, the memorandum concerning
the August 17, 1987, meeting between Mr. King and Mr. Brock, and
although the document reflects that he was present, Mr. Clark
could not recall being at the meeting (Tr. 191). Mr. Clark
confirmed that he was aware of the fact that Mr. Brock was a
member of the safety committee, that he has approached him with
safety complaints, that it was possible that Mr. Brock was discussing safety matters and union business when he stops and talks
to people, and that he has been present when this has happened
(Tr. 192).
Respondent's Testimony and Evidence
James R. King_, maintenance supervisor, testified that he has
been employed by the respondent since 1972, and he confirmed that
he served as the elected president of the local union from 1975
to 1977, and again from 1979 to 1984, and served as vicepresident in 1978. He also confirmed that he served as the
miner's representative for each of the years that he served as
president of the union, with the exception of 1975. He also
confirmed that he was familiar with the Act and the employee's
rights under the Act, that he was involved in reporting health
and safety complaints on behalf of employees while a member of
the union, and that he was never discouraged from doing so by the
respondent. He stated that during the time he served as union
president and representative of miners, he was not aware of any
miners ever being disciplined by the respondent for calling MSHA,
that he himself has called MSHA, but was never disciplined for
doing so (Tr. 199).
Mr. King stated that he accepted a management position with
the respondent in February, 1986, and became the maintenance
supervisor in January, 1987, and he described his duties. He
confirmed that during his tenure with the union, he received
"group counselling" from the respondent regarding the proper time
periods for lunch periods and morning and afternoon work breaks
from time-to-time, and that when he became the maintenance supervisor, he conducted such counselling for the employees he was
responsible for.
He explained that he did this at safety meetings, and that Mr. Brock was present when this was done. He
confirmed that he also conducted "one-on-one" talks with each
employee in his department with respect to what he expected on
the subject of breaks, and that after his initial counseling he
still had problems with Mr. Brock, and employees Bill Hobbs and
Dean McKellips. He explained that his individual talks with
Mr. Hobbs and Mr. McKellips took place on the same day that he
spoke with Mr. Brock, and that Mr. Hobbs and Mr. McKellips
responded to his talks and improved their work habits and break
practices (Tr. 199-205).

2194

•
Mr. King confirmed that he spoke with Mr. Brock concerning
his breaks and he explained what transpired at the meeting as
follows (Tr. 205-208):
Anyway, I told Jerry that he was taking too long on
breaks, that I'd been.:..·-you know, I'd been paying
particular attention to the breaks. They all knew I
had been. Jerry's response was, "Give me a specific
instance and time." And I said, "Jerry, for the last
week, you've been late every break, every lunch during
the past week." I said, "You come in too early, you
leave too late on each and every of fifteen occasions
that I've watched you."
Jerry said, "well, I don't believe I have. Give
me a specific example." I said, "Jerry, I'm telling
you, each and every time, you're the last one back to
the shop. You're the first ~ne to come in. This deal
with going to break in the afternoon and taking a
30-minute shit after the break has got to stop." Jerry
said, "That's just a normal function of mine." And I
said, "If it is, I'd be thinking about clocking out."
And that was the words I used to do that. Jerry said
he didn't feel like he was abusing it.
I said, "Well,
this is a verbal warning because I feel like you are.
I want to document it, so I'm giving you a verbal
warning." And that was the results of that meeting.

*

*

*

*

*

*

*

Q. And the week that you were referring to that you
had observed him. You said you observed him for a week
before you gave him this warning. Was that the week of
August 10th, 1987?

A.

Yes, I assume.

Yes, sir.

Q. And you said that you had observed him at all the
breaks. How were you able to do that? Was he coming
into the shop near you, or how were you--

A.
I was being back in the shop at the time the guys
were coming to and from their breaks and their lunch
period.
I was making a point to be in the shop to
watch everybody, because they come in from all
different placed.
And secondly, the way we assign our jobs, everybody is not out for the day. Some guys may be coming
back in. They may be through with their jobs at ten or
fifteen minutes till break, and at that time, it's time

2195

..
to reassignment them and communicate with them what you
want. There's no sense in trying to send them out;
they don't have time to get back to the job. But it's
the best time to communicate with everybody how the
jobs are going because I can't be on all the jobs at
once.
Mr. King confirmed that a week prior to Mr. Brock's receipt
of his verbal warning, Mr. Brock spoke to him about his belief
that contractor employees were not following MSHA's guidelines on
safety equipment. Mr. King stated that he informed Mr. Brock
that he would look into the matter, and th~t he immediately
checked on the contractor employees and spoke with them about
wearing hard-toed shoes, hard hats, and safety glasses, but could
not recall whether he informed Mr. Brock that he had done so.
Mr. King denied that the verbal warning had anything to do with
Mr. Brock's complaint concerning contractors or with MSHA, and
that this was never brought up. He stated that at the time of
the verbal warning-to Mr. Brock, he had no information that
Mr. Brock called MSHA. He also.confirmed that the decision to
issue the verbal warning was his (Tr. 209-210).
Mr. King explained the circumstances under which Mr. Brock
and Mr. Harris were assigned to do some work on the slide gates
on September 16, 1987, and he confirmed that the work assignment
was made at 7·: oo a.m., and that barring any problems, he would
have expected the work to be completed by 1:00 p.m. He stated
that he checked the progress of the work at 9:30 a.m.,
11:50 a.m., and 3:00 p.m., and also visited the shop and waited
there until the employees came back from their break. During his
initial visit to the work area, Mr. King confirmed that Mr. Brock
was not there, and that he advised Mr. Harris that he was working
on the wrong gate, and asked about Mr. Brock's absence.
Mr. Harris stated "I don't know. He went to use the bathroom or
something" (Tr. 213). Mr. King later visited the storeroom at
the conclusion of the 2:00 p.m., break, and Mr. Harris was there,
but Mr. Brock came in later and he and Mr. Harris talked until
2:27 p.m., and then "kind of casually" returned to their work
(Tr. 214). At the conclusion of the work shift, he found
Mr. Brock back at the shop at 3:17 p.m., standing by his locker
ready to go home, and he confirmed that normal "wash-up" time
starts at 3:20 p.m., and that Mr. Brock was cleaned up and ready
to leave at 3:17 p.m. (Tr. 216).
Mr. King stated that when he returned to the slide gate
area, the gate was still stuck, and that he had previously told
Mr. Brock about this and that it needed to be corrected.
Mr. King stated that he assigned a night shift repairmen, M. U.
Taylor, to fix the gate and he stayed until the work was completed. He confirmed that the repairs took approximately
20 minutes (Tr. 217). Mr. King confirmed that as a result of

2196

Mr. Brock's work performance with respect to the gate in question, he took disciplinary action against Mr. Brock, and he
explained as follows (Tr. 217-220):
A. What I said to him was that I felt like, you know,
the entire job that day was entirely wasted because he
hadn't applied himself. And the basic problem we had
that day was Brock wasn't on the job. The only time I
found Brock.on the job was at three o'clock when I came
back.
The other times where I looked up on the job or I
went up on the job, he wasn't there. And he told me
that he had seen Mr. Hicks and that he had went down to
take his blood pressure and saw Mr. Hicks in the
console, and he had talked to him for 30 minutes or so,
one time. At this meeting, that's what he told me.
And I knew that he had been to see Mr. McCormick
at--right after lunch. They had to finish a safety
meeting or something. But that didn't take very long,
as it turned out. It just took 30 minutes or-- He was
supposedly back on the job by 1:00.
Q. Were you the person that made the determination to
issue this disciplinary letter, sir?

A.

Yes.
-

Q. And did your issuance of this disciplinary letter
have anything to do with the fact that Mr. Brock had
told you about the outside contractors not wearing
personal protective equipment?
A.

No, didn't have anything to do with it.

Q. And did the issuance of this disciplinary letter
have anything to do with any discussions that Mr. Brock
may have had on September 16th with Mr. McCormick about
the safety committee?

A.
I wouldn't have known what those were.
versation was •

That con-

Q. Now, in the letter or in the warning, you talk
about "taking care of personal business." What did you
mean by that?

A. Taking-- Well, he'd been down to get his blood
pressure checked. Any time any of the employees leave
the job to be gone, anything other than job-related
trips such as to get parts or go find equipment or

2197

something, and they're going to be gone for any period
of time over like five minutes, they're supposed to
tell me.
He had been gone 30, 45 minutes, and he hadn't
notified me. Which puts me in a spot because if my
supervisor or the plant manager asks me, "What's he
doing over there?" I'm supposed to know. I'm supposed
to know where he's at unless he's looking for-- I'm
assuming it's needed tools unless . . . .
Mr. King reiterated that his disciplining of Mr. Brock had
absolutely nothing to do with anything he may have done with
MSHA, and while he knew that Mr. Brock was·a committeeman, he
stated that "I had no idea of anything he was doing with MSHA"
(Tr. 221).
Mr. King stated that he issued no warning to Mr. Harris
about his work activities of September 17, 1987, and while he
assumed that he had previously spoken with him about breaks at
one of his meetings, he could not recall doing so. He explained
that Mr. Harris was a probationary employee, and he identified
exhibit R-8 as a copy of a probationary work report concerning
M~. Harris, including his notations that he warned Mr. Harris
about taking excessively long breaks on September 16, 1987, and
October 7, 1987 (Tr. 222-223). He explained that he spoke with
Mr. Harris about his break of September 16, but did not formally
"warn" him under the applicable disciplinary procedure, and that
he simply observed him taking an excessive break on October 7,
but could not recall talking to him about it (Tr. 224).
Mr. King confirmed that he was at work on September 25,
1987, and that he was seated at his desk in Mr. Vargas' office,
approximately 10 feet away from where Mr. Bayliss and Mr. Brock
were discussing Mr. Brock'~ breaks. Mr. King explained what
transpired as follows (Tr. 225-227):
A. John had called Jerry in to the office. He had
told me at the lunch period he was aggravated because
Jerry was continually in too early to wash up, and
every time he asked him, he always had a reason. And
he had just asked him what he was doing in at fifteen
till or approximately that. And Jerry said he had dust
in his eyes. He was just washing his face. And he was
going to warn Brock about doing that. So, they were in
the office, and John's first statement was, "I want you
to tell me any time you go to break, to wash up or go
to break." And Jerry says, "You want me to tell you?"
And John said, "I want you to tell your supervisor any
time you leave."

2198

Q. There's no question in your mind that Mr. Bayliss
indicated that Mr. Brock should call his supervisor?
A. No, there's no question because I was listening to
it, and it caught my ear when John said, "call me."
And I thought, no, he· .don't want him to do that. And
John changed it to "call your supervisor," which is
first of all, myself, Frank Vargas, and when we're not
present due to the normal operations of the plant, it's
the shift foreman that is on charge.

Q. So that on the morning of September 26th of 1987 at
about two o'clock in the morning, there would have been
what? A shift supervisor or someone there for
Mr. Brock--someone at the plant-A.

That's correct.

Q. --for Mr. Brock to call and tell him that he was
going on break.
A. Mr. Brock had asked to come in that day at
midnight. We had offered overtime to everybody on that
Saturday. Jerry had come to me and said, "I would like
to come in at midnight instead." And I was granting
his wish. And that is the reason he was working at
that hour, some--only twelve hours after this conversation with John.
On cross-examination, Mr. King confirmed that Mr. Brock
spoke with him about independent contractors working on the roof,
and that at the end of the day, Mr. Brock stated to him that "I'm
not getting any results.
I want to call MSHA" (Tr. 229).
Mr. King also confirmed that a company nurse is available for
routine blood pressure checks, and that many employees wash up
three or four minutes early. He also confirmed that he did not
issue a formal warning to Mr. Harris because he was on probation
and stated that "If he don't make it, he doesn't stay" (Tr. 229).
Mr. King confirmed that in May, 1987, he began to try and
"crack down" on excessive use of break time and lunch times, and
that during the week of August 10, 1987, he observed Mr. Brock
using excessive time. He confirmed that he was in the break room
observing employees, and that he also watched them coming back to
t:qe maintenance shop from his office. He confirmed that he kept
no notes on the exact times Mr. Brock was "going in and coming
back out, i• and stated that "He was the first one in and the last
one out" (Tr. 231).
In response to further questions, Mr. King stated that when
Mr. Brock asked to use the phone to call MSHA, it was close to
the end of the work shift and that he asked Mr. Brock to wait

2199

until the shift was over, and that he responded "Okay" (Tr. 241).
Mr. King confirmed that he had no personal knowledge that
Mr. Brock in fact called MSHA (Tr. 231). He also confirmed that
Mr. Brock had never previously asked his permission to call MSHA,
and that he asked him to wait because it was a busy time in his
office, and since the shift was almost over, he did not believe
that it made any difference for Mr. Brock to wait (Tr. 233).
If
Mr. Brock had asked him to use the phone at the start of the
shift, he would have allowed him to do so (Tr. 233).
Mr. King explained that he spoke to the contractor employees
in response to Mr. Brock's concerns, and informed them about the
need to wear hard hats and safety glasses. Mr. King assumed that
Mr. Bayliss was responsible for the contractor employees, and
·that he discussed the matter with him at a later time. Mr. King
could not recall whether Mr. Brock had previously discussed
contractor employees with him (Tr. 234-239).
Mr. King confirmed that he had no knowledge of the disciplinary meeting between Mr. Brock and Mr. Hicks, and was not present
at this meeting because he was not asked to attend and was not
involved in the incident concerning Mr. Brock's calls to
Mr. Bayliss at his home. Mr. King did not know whether Mr. Hicks
was aware of his prior verbal and written warnings to Mr. Brock
at the time of the meeting, and he confirmed that Mr. Hicks and
Mr. Bayliss never discussed Mr. Brock's calling MSHA inspectors
with him at any time (Tr. 238-241).
John Bayliss, maintenance manager, stated that he has worked
for the respondent for 3 years, and that Mr. King and· Mr. Vargas
are two of seven maintenance managers who work under his supervision. He stated that employee breaks and lunch hours have been
an "ol)going problem," and that "it manifests itself in Mr. Hicks
noticing the maintenance department that the laborers are taking
too long breaks, and he instructs me to tighten up." Mr. Bayliss
confirmed that he "passed the word" to Mr. King in 1987 to
"tighten up on the break times and the lunch times." He also
confirmed that he was aware that Mr. Brock was the miner's representative, and he explained the functions of the safety committee, and explained that safety complaints concerning mechanical
and electrical matters are assigned to each of those departments
for corrective action. He stated that the respondent has never
prevented any employee from making complaints to MSHA, and has
never taken any disciplinary action against any employee for
doing so (Tr. 242-245).
Mr. Bayliss confirmed that he received a call from
Mr. Robert McCormick on August 10, 1987, concerning a roofing
contractor who was doing some work at the mine. Mr. McCormick
informed him that he had received a complaint that contractor
employees were not wearing safety equipment, and that he went to
the job site with union repairman and welder Durst as a witness

2200

to verify that he was pursuing the complaint. Mr. Bayliss stated
that he spoke with the contractor employees and they advised him
that someone else had been there earlier, and that they explained
to Mr. King that they did not wear safety shoes on the roof
because they would damage the roofing membrane material, and that
the wearing of hard hats o~ the roof presented a problem.
Mr. Bayliss stated that he informed the contractor employees to
wear hard hats when they came down from the roof, and they
accepted this instruction. Mr. Bayliss stated that,he met with
Mr. Brock later that day in the maintenance shop and informed him
that he had visited the roof and did not believe that the
employees working on the roof needed to wear hard hats, but that
Mr. Brock disagreed and stated that "they have to wear hats all
the time the same as we do" (Tr. 248). Mr. Bayliss later saw
Mr. Brock without a hard hat in the maintenance shop, and when he
asked him about it, Mr. Brock responded "If they don't have to
wear a hat, I don't have to wear a hat." After Mr. Bayliss
pointed out to Mr. arock that a crane was above them and it was
essential that he wear a hard hat, Mr. Brock "started wearing his
hat" (Tr . 2 4 9 ) •
Mr. Bayliss con.firmed that he attended a meeting in
Mr. Hick's office on August 13, 1987, and that two MSHA inspectors were present.
Inspector Lavell informed him that
Mr. Thompson had called MSHA about a roofing contractor, and
Mr. Bayliss informed the inspector that the contractor was not
working that day.
The inspector then told Mr. Bayliss that he
wanted to discuss the matter, and Mr. Brock was called to the
meeting. Mr. Bayliss stated that at this time, the MSHA inspectors said nothing about Mr. Brock calling MSHA, and only
Mr. Thompson was identified as the person who made the call.
Mr. Bayliss stated that since the contractor was not working that
day, everyone present went to lunch together, including the
inspectors, Mr. Brock, Mr. Hicks, and himself, and that they
discussed "MSHA in general, and the new political situation and
administration in Washington" (Tr. 251). Mr. Bayliss stated that
some 6 months after this meeting, MSHA began issuing citations to
contractors working at the mine (Tr. 249-252).
Mr. Bayliss denied that he ever made the statement that
"That god damn Brock called MSHA on us." He stated that he
considers such language to be blasphemous, and while he sometimes
used "flowery language," Mr. Bayliss stated that "that is not a
word I ever use." Since the inspector informed him that
Mr. Thompson had made the call to MSHA, Mr. Bayliss stated that
he had no intention of saying anything about Mr. Brock making the
call, and that he would have been surprised if Mr. Brock had made
the call, but not surprised that Mr. Thompson made it because he
felt that Mr. Thompson didn't know what was going on, and "so he
called them" (Tr. 254-255).

2201

Mr. Bayliss stated that he had nothing to do with the disciplinary letters issued by Mr. King to Mr. Brock. He confirmed
that he observed Mr. Brock washing up too early before the lunch
break on September 25, 1987, and remarked that "it was too early
to get washed up." Mr. Brock informed him that he was getting
dust out of his eyes and intended to go back to work, and
Mr. Bayliss remarked "Well, I hope you are because you're always
looking for specific instances of taking breaks or lunches, and
this is one that I'm going to tell you about." Mr. Brock then
stated that he was going back to work, and Mr. Bayliss said
nothing to him at that time about Mr. Brock's need to tell him
before taking any breaks (Tr. 256).
Mr. Bayliss stated that at approximately 2:00 p.m. on the
afternoon of September 25, 1987, he met with Mr. Brock in the
maintenance office, and that Mr. King was in the office.
Mr. Bayliss stated that the following conversation took place
with Mr. Brock (Tr. 257-258):
A.
I said to him that before--that he's got to be
careful and that before he goes on breaks, he should
tell me before he goes on breaks. And then, I realized
that I was going to fall into a trap here because I'm
never--or, very rarely in the vicinity of where he
might be able to find me. So, I said, "You better
don't call me, call your supervisor that's responsible
for you at that time." And I meant either Jim or Frank
or the shift foreman.

Q. Now, would a shift foreman be the-- Strike that.
The individuals you named, as well as the shift foreman, that would be someone that would be on duty
basically 24 hours a day, so that if he were working an
off shift, he'd have somebody to report to; is that
right?
A. And that's why I restated my position on this.
Because he--

Q.

And what did he say after you told him that?

A.

He wanted it in writing what he's supposed to do.

Q.

All right.

A.

I didn't want to give it to him in writing.

And what did you say?

Q. And why didn't you want to give it to him in
writing?
A. Because we're in a real dynamic situation out
there, and it's terribly difficult to cover every

2202

eventuality for what a guy should do when he's going on
breaks or leaving a job.
Mr. Bayliss stated that on the day following his meeting of
September 25, 1987, with Mr. Brock, Mr. Brock telephoned him at
his home at 2:00 a.m. in the morning and said "This is Jerry.
I'm ready to go on break. Is that okay." Mr. Bayliss confirmed
that the call woke him, but that he was not angry and was a light
sleeper. He stated that he told Mr. Brock "Jerry, this is
harassment. You understand what I mean, And let's talk about it
tomorrow" (Tr. 258). Mr. Bayliss stated further that Mr. Brock
was friendly and was not abusive, and said "Okay," and that he
then took the phone off the hook, and subsequently learned that
Mr. Brock tried to call him again at 6:00 a.m. (Tr. 259).
Mr. Bayliss confirmed that a meeting was held with Mr. Brock
and others on Monday, September 28, 1987, to discuss the telephone calls by Mr. Brock, and he identified exhibit C-3 as a
memorandum concerning that meeting. He stated that Mr. King was
not present at the meeting because Monday was a busy day and that
enough people were present to take care of the matter.
Mr. Bayliss confirmed that he participated in the decision to
give Mr. Brock a one-day suspension with pay, and that there were
no discussions at the meeting concerning Mr. Brock's involvement
with the roofing contractor, his safety activities, or his
activities involving MSHA. Mr. Bayliss also stated that
Mr. Brock's disciplinary history with the respondent was completely reviewed during the meeting, and that the suspension had
nothing to do with any MSHA related activities. Mr. Bayliss also
confirmed that the matter concerning Mr. Brock's reporting in to
anyone before taking a break was discussed at the meeting, and he
explained what transpired as follows at (Tr. 261-262):

Q. Was there a complete review on that date of
Mr. Brock's disciplinary history with the company?
A.

Yes.

Q. Now, did Mr. Brock ask, during the course of this
meeting, whether he should continue reporting in to
anyone regarding when he was going on break?

A.

Yes, he did.

Q. And what was said to him at this meeting regarding
that?

A. We said that he should tell his supervisor when
he's going on break, and he wanted it written down
exactly what we were saying, how he should do it, what
he should do, and we declined that.

2203

We felt like-- Or, I felt that he'd been there
seventeen years. He knew the chain of command. He
knew that his first-line supervisor was the first guy
he should call.
If he wasn't there, the second guy or
myself. or, if nobody was there, the shift foreman.
He knew who was responsible for the plant, and we felt
like, after seventeen years, he should know how to
behave.

Q. Do you know whether the company has a policy of
having the supervisory management people issue written
orders to every employee about how they're supposed to
do their job or when they're supposed to do their job?
A.

We don't have a written order.

On cross-examination, Mr. Bayliss stated that he presumed
that Mr. Hicks summoned Mr. Brock to the August 13, 1987, meeting
with the MSHA inspectors because Mr. Brock was the miner's representative. He confirmed that Mr. Brock never contacted him
directly about any problems with contractors, and it is his
understanding that Mr. Brock contacted Mr. McCormick in this
regard. Mr. Bayliss stated that he told no one about Inspector
Lavell's telling him that Mr. Thompson had called MSHA because he
didn't feel that it was important to do so (Tr. 264).
Mr. Bayliss confirmed that he never directed any other
employee to call his supervisor before taking a break, and he
explained that when Mr. King discussed the letter he had sent to
Mr. Brock concerning his breaks, Mr. King told him that Mr. Brock
was the only employee who did not accept the fact that he was
taking long breaks and this was why Mr. King gave him the letter.
Mr. Bayliss also confirmed that he told Mr. Brock that he was to
contact Mr. King or Mr. Vargas because all other employees
accepted this as the "chain of command," and that Mr. Brock
"chose to say that he didn't know what the chain of command was"
(Tr. 265).
In response to further questions, Mr. Bayliss confirmed that
when he met with Mr. Brock about his calling him in the morning,
he was aware of the fact that Mr. King had previously issued him
verbal warnings concerning his work performance. When asked why
he did not specifically discuss these prior matters with
Mr. Brock, Mr. Bayliss stated that he believed the letters were
in Mr. Brock's file and that there "were general discussion about
his file.
We just ·went over everything in his file" (Tr. 266).
Mr. Bayliss denied that there was any friction between Mr. Brock
and mine management, and stated as follows at (Tr. 270-271):
A.
Some guys, if you give them a letter for a tardy or
you give them, like I did with Wayne Roache, I
counselled him on absenteeism, he just said, "Thanks.

2204

I'm sorry I've done it," and go on. He don't write a
grievance against me for doing that. Brock will never
accept, "Thanks, I'm going to go on." So, whenever we
get a situation involving Brock, and not anybody else,
he will grieve that discipline.

*

*

*

*

*

*

*

A. I think that we--I feel like we try to be really
creative in our punishment. Our punishments at Blue
Circle--I've been there only three years, but we're
extremely creative. We try to give a punishment that
does not hurt the guy at all. We try to be just as
fair and as positive as we can. We're not trying to
run people off. In fact, we never run people off.
I've never seen a guy, in three years, run off here.
And we try to make a good employee out of a question- .
able one. And that's my whole object in discipline.
My discipline is not a situation--And I think that
you can see our disciplines are not vindictive, nasty,
I'm going to hurt you for what I consider to be kind of
silly stuff. We're going to give you a day off to
think about things and try to work with you to make you
into a nice employee who's got a positive outlook on
the company. · That's what we try to do.

J. K. Hicks, operations manager, stated that he is in charge
of the entire plant and has served in that position for 5 years.
He stated that under no circumstances have any employees been
disciplined for making safety complaints to MSHA or cooperating
with MSHA. He confirmed that no action has ever been taken by
the respondent against a miners' representative for performing
his duties in connection with MSHA. He also confirmed that he is
involved in the selection of contractors, and that company policy
requires contractors to comply with MSHA's regulations while on /
mine property. He identified a copy, of the respondent's safety
and work rules, exhibit R-10, and confirmed that he was not aware
of any employee ever being disciplined for reporting safety
hazards, and that in many cases, employees have been thanked for
reporting unsafe incidents (Tr. 275-278).
Mr. Hicks confirmed that he has observed some employees
being tardy in coming to and from lunches and breaks, and that he
discussed it with Mr. Bayliss in 1987, as well as with other
managers and supervisors, and requested that they bring employees
back to their normal time limits. He also confirmed that in
August, 1987, he became aware of a complaint concerning a roofing
contractor, and that he attended a meeting on August 13, 1987,
when this was discussed. He stated that he summoned Mr. Brock to
the meeting after the MSHA people advised that they were there in
response to a complaint about the contractor. Mr. Hicks stated

2205

that he was aware of a problem with contractor personnel wearing
hard hats and had discussed it with Mr. Bayliss, and was informed
that the matter had been resolved. Mr. Hicks stated that
Mr. Thompson's name was mentioned during the meeting, and that he
never heard Mr. Bayliss make any statement that "That god damn
Brock called MSHA on us," b.ad never heard Mr. Bayliss use such
language, and that he would have been surprised if he made any
such statement (Tr. 278-282).
Mr. Hicks stated that the respondent never took any disciplinary action against Mr. Brock because of any involvement
with a complaint about contractors, and that he would strongly
disapprove of any such action (Tr. 283). Mr. Hicks confirmed
that he issued the September 29, 1987, memorandum concerning
Mr. Brock's call to Mr. Bayliss after the meeting which was held
to discuss that matter, and that Mr. Bayliss had discussed the
matter with him earlier in the day before the meeting. Mr. Hicks
confirmed that the disciplinary letter in question was his idea,
and that the meeting with Mr. Brock had nothing to do with
Mr. Brock's involvement in calling MSHA, and that other than
knowing that Mr. Brock accompanied inspectors as the miner's
representative, he had no knowledge that Mr. Brock called MSHA
(Tr. 284) .
Mr. Hicks explained what took place at his meeting with
Mr. Brock as follows (Tr. 285-287):
A. Well, basically, in the meeting we reviewed the
personnel file of Mr. Brock and made him aware that he
had quite a number of disciplinary incidents in his
file, and he had recently been disciplined for some-some events-- incidents which we regarded as pretty
serious. Such things as he was getting into an area
where we may not have any choice but to take further,
very negative discipline to him. And we did not want
to do that.

*

*

*

*

*

*

*

A.
I told him that his file was disturbingly getting
more disciplinary letters and disciplinary actions
against him in it and that he was getting to the point
in his career where he needed to make a decision, that
the decisions of his own which led to his getting those
disciplines were his decisions. There weren't his
supervisor's or mine or anyone else's. They were his
decisions. And if he continued to make decisions to do
things which would lead to further discipline and he
knew the rules, he had the book, and we had had enough
other with him-- "We" being his supervisors and other
personnel in the plant. --that he was coming to the
point in his career when he needed to decide if he

2206

wanted to continue to be a member of our organization
or not. And that we could take further discipline
against him at that time, such as, days off or further
discipline, and we had elected not to do that, that we
had thought that he needed to consider very carefully
what his future would-be with the company and we were
going to give him a day to do that with pay. At the
end of that day, he was to come back and his actions
would tell us what kind of decision he had come up
with. We proceeded with that situation, and to my
knowledge, Jerry has responded very positively.
Mr. Hicks stated that the disciplinary action he took
against Mr. Brock was in compliance with the provisions of the
applicable labor-management agreement, exhibit R-11, and he
confirmed that he had not previously given a similar disciplinary
suspension to any other employee, and explained as follows (Tr.
288) :
A. Not precisely. We have tried to tailor disciplines
to meet the matter at hand. We have given other
disciplines, we believe, of a similar, positive
disciplinary nature to other employees, again which we
tailor to their particular situation.
Q.
Do you feel that this discipline in any way singled
Mr. Brock out?

A.

No, I do not.

Q.

Why do you say that, sir?

A.
I believe we-- that Mr. _Brock, in regard to his
previous disciplinaries over a period of a number of
years, was coming to the point where he was walking a
tightrope as far as his future with the company, and I
believed that the man had a lot of good in him and that
it was up to us to try to figure out a way how to get
that out of him.
On cross-examination, Mr. Hicks confirmed that all of the
documents concerning prior disciplinary actions against Mr. Brock
were reviewed by him prior to the September 18, 1987, meeting
with Mr. Brock, and were considered at that meeting. He confirmed seeing a statement in Mr. Brock's file concerning a
commendation to him from Mr. Bayliss for excellent attendance,
and stated that "we try to give credit when its due" (Tr.
289-292) .
Mr. Hicks confirmed meeting with MSHA Inspector Jim E.
Jones, during his investigation of Mr. Brock's discrimination

2207

complaint, but stated that he did not know it was a discrimination complaint, and did not recall Mr. Jones mentioning
Mr. Brock's name. He also did not recall telling Mr. Jones that
management assumed that Mr. Brock had called MSHA because its
inspectors were raising the same issues that Mr. Brock had raised
(Tr. 293) .
In response to further questions, Mr. Hicks identified
copies of prior disciplinary actions taken against Mr. Brock on
April 13, 1986, May, 1986, and December 31, 1984. With regard to
the April action, he stated that Mr. Brock could have been suspended for 4 days without pay, but was only suspended for 3 days.
He confirmed that these actions, as well as the others found in
exhibits R-1 through R-7, were in his file and considered at the
time he took his disciplinary action against Mr. Brock (Tr.
293-295).
Mr. Hicks stated that he had no reason to believe that
Mr. Brock had any involvement in contacting MSHA about any complaints, and that -Mr. King and Mr. Vargas never advised him that
Mr. Brock may have called in the inspectors. He confirmed that
MSHA inspectors have been called in before and that no action has
been taken against anyone for doing this, and he recognized the
right of employees to call MSHA or their union representative as
required (Tr. 298).
Robert Kenneth McCormick, industrial relations manager,
stated that safety related matters fall within his job duties.
He confirmed that in December, 1986, MSHA Inspector Jim Smeerz
came to the mine in response to a complaint concerning three mine
areas, and that he had a list of employee names who apparently
had some knowledge of the complaint. Mr. McCormick stated that
all of the employees in question .and their miners' representative
Nick Adams were allowed to communicate with the inspector, and no
action was ever taken by the respondent against any of these
employees for participating in the investigation of the complaint. Mr. McCormick also mentioned another MSHA complaint
earlier this year, concerning an aluminum additive, and that
Mr. Harris took samples of the material and no action was taken
against any employee who participated in the inspection (Tr.
301-302).
Mr. McCormick confirmed that he was aware that Mr. King had
disciplined Mr. Brock because the documents came to him to be
placed in Mr. Brock's personnel file.
He confirmed that he was
at the meeting conducted by Mr. Hicks concerning Mr. Brock's
calls to Mr. Bayliss, and that everything in Mr. Brock's file was
reviewed at that meeting (Tr. 302). He confirmed that mine
supervisory personnel do not report to him, and that he does not
spend time watching employees to see whether they are taking long
breaks. He also stated that each individual supervisor handles
any "problem" employees working for them and that each supervisor

2208

is responsible for disciplining their employees as needed (Tr.
304) .
On cross-examination, Mr. McCormick stated that in August,
1987, Mr. Brock indicated that he had received complaints from
employees concerning contractors, and that Mr. Brock told him
that he was going to call MSHA. Mr. McCormick stated that subse. quent to this time he believed that Mr. Brock had called MSHA,
and stated that "He told me he was going to so I believed him"
(Tr. 304). When asked whether he shared this with other management officials, Mr. McCormick stated "I don't know whether I did
or not.
It's not anything out of the ordinary" that someone
would call MSHA. He denied that he told Mr. King at any time
before he (King) disciplined Mr. Brock that he thought Mr. Brock
had called MSHA (Tr. 305).
Mr. Maurice Lamar Harris was recalled by the court, and
confirmed that Mr. King had spoken to him about taking long
breaks in September; 1987. He stated that Mr. King told him that
"I'm going to get you away from Brock because it will get you in
trouble," and Mr. Harris assumed that Mr. King made this statement because "I guess, because they were watching Brock" (Tr.
307). Mr. Harris could not recall that Mr. King spoke to him on
September 16, and October 7, about taking excessive breaks, and
he stated that he only had two meetings with Mr. King "about my
progress as a repairman." He stated that the only time Mr. King
said anything to him about long breaks was when he and Mr. Brock
were taking their breaks together (Tr. 308). Mr. Harris also
stated that when he and Mr. Brock completed their work on the
gate, it was working properly, that they both tested it and found
it operable, but that he did not hear all of the conversation
between Mr. Brock and Mr. King when Mr. King was there (Tr. 309).
MSHA's Arguments
MSHA asserts that after receiving a complaint concerning
- independent contractors at the plant who were not wearing safety
equipment, Mr. Brock presented these concerns to mine management,
including the maintenance supervisor and the industrial relations
manager, and that through Mr. Brock's efforts, the matter was
subsequently investigated by MSHA. MSHA concludes that the
reporting of what Mr. Brock perceived to be safety violations
concerning the independent contractors is clearly protected
activity within the meaning of the Act.
MSHA asserts that subsequent to Mr. Brock's safety complaint
to management on August 11, 1987, and the MSHA investigation of
August 13, 1987, the following adverse actions were taken against
Mr. Brock by the respondent:
1.

August 17, 1987 - Brock received a verbal warning
for taking too long at breaks and lunch.

2209

2.

August 28, 1987 - The verbal warning of August 17,
1987, was memoralized in writing.

3.

September 18, 1987 - Brock was issued a written
disciplinary warning for unsatisfactory job performance. The disciplinary specifically
referenced a job Brock was assigned to on
September 16, 1987. The disciplinary stated that
Brock had spent entirely too much time away from
the job on breaks and taking care of personal
business. Also, it was stated that the assigned
job had not been done properly.

4.

September 25, 1987 - Brock was ordered to report
to certain supervisors prior to going on breaks.

5.

September 25, 1987 - A disciplinary meeting was
held to discuss Brock's having called a supervisor
at 2:00 a.m., to inform the supervisor that he was
going on break. Brock was given a one day suspension and was to consider if he wanted to continue
working for respondent.

In response to the respondent's assertions that the actions
taken against Mr. Brock were for non-protected activities (abuse
of break time and poor job performance), and the respondent's
reliance on evidence of prior disciplinary actions taken against
Mr. Brock, MSHA points out that these actions were tdken years
prior to the subject adverse actions, and that the most recent
disciplinary action against Mr. Brock prior to August 17, 1987,
was taken on May 22, 1986. MSHA further points out that
Mr. Brock was commended by maintenance manager John Bayliss on
January 9, 1987, for his excellent attendance record in 1986, and
for his contribution to the department. MSHA concludes that such
a commendation is inconsistent with the respondent's contention
that the actions taken against Mr. Brock were for non-protected
activities.
MSHA argues that the evidence in this case establishes that
the respondent suspected that Mr. Brock had reported safety
violations to MSHA and that its belief that he had done so was
the motivating factor in taking the adverse actions against him.
MSHA asserts that the abuse of break and lunch periods was an age
old problem at the plant, and although employees testified that
they had exceeded established time limits for breaks and lunch on
various occasions, Mr. Brock was the only employee disciplined
for abuse of break time. MSHA concludes that the respondent
cannot claim ignorance of violations of break and lunch times by
other employees because the evidence establishes that respondent's management observed such violations on occasion.

2210

MSHA asserts that consideration should be given to the
statements attributed to Mr. Bayliss, "one of the key players" in
the disciplinary actions. MSHA points out that Mr. st. John
testified that Mr. Bayliss commented "that god damn Brock called
MSHA on us," and that Mr. st. John also testified that industrial
relations manager Hertzog t.old Mr. Brock that "this was a family
matter and he didn't have any business calling MSHA, and that
would Jerry like for him to call the IRS on him" (Tr. 132). MSHA
points out that Mr. st. John felt that this statement was a
threat and told Mr. Brock "you'd better look out."
MSHA concludes that where adverse action closely follows
protected activity, an illicit or discriminatory motive is established, and that in this case, the first adverse action against
Mr. Brock was taken on August 17, 1987, only 6 days after he
engaged in protected activity. Together with the failure of
management to treat other employees' abuse of break time in the
same manner as Mr. Brock, and the statements attributed to
management officials, MSHA further concludes that Mr. Brock's
engagement in protected activity was the motivating factor for
the adverse actions taken against him.
Respondent's Arguments
Respondent argues that there is no nexus between the respondent's actions in this case and Mr. Brock's protected activity.
Respondent asserts that the verbal warning to Mr. Brock on August
17, 1987, was given by maintenance supervisor Jim King, who made
the sole determination with respect to this action. Respondent
maintains that Mr. King was completely unaware at this time that
Mr. Brock had called MSHA, and that his action had nothing to do
with the complaint about roofing contractors. Respondent asserts
that Mr. Brock's assumption that Mr. King knew that he had called
MSHA is based on Mr. Brock's mentioning to Mr. King the use of a
telephone for that purpose. Respondent points out that Mr. Brock
testified that he did not really know for a fact that Mr. King,
or any other management official, were aware of his call, and
that Mr. King's credible denial is more reliable than Mr. Brock's
supposition.
Respondent confirms that Mr. King was also responsible for
giving Mr. Brock the written warning on September 16, 1987, for
unsatisfactory work performance. However, respondent maintains
again that Mr. King was unaware that Mr. Brock had called MSHA at
the time of this action, and that Mr. King's action had nothing
to do with the complaint about roofing contractors or any other
of Mr. Brock's safety activities. Respondent asserts that
Mr. King disciplined Mr. Brock because of his job performance and
taking too much time away from the job.
Respondent confirms that Mr. Bayliss was responsible for
having Mr. Brock report to his supervisor before washing up for

2211

breaks or lunch beginning on September 25, 1987. Respondent
asserts that the action taken by Mr. King was in response to
Mr. Brock's abuse of break and lunch times, and that contrary to
any suggestion that Mr. Bayliss knew that Mr. Brock had called
MSHA, Mr. Bayliss in fact believed that it was Mr. Thompson who
was responsible for the MSHA inspectors coming to the mine to
look into the contractors' violations. With regard to the statement attributed to Mr. Bayliss by Mr. St. John, respondent
asserts that Mr. Bayliss and Mr. Hicks testified that such a
comment is wholly inconsistent with Mr. Bayliss' character.
Respondent further confirms that Mr. Hicks was responsible
for the disciplinary meeting and 1-day suspension of Mr. Brock on
September 28, 1987, for calling Mr. Bayliss at his home at 2:00
and 6:00 a.m., the previous Saturday morning. However, respondent maintains that Mr. Hicks was unaware of Mr. Brock's prior
call to MSHA.
Respondent concludes that none of the management personnel
who disciplined Mr. Brock between August 17, 1987 and
September 29, 1987, knew that Mr. Brock had called MSHA, and that
those individuals who concerned themselves with the matter
thought that Mr. Thompson had called. Respondent maintains that
confirmation of this fact lies in Mr. Brock's own testimony that
he had no knowledge as to whether or not mine management in fact
knew that he had called MSHA {Tr. 65). Respondent concludes that
under the circumstances, MSHA has failed to show a nexus between
the disciplinary actions and any protected activity by Mr. Brock.
As an affirmative defense, the respondent maintains that the
evidence establishes that the disciplinary actions taken against
Mr. Brock were motivated by unprotected activity and would have
been taken in any event because of this unprotected activity.
In
support of its argument, the respondent asserts that each warning
Mr. Brock received was warranted by, and a direct result of, his
unprotected activity. Respondent points out that over the course
of the week before the August 17, 1987, verbal warning, Mr. King
observed Mr. Brock taking extended breaks and lunches at every
opportunity, and that the warning was given after Mr. Brock had
received group counselling and Mr. King had tried to convince him
through individual counseling to willingly conform to company
policy. Respondent further points out that Mr. Brock filed a
grievance concerning this action and that it was summarily denied
by an arbitrator on May 1, 1989.
With regard to the September 18, 1987, disciplinary warning
for unsatisfactory job performance, the respondent asserts that
the record clearly demonstrates that this warning was justified,
and that this conclusion is reinforced by an arbitrator's
decision of May 2, 1989, denying Mr. Brock's grievance with
respect to this unsatisfactory job performance warning.

2212

With regard to the instruction by Mr. Bayliss to Mr. Brock
on September 25, 1987, to call his supervisor before washing up,
respondent argues that Mr. Bayliss' response to Mr. Brock's
"rebellious" attitude with regard to break and lunch time
restrictions, was a constructive effort to foster Mr. Brock's
cooperation, and that the warning was given after Mr. Bayliss
observed Mr. Brock washing up early.
With regard to the September 29, 1987, disciplinary meeting
and 1-day off with pay given to Mr. Brock by Mr. Hicks, respondent asserts that it was provoked specifically by Mr. Brock's
calls to Mr. Bayliss in the middle of the night, and was the
culmination of many disciplinary problems that Mr. Brock had
recently created, as well as those he had been continually having
since coming to work for the respondent. Respondent concludes
that all of the disciplinary actions in question were in response
to unprotected activity brought on by Mr. Brock himself, and that
his combativeness with management and his disregard for his work
responsibilities are unprotected activities, regardless of his
involvement with safety or his safety concerns. Respondent
further concludes that the Act simply does not protect an unsatisfactory worker, and that the instant case has nothing to do
with safety in the workplace.
Findings and Conclusions
In order to establish a prima facie case of discrimination
under section 105(c) of the Mine Act, a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Company,
2 FMSHRC 2768 (1980), rev'd on other grounds sub nom.
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal
Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v.
Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511
(November 1981), rev'd on other grounds sub nom.
Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator
may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no way
motivated by protected activity.
If an operator cannot rebut the
prima facie case in this manner it may nevertheless affirmatively
defend by proving that it was also motivated by the miner's
unprotected activities alone. The operator bears the burden of
proof with regard to the affirmative defense. Haro v. Magma
Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden of
persuasion does not shift from the complainant. Robinette,
supra. See also Baich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983);
and Donovan v. Stafford Construction Company, No. 83-1566 D.C.
Cir. (April 20, 1984) (specifically-approving the Commission's

2213

Pasula-Robinette test) . See also NLRB v. Transportation
Management Corporation,
U.S.
, 76 L.ed.2d 667 (1983),
where the Supreme Court approved the NLRB's virtually identical
analysis for discrimination cases arising under the National
Labor Relations Act.
Direct evidence of actual discriminatory motive is rare.
Short of such evidence, illegal motive may be established if the
facts support a reasonable inference of discriminatory intent.
Secretary on behalf of Chacon v. Phelps Dodge corp., 3 FMSHRC
2508, 2510-11 (November 1981), rev'd on other grounds sub nom.
Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983);
Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984).
As the Eight Circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in
NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir.
1965) :
It would indeed be the unusual case in which the
link between the discharge and the [protected] activity
could be supplied exclusively by direct evidence.
Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial
evidence. Furthermore, in analyzing the evidence,
circumstantial or direct, the [NLRB] is free to draw
any reasonable inferences.
Circumstantial indicia of discriminatory intent by a mine
operator against a complaining miner include the following:
knowledge by the operator of the miner's protected activities;
hostility towards the miner because of his protected activity;
coincidence in time between the protected activity and the
adverse action complained of; and disparate treatment of the
complaining miner by the operator.
In Bradley v. Belva Coal Company, 4 FMSHRC 982, 993 (June
1982), the Commission stated as follows:
As we emphasized in Fasula, and recently
re-emphasized in Chacon, the operator must prove that
it would have disciplined the miner anyway for the
unprotected activity alone. Ordinarily, an operator
can attempt to demonstrate this by showing, for
example, past discipline consistent with that meted to
the alleged discriminatee, the miner's unsatisfactory
past work record, prior warnings to the miner, or
personnel rules or practices forbidding the conduct in
question. our function is not to pass on the wisdom or
fairness of such asserted business justifications, but
rather only to determine whether they are credible and,
if so, whether they would have motivated the particular
operator as claimed.
,,
2214

Protected Activity
It is clear that Mr. Brock enjoys a statutory right to voice
his concern about safety matters or to make safety complaints to
mine management or to MSHA".or one of its inspectors without fear
of retribution or harassment by management. Management is prohibited from interfering with such activities and may not harass,
intimidate, or otherwise impede a miner's participation in these
kinds of activities.
Secretary of Labor ex rel. Fasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on
other grounds sub nom. Consolidation Coal Co. v. Marshall,
663 F.2d 1211 (3d Cir. 1981), and Secretary of Labor ex rel.
Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981).
Baker v. Interior Board of Mine Operations Appeals, 595 F.2d 746
(D.C. Cir. 1978); Chacon; supra.
Unprotected Activity
The respondent asserts that the disciplinary actions taken
against Mr. Brock for poor work performance and for abusing lunch
and work breaks were justified. Respondent also asserts that the
disciplinary meeting resulting in Mr. Brock's being given a day
off with p_gy was prompted by Mr. Brock's calling his supervisor
in the middle of the night to obtain permission to cleanup and
was indicative of his combative attitude and disregard for his
work responsibilities.
If the acts and conduct attributed to
Mr. Brock which resulted in the disciplinary actions in questions
are true, I conclude and find that they may not be considered
protected activities under the Act.
The Alleged Disparate Treatment of Mr. Brock
While it is true that other employees may not have been
formally disciplined pursuant to the applicable labor-management
rules and procedures, the fact is that other employees have been
counseled and talked to by supervisors with respect to their
abuses of work and lunch breaks. Given the graduated disciplinary punishment scheme for offenses, I can only conclude that all
employees are equally at risk for repeat offenses which may lead
to suspension or discharge.
Mr. Thompson confirmed that employees abuse their break
times, and Mr. Roache, who also worked for Mr. King, conf.irmed
that he had been counseled for missing too much work.
He
explained that the respondent's absentee policy and program
includes a graduated disciplinary plan which begins with
counseling, and then moves to a letter, time off from work, and
termination (Tr. 120-121). Mr. Sutherland confirmed that
Mr. King has counseled employees at various meetings about taking
extended breaks (Tr. 147). Mr. Clark testified that he has
observed Mr. Brock "chit-chatting" with people at the workplace,

2215

and has observed him coming back "slow" from his lunch and work
breaks because he would stop and talk with people (Tr. 190).
Mr. King testified that he spoke with employee Maurice
Harris about taking excessively long breaks on September 16,
1987, but did not formally_"warn" him under the disciplinary
rules. He also observed him taking another long break on
October 7, 1987, but said nothing to him. Mr. King explained
that Mr. Harris was not issued a formal warning because he was a
probationary employee and that if he did not successfully complete his probation, he would not be retained (Tr. 229). The
record shows that Mr. Harris did not satisfactorily complete his
probationary period because of his failure to perform adequately,
and was not accepted in the position of repairman welder
(Arbitrator's decision of May 2, 1989, pg. 4, Appendix B to
respondent's brief).
Mr. King alsq testified that during his prior tenure as an
hourly employee and union official and miners' representative, he
was counseled by the respondent about the use of lunch and work
breaks. He confirmed that during this time he was unaware of any
employee being disciplined for calling MSHA, and he stated that
he had called MSHA and was never disciplined for doing so (Tr.
199) .
Mr. King confirmed that after he became a supervisor, he
continued his "one-on-one" counselling with his employees concerning lunch and work breaks, including Mr. Brock and two other
employees, all of whom had "problems" with their breaks.
Mr. King confirmed that Mr. Hicks informed him that there was a
need to "tighten up" the lunch and work breaks by his employees
and that this would be one of his priorities. He confirmed that
sometime in May, 1987, he began counselling his employees in
group sessions, and found that Mr. Brock, and employees Bill
Hobbs and Dean McKellips were still having problems with their
lunch and work breaks. He spoke with Mr. Hobbs and Mr. McKellips
during the same d~y in August 1987, when he spoke with Mr. Brock
concerning their long breaks, and that Mr. Hobbs and
Mr. McKellips acknowledged they were taking too long on their
breaks and agreed to improve. Under these circumstances,
Mr. King believed that his talks with these two employees was all
that was necessary, and that they responded and showed improvement in their work (Tr. 205).
Mr. King stated that when he met with Mr. Brock and his
union representative on August 17, 1987, to discuss his extended
lunch and work breaks, Mr. Brock took the position that he was
not abusing his breaks and asked him for more specific information. Mr. King informed Mr. Brock that he had personally
observed his comings and goings during the prior week, and that
on at least 15 sepa+ate occasions he observed that he was late
for every break. 'Mr. King confirmed that on the basis of his

2216

personal observations as stated to Mr. Brock he concluded that
Mr. Brock was abusing his break times and he decided to give him
a verbal warning in order to document his conclusion and action
(Tr. 206).
Industrial relations manager Robert McCormick confirmed that
the disciplining of individual employees is left to the discretion of their supervisors. Operations manager Hicks testified
that individual disciplinary actions are tailored to the particular circumstances concerning each employee. He did not believe
that Mr. Brock was singled out for disciplinary action. He
confirmed that Mr. Brock's previous disciplinary record over a
number of years of his employment with the respondent was considered and discussed with him at the time he disciplined him on
September 29, 1987, and that Mr. Brock had reached the point
where "he was walking a tightrope as far as his future with the
company" was concerned (Tr. 288).
Mr. Brock denied receiving any counseling from management
prior to the disciplinary actions in question (Tr. 71-72).
However, the record reflects the following prior disciplinary
actions taken by the respondent against Mr. Brock for violations
of company rules and policies:
May 22, 1986.
Disciplinary suspension for 3 days for
lost time accident.
In lieu of the suspension,
Mr. Brock was required to prepare a job safety
analysis.
(Exhibit R-14).
December 31, 1984.
infraction.

Verbal warning for a safety rule

July 27, 1984. Supervisory warning for excessive time
in the use of toilet facilities.
September 21, 1984. Supervisory warning for reading
newspaper in the toilet for thirty minutes
(exhibit R-7).
July 27, 1984. Supervisory counseling for leaving job
without foreman's permission, and for leaving job
early to go home.
(Exhibit R-6).
March 17, 1983. Supervisory counseling for leaving job
early repeatedly.
(Exhibit R-5).
April 23, 1982. Disciplinary warning for tardiness.
The warning noted that Mr. Brock had been
counseled on August 25, 1981, and given a written
warning on September 16, 1981, for tardiness.
(Exhibit R-4).

2217

September 16, 1981. Disciplinary warning and reprimand
for leaving work without foreman's permission.
(Exhibit R-3).
April 3, 1986. Five day suspension without pay for
failing to follow supervisor's safety instructions
and failing to take steps to insure his (Brock's)
safety in connection with an accident in which
Mr. Brock broke his foot.
(Exhibit R-13). ,
September 25, 1979. Disciplinary warning and five day
suspension for sleeping on the job. The warning
noted that Mr. Brock had been previously
disciplined for sleeping on the job.
(Exhibit R-2).
February 1, 1978. Supervisory counseling for excessive
tardiness.
(Exhibit R-1).
I find no credible or probative evidence to establish or
suggest that Mr. King, Mr. Bayliss, and Mr. Hicks conspired to
reach out and isolate or treat Mr. Brock any differently from
other employees because of his safety activities or involvement
with the MSHA visit concerning the complaint about independent
contractors. The record establishes that each of the disciplinary actions in question were taken independent of each other,
and were based on the facts then known to management. Further,
Mr. Brock's record reflects a consistent application of its
disciplinary rules by the respondent in each instance where such
action was warranted. The record establishes that Mr. Brock was
put on notice by the respondent that he would be subject to more
severe disciplinary sanctions for repeat offenses, and absent any
evidence to the contrary, I can only conclude that what set
Mr. Brock apart from other employees was his record of noncompliance with company work rules over a rather extended period
of time. The fact that he serves as a union official and member
of the safety committee does not insulate Mr. Brock from legitimate managerial business-related non-discriminatory personnel
actions. UMWA ex rel Billy Dale Wise v. Consolidation Coal
Company, 4 FMSHRC 1307 (July 1982), aff'd by the Commission at
6 FMSHRC 1447 (June 1984); Ronnie R. Ross, et. al v. Monterey
Coal Company, et al., 3 FMSHRC 1171 (May 1981).
MSHA's conclusions that the commendation letter given to
Mr. Brock by Mr. Bayliss on January 9, 1987, is inconsistent with
the respondent's contentions that the disciplinary actions taken
against Mr. Brock were for non-protected activities is rejected.
The letter in question recognized Mr. Brock's excellent attendance record in 1986. The individual actions in question had
nothing to do with Mr. Brock's attendance per se. They deal with
conduct which took place while Mr. Brock was at work, and concern
separate and distinct violations of work rules and policies.

2218

Mr.Hicks acknowledged the letter and commented that he believed
in "giving credit where credit is due," and he confirmed that he
saw the letter when he considered Mr. Brock's overall employment
record at the time of his disciplinary action of September 29,
1987.
The Disciplinary Actions Taken Against Mr. Brock
As noted earlier, Mr. Brock's grievances concerning the
August 17, 1987, verbal warning for taking long work and lunch
breaks, and the September 18, 1987, disciplinary action for
unsatisfactory job performance, were both denied and the arbitrators who heard those cases found ample cause for the actions
taken against him. Although I am not bound by decisions of
arbitrators, I may nonetheless consider such decisions.
Chadrick Casebolt v. Falcon Coal Company, Inc., 6 FMSHRC 485, 495
(February 1984); David Hollis v. Consolidation Coal Company,
6 FMSHRC 21, 26-27 _(January 1984) ; Secretary on behalf of Fasula
v. Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on
other grounds sub nom. Consolidation Coal Co. v. Marshall,
663 F.2d 1211 (3d Cir. 1981).
With regard to the August 17, 1987, verbal warning for
abusing break times, I take note of the arbitrator's findings
that there was sufficient evidence that Mr. Brock was guilty of
taking excessive breaks and lunch p~riods and gave no indication
to management that he would improve, and that management had good
cause to issue the verbal warning.
I also take particular note
of the arbitrator's comments at page 8 of his decision, that
while it was true that two other employees did not receive verbal
warnings for similar offenses, they both indicated to their
supervisor that they recognized the problem and would correct
their abuse of break times.
I agree with the arbitrator's findings.
I further find and conclude that the preponderance of the
evidence adduced in the instant case establishes that Mr. Brock
abused his break privileges, and given the fact that he had been
previously counseled in this regard, I further conclude and find
that Mr. King's action was clearly justified and warranted.
With regard to the September 18, 1987, written disciplinary
warning for unsatisfactory job performance, I take note of the
arbitrator's findings that Mr. Brock was away from his work
excessively on the day in question, was inattentive in the manner
in which he performed the work, that his work productivity and
performance on that day was below what was expected by management, and that he was shirking his duty and avoiding work.
Although the arbitrator took into account the union's assertions
that Mr. Brock was being punished because of certain union
activities, for allegedly reporting som2 unspecified ''alleged
discrimination" .to a government agency, and that management
accorded him disparate treatment, the arbitrator nonetheless
concluded that these factors did not account for Mr. Brock's

2219

overall lack of productivity and most of his absences from his
assigned work place in question, and that this incident was not
an isolated one and indicated a course of conduct on the part of
Mr. Brock which had been carried on over a period of time about
which he had been warned repeatedly (Arbitrator's decision, pgs.
9-10).
I also take note of the credibility findings by the arbitrator with respect to Mr. King.
The arbitrator concluded that
Mr. King, who was shortly removed from the union ranks before he
became a management supervisor, could not have had the motivations attributed to him in the area of "union discrimination"
(Arbitrator's decision, pg. 10). The arbitrator also found that
Mr. King was a credible witness and was sincere in disciplining
Mr. Brock for his unsatisfactory job performance, and had no axes
to grind since his past history with the union indicated that he
would have a good understanding of Mr. Brock's perspective in the
grievance case (Arbitrator's decision, pg. 8).
Although I am in agreement with the arbitrator's findings,
on the basis of my own independent observations of Mr. King
during the course of the hearing, I conclude and find that he is
a credible witness. With regard to the merits of Mr. King's
conclusions that Mr. Brock's work performance on the day in
question was less than adequate, I find that his testimony and
assessment of Mr. Brock's work performance on the day in question
supports the actions taken by him and was clearly within his
managerial authority and discretion. Mr. King testified that he
assigned the work in question to Mr. Brock and his helper at
7:00 a.m., and he expected the work to be normally completed by
at least 1:00 p.m. Mr. King stated that he made occasional
visits to the work area, and when he visited the area at
11: 50 a.m., Mr. Brock was absent,_ and Mr. King found that the
helper, who was a trainee probationary employee, was working on
the wrong gate. When asked about Mr. Brock's absence, the
trainee informed Mr. King that he did not know where Mr. Brock
was, and speculated that he had gone to use the rest room.
Mr. King later visited the storeroom area at the conclusion of
the 2:00 p.m. break, and found the helper there, and Mr. Brock
walked in later and spoke with the helper before they both
"casually" walked back to their work area. Mr. King later found
Mr. Brock at his locker cleaned up and ready to go home 3 minutes
before the norip.al "wash-up" time.
Mr. King testified that Mr. Brock had wasted the entire day
because he did not apply himself to the job to which he was
assigned. Mr. King indicated that the only time he found
Mr. Brock on the job was at 3:00 p.m., when he visited the area.
He further stated that Mr. Brock informed him that he had left
the job to get nis blood pressure checked, visited with Mr. Hicks
for approximately 30 minutes, and had attended a safety meeting
which took another 30 minutes. The helper, Mr. Harris, confirmed

2220

that Mr. Brock left the work area several times, and that when
Mr. King found them in the store room, he ordered them back to
work because they had overstayed their break time by 10 minutes.
Mr. Harris also confirmed that when he advised Mr. Brock about
Mr. King's assessment of their "shoddy work," Mr. Brock told him
"not to worry about it. 11
After. careful consideration of all of the testimony concerning Mr. Brock's work performance which led to the disciplinary
warning of September 18, 1987, including Mr. Brock's and
Mr. Harris' versions of the incident, I believe Mr. King's version of the events which led him to issue the disciplinary
action, and I conclude and find that it was warranted and
justified.
With regard to Mr. Bayliss' order of September 25, 1987, to
Mr. Brock instructing him to report to his supervisors before
taking a break, I £ind nothing unusual about this action, nor do
I find that it rises to the level of an adverse disciplinary
action.
Given Mr. Brock's record of abuse of break times, I
believe that it was well within Mr. Bayliss' supervisory authority to instruct Mr. Brock to report to a supervisor before taking
breaks. The fact that the respondent has no written policy
authorizing supervisors.to do this, and the fact that other
employees may not have been similarly instructed is irrelevant.
It seems obvious to me from the record, that management has had
an ongoing problem with Mr. Brock in that he does not appear to
accept or recognize the fact that he abused his break times,
while other employees do and agree to improve their work habits.
This attitude by Mr. Brock sets him apart from the other
employees who were counseled about their break times, acknowledged their abuses, and promised to improve. Under these circumstances, I find nothing discri.minatory about the instructions
given to Mr. Brock by Mr. Bayliss.
Mr. Bayliss testified that Mr. Hicks had informed him to
"tighten up" on maintenance department employees taking extended
lunch and work breaks, and that after observing Mr. Brock washing
up early before his lunch break on September 25, 1987, he dis~
cussed it with him, and that Mr. Brock informed him that he was
simply washing dust out of his eyes. Mr. Bayliss stated that he
met with Mr. Brock at 2:00 p.m., that same day and initially
instructed him that he was to tell him (Bayliss) before taking
any breaks, but after realizing that this may be a problem
because Mr. Brock may not be able to find him, he instructed
Mr. Brock to contact his responsible supervisor. Mr. Bayliss
stated that he had in mind the shift foreman, or Mr. King, or
Mr. Vargas, as the supervisors to be contacted.
Mr. King testified that he was present when Mr. Bayliss
instructed Mr. Brock to inform his supervisor before taking a
break. Mr. King acknowledged that Mr. Bayliss first told

2221

Mr. Brock to contact him (Bayliss), but then told him to call his
supervisor. Mr. King confirmed that he and Mr. Vargas were
Mr. Brock's normal shift supervisors, but that the shift in
question when the phone call was made was a midnight Saturday
shift and was not Mr. Brock's normal work shift. The company had
offered overtime for anyone. willing to work that day, and
Mr. Brock had requested to work the midnight shift, and Mr. King
allowed him to do so.
Mr. Brock testified that Mr. Bayliss instructed him to call
him (Bayliss),· or Mr. King or Mr. Vargas before washing up for
breaks. Since Mr. Vargas and Mr. King were not present during
the midnight shift in question, Mr. Brock confirmed that he
telephoned Mr. Bayliss at his home, and that he did so because he
was simply following his instructions. Mr. Brock confirmed that
he called Mr. Bayliss at 2:00 a.m., and that he sounded "sleepy
and agitated." He also acknowledged that he attempted to call
him again at 6:00 a.m., but that the phone was busy. He then
informed shift foreman Jake Barber that Mr. Bayliss' phone was
busy and that he was informing Mr. Barber that he was taking a
break.
Mr. Bayliss testified that the phone call by Mr. Brock woke
him up, but that he was not angry, that Mr. Brock was friendly
and not abuse, and that after the call, he took the phone off the
hook. Mr. Bayliss further testified that he informed .Mr. Brock
that he considered the call as harassment and that he would
discuss the matter with him the next day.
Mr. Hicks testified that he made the decision to initiate
the disciplinary meeting of September 29, 1987, and to give
Mr. Brock a day off with pay to consider his future with the
company. Mr. Hicks confirmed that he took the action because of
the call made to Mr. Bayliss, and because of Mr. Brock's record
of disciplinary incidents and actions. He also confirmed that
the action taken was in compliance with the applicable labormanagement agreement, and that after this action was taken,
Mr. Brock has responded "very positively" (Tr. 287).
Mr. Brock acknowledged that when he called Mr. Bayliss at
2:00 a.m., Mr. Bayliss informed him that he believed he was being
harassed. Notwithstanding this initial conversation, Mr. Brock
again called Mr. Bayliss at 6:00 a.m., and found that the phone
was busy.
(Mr. Bayliss had taken it off the hook). Mr. Brock's
explanation for not contacting Mr. Vargas or Mr. King was that
they were not at work.
I find this to be a rather weak excuse,
since Mr. Bayliss also was not at work. Mr. Brock could have
called Mr. Vargas or Mr .. King at their homes, but instead, he
chose to call Mr. Bayliss. Mr. Brock also chose not to initially
speak to the foreman who was at work on the same shift, and only
spoke with him to inform him that he was taking a break after he
could not reach Mr. Bayliss at 6:00 a.m.
In my view, if

2222

Mr. Brock truly believed that he was required to contact only
Mr. Bayliss before he could take a break, the prudent thing for
him to have done was not to take his 6:00 a.m. break since he
could not reach Mr. Bayliss at that time.
Instead, he informed
the foreman who was on the shift and took his break.
Given the fact that Mr. Bayliss had spoken with Mr. Brock on
two occasions the day before the phone calls, and the fact that
Mr. Brock attempted to again call Mr. Bayliss after he had
awakened him in the middle of the night knowing full well that
Mr. Bayliss considered the initial call to be harassment, I
believe that Mr. Bayliss' conclusion in this regard has a ring of
truth about it.
I further believe that Mr. Brock's calls to
Mr. Bayliss were prompted by Mr. Brock's prior encounters with
Mr .. Bayliss about his abuse of break times, Mr. Bayliss' refusal
to put his instructions in writing, and Mr. Brock's obvious
disagreement that he was abusing his break privileges.
I also
believe that Mr. Brock wished to "make his point" by calling
Mr. Bayliss in the middle of the night. Although Mr. Brock may
have made his point, he also precipitated the disciplinary action
taken against him. Under all of these circumstances, I conclude
and find that this action was justified and warranted.
Respondent's Knowledge of Mr. Brock's Safety Complaint to MSHA
Mr. Brock confirmed that in his capacity as a safety committeeman, he has on past occasions called and spoken with MSHA
inspectors concerning safety complaints and "general questions"
(Tr. 65).
I find no evidence that the respondent has ever
inhibited Mr. Brock from performing his safety duties· in this
regard. As a matter of fact, Mr. Brock confirmed that upon his
return to work after his 1-day suspension with pay for having
called Mr. Bayliss in the middle of the night, the respondent
took no action against him because of his involvement with mine
safety matters (Tr. 56).
Mr. Hicks testified that he recognized the right of an
employee to call MSHA or their union to the mine, and that MSHA
inspectors have been called to the mine in the past and no action
has ever been taken by management against anyone for doing so
(Tr. 298).
He also confirmed that no action has ever been taken
by management against any miners' representative for performing
any MSHA related safety activities (Tr. 275-278). Mr. Bayliss
testified that the respondent has never prevented any employee
from making complaints to MSHA, and that no disciplinary action
has ever been taken against any employee for doing so (Tr.
242-245).
I find Mr. Hicks and Mr. King.to be credible
witnesses, and the record is devoid of any evidence that the
respondent ·has ever prevented or inhibited any employee or safety
committeeman from exercising their safety rights.

2223

Mr. McCormick testified that an MSHA inspector came to the
mine in December, 1986, in response to employee safety complaints, and that the miners' representative was permitted to
meet with the inspector and that no action was taken against any
of the miners for making the complaint. He also mentioned
another recent complaint by an employee which resulted in an MSHA
inspection, and confirmed that no action was taken against the
complaining miner.
The crux of MSHA's case lies in its belief that mine management, and in particular Mr. King, Mr. Hicks, and Mr. Bayliss,
believed that Mr. Brock had called MSHA to come to the mine to
look into a complaint concerning certain alleged violations by
independent contractors and that the disciplinary actions taken
against Mr. Brock were taken to retaliate against him for calling
MSHA to the mine.
Mr. Brock testified that he was under the "impression" that
mine management was not too happy about his calling MSHA about
the independent contractors. When asked the basis for this
impression, he responded "the way they were acting and just
general tones" (Tr. 74). He confirmed that at no time during his
disciplinary meetings with Mr. King, Mr. Bayliss, and Mr. Hicks
did anyone say anything to him about his calling MSHA (Tr.
74-75).
Mr. King testified that at the time he issued the verbal
warning of August 17, 1987, he had no information that Mr. Brock
had called MSHA about the independent contractors. However, he
acknowledged that a week earlier, Mr. Brock spoke to him about
his belief that contractor employees were not following MSHA's
safety equipment guidelines. He also acknowledged that Mr. Brock
told him that he was not getting any results concerning his
contractor complaint and wanted to call MSHA, and that he (King)
asked Mr. Brock to wait until the end of the shift before using
the phone to call.
I take note of the arbitrator's comments in
his decision of May 1, 1989, that the respondent in that proceeding acknowledged that Mr. King told Mr. Brock to go ahead and
call MSHA when he got off work (Arbitrator's decision, pg. 6).
Although Mr. King denied that he had any personai knowledge
that Mr. Brock had called MSHA about the independent contractors,
his own testimony supports a conclusion that he knew that
Mr. Brock was concerned about the contractors, expressed his
dissatisfaction with what he perceived to be management's
inaction, and that he specifically notified Mr. King that he
wanted to call MSHA.
Further, Mr. King told Mr. Brock that he
could use the office phone to call, but to wait until the end of
the shift to place the call because of pressing business in the
office. Under all of these circumstances, I conclude and find
that there is a strong inference that Mr. King either knew or

2224

suspected that Mr. Brock had called MSHA about the complaint
concerning the roofing contractor.
With regard to the statement attributed to Mr. Bayliss by
Mr. st. John, having viewed Mr. st. John during the course of his
testimony, I find him to be. a credible witness.
Notwithstanding
Mr. Bayliss' denials to the contrary, and taking into account his
admission that he sometimes uses "flowery language," I believe
that he made the statement in question. Aside from the statement, I believe that there is other sufficient evidence to
support a reasonable inference that Mr. Bayliss also knew or
suspected that Mr. Brock was responsible for the MSHA inspectors
coming to the mine to follow up on the complaint concerning the
contractors.
Mr. Bayliss acknowledged that he was first informed about
the complaint concerning the contractors on August 10, 1987, and
that he discussed the matter with Mr. Brock later that same day.
The testimony establishes that Mr. Bayliss and Mr. Brock had a
difference of opinion concerning the contractors' wearing of hard
hats, and Mr. Bayliss admonished Mr. Brock for not wearing his
hard hat.
Mr. Bayliss contended that one of the MSHA inspectors who
came to the mine in response to the contractor complaint informed
him that Mr. Thompson had called MSHA, and Mr. Brock was summoned
to the meeting simply because he was safety committeeman.
The
inspector who was named did not testify in this case, and I have
given no weight to Mr. Bayliss' hearsay testimony that the
inspector revealed the name of the informant.
I have serious
doubts that an inspector would divulge the name of any informant
and place himself at risk for disciplinary action for doing so.
Although there is no direct evidence that Mr. Bayliss knew
for a fact that Mr. Brock was responsible for the call which
brought the MSHA inspectors to the mine to look into the complaint concerning contractors, I conclude and find that the
aforementioned circumstances concerning Mr. Bayliss' knowledge
about Mr. Brock's concern for contractor safety violations, and
his discussions with Mr. Brock concerning the matter, support a
reasonable inference that Mr. Bayliss was not totally oblivious
to Mr. Brock's involvement in the complaint and that he more than
likely suspected that the visit by the inspectors was the result
of some action on the part of Mr. Brock.
Mr. Hicks denied any knowledge of Mr. Brock's "involvement
with MSHA," and he also denied any knowledge that Mr. Brock may
have called MSHA about the contractor complaint. However,
Mr. Hicks confirmed that prior to the August 13, 1987, meeting
with the MSHA inspectors, which was held just outside his office,
he was aware of the complaints concerning the roofing contractors, and that Mr. Bayliss told him that he had discussed the

2225

matter with Mr. Brock (Tr. 279, 281). Mr. Hicks had previously
visited the area where the roofing contractors were working to
ascertain whether or not they were wearing the required safety
equipment, and I believe that he did this in response to
Mr. Brock's concerns to Mr. Bayliss. Mr. Hicks confirmed that
during the meeting with th~ inspectors, he explained to them, as
well as to Mr. Brock, the actions taken by management to insure
contractor compliance with the safety regulations. Under all of
these circumstances, I believe that Mr. Hicks also either knew or
suspected that Mr. Brock was responsible for the inspectors'
visit to the mine.
The fact that the respondent may not have known as a fact
that Mr. Brock had called MSHA is immaterial. In Moses v.
Whitley Development Corporation, 4 FMSHRC 1475 (1982), the
Commission held that a complaint may establish a prima facie case
by proving that (1) the operator suspected that he had engaged in
protected activity; and (2) the adverse action was motivated in
any part by such suspicion. See also: Judge Broderick's similar
holding in Larry Brian Anderson v. Consol Pennsylvania Coal
Company, 9 FMSHRC 413 (March 1987).
In view of the foregoing, I conclude and find that there is
sufficient probative circumstantial evidence to support a reasonable inference that the three management official's who disciplined Mr. Brock in this case, either knew or suspected that he
was responsible for the MSHA inspectors coming to the mine to
look into the complaint concerning roofing contractors.
Mr. King's verbal warning to Mr. Brock came a few days after the
visit by the inspectors, and the subsequent actions taken by
Mr. King, Mr. Bayliss, and Mr. Hicks followed within the next
45 days or so. These disciplinary actions, which fairly closely
followed an MSHA inspection which I believe was prompted by
Mr. Brock's complaint, coupled with what I believe was knowledge
or suspicions by these officials that Mr. Brock was responsible
for the inspection visit, raises an inference that the disciplinary actions were prompted in part by Mr. Brock's protected
activity, and sufficiently establishes a prima facie case.
On the facts of this case, even though the complainant may
have established a prima facie case, I conclude and find that the
respondent has successfully rebutted any inference or prima facie
showing of illegal discrimination.
I conclude and find that the
respondent has established by a preponderance of the evidence
that the independent disciplinary actions taken by Mr. King,
Mr. Bayliss, and Mr. Hicks, were clearly warranted and justified
on their merits. Coupled with the lack of any probative evidence
that the respondent was guilty of any disparate treatment of
Mr. Brock, the lack of any probative evidence of animus, harassment, or other acts by the respondent inhibiting Mr. Brock from
exercising his safety rights under the Act, I simply cannot
conclude that Mr. Brock has made out a case. To the contrary, I

2226

conclude and find that the disciplinary actions taken by the
respondent's management personnel were motivated by unprotected
factors alone, namely, Mr. Brock's abuse of work and lunch
breaks, his unsatisfactory job performance, and his calling of a
supervisor on the phone at his home in the middle of the night.
ORDER
In view of .the foregoing findings and conclusions, and on
the basis of the preponderance of all of the credible and probative evidence adduced in this case, I conclude and find that the
complainant has failed to establish that the respondent discriminated against him. Accordingly, the complaint IS DISMISSED, and
the complainant's claims for relief ARE DENIED.

,efr

11/

ef_ ~

GJf'~,;f(; Koutras

Kdministrative Law Judge
Distribution:
E. Jeffery Story, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Mark A. Lies, II, Esq., Seyfarth, Shaw, Fairweather & Geraldson,
55 East Monroe Street, Chicago, IL 60603 (Certified Mail)
/fb

2227

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

N.OV

22041

71989
CONTEST PROCEEDING

SIDNEY COAL COMPANY,
Contestant

v.

Docket No. KENT 89-80-R
Citation No. 3158690; 1/12/89

SECRETARY OF LABOR,
MINE SAFE•ry AND HEALTH
ADMINISTRATION (MSHA),
·
Respondent

No. l Mine
Mine ID 15-07082
CIVIL PENALfY PROCEEDING

SECRE·rARY OF LABOR,
MINE SAFETY AND HEAL'rH
ADMINISTRATION (MSHA),
Petitioner

Docket No. KENT a9-133
A.C. No. 15-07082-03575

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

Before:

G. Elaine Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee
for U.S. Department of Labor;
Lynn M. Rausch, Esq., and Michael Heenan, Esq.,
Smith, Heenan and Althen, Washington, D.C. for
Sidney Coal Company.

Judge Melick

These consolidated cases are before me under
section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq., the "Act," to challenge one
citation issued by the Secretary of Labor against the Sidney
Coal Company (Sidney) and for review of civil penalties
proposed by the Secretary for the violation alleged therein.
The citation at bar, No. 3158690, alleges a "significant
and substantial" violation of the mandatory standard at
30 C.F.R. § 75.400 and charges as follows:
Accumulations of float coal dust deposited on dry,
damp cock dusted surface, is present in the No. 1,
No. 2, and No. 3 conveyor belt entry's [sic] and
connecting crosscuts ranging in depth from paper
thin to 1/8 inch (approximately> from dark gray to
black in color, beginning at the No. 1 head drive

2228

and extends inby to the No. 3 tail roller.
distance of (approximately) 3,350 feet~

The

The cited standard provides as follows:
Coal dust, including-float coal dust deposited on
rock-dusted surfaces, ~oose coal, and other
combustible materials, shall be cleaned up and not
be permitted to accumulate in active workings, or
on electric equipment therein.
According to Inspector Charles Skeens of the Federal
Mine Safety and Health Administration CMSHA) the cited
conditions were found during his inspection on
January 12, 1989. The alleged float coal dust was
purportedly dark gray to black in color and was purportedly
located on the ribs, floor and roof of the Nos. 1, 2, and 3
belt entries. Skeens opined that the substance was indeed
float coal dust because of its coloration and the fact that
the material then being transported on the beltline included
coal as well as rock.
According to Skeens there had been a ~oof fall on the
001 section and the £all material was then being removed on
the.beltline. The area of the mine being cleaned had also
been previously mined with blocks of coal some 50 feet square
remaining. Coal from the tibs was being put through the
crusher thereby, according to Skeens, contributing to tne
coal dust.
According to Skeens no Sidney official r~quested
him to take any coal samples and he therefore did not take
any samples.
Underground Mine Foreman Arthur Maynard accompanied
Skeens during his inspection and was present at a later
closeout conference. According to SKeens, Maynard did not
protest the citation when it was issued. Skeens also
testified that Maynard did not challenge the existence of the
cited float coal dust nor challenge the citation at the tirne
ot the closeout conference. John Barnes an MSHA Electrical
Inspector was also present at the closeout conference on
March 6, 1989. According to Barnes, Maynard acknowledged
that he agreed with the citation.
Maynard testified that in June 1988, Sidney began
rehabilitating the No. 1 Mine by cleaning up abandoned areas
including the clean up of a large roof fall in order to put
in a belt line.
(Sei Exhibit R-11. When the citation was
issued they were tcansporting rock from the roof fall via
scoop to the conveyor. According to Maynard the pile
consi~ted ot 6 to 8 Eeet of flaKy dac~ shale, 4 to 6 feet of
hard blue sanustone, and below that 6 feet of softec dark
shale. Maynard maintains that the cutting of tne rock with a

2229

special bit was causing float rock dust.
there was any float coal dust present.

He denied that

Maynard also claimed\at hearing that when he learned
that Skeens was about to issue a citation for float coal dust
he requested that Skeens take a sample. Skeens purportedly
responded that he needed equipment in his truck outside the
mine to obtain a sample. Skeens never in fact did obtain a
sample. When they arrived at the surface, Mine
Superintendent Lavender purportedly asked Skeens if he had
taken a sample. Maynard testified that the dust in the mine
was rock dust some of which was gray but none was black.
Maynard testified that it was standard company
procedure to request coal sample tests when issued citations
for float coal dust. Maynard did not deny however that
Sydney was cited the previous November 1988 for coal dust and
no request was made for sampling. Maynard further testified
that he was prese~t at the March 1989 closeout conference
and, contrary to the testimony of both MSHA insoectors,
protested the instant citation.
~
Finally, Maynard testified tnat rock dusting was
performed at the No. 1 Mine only to help underground vision
and not for the purpose of protecting from float coal dust.
Danny Casey a rock duster for an independent contractor
agreed that rock dusting was done at the No. 1 mine only for
appearance and not because of coal dust. Casey testified
that he had not seen any accumulations of coal dust on any oi
the rock dusted services.
Whether I find that there was a violation in this case
depends on my assessment of witness credibility. On the one
hand there is the testimony of Inspector Skeens--a coal mine
inspector having seven years experience as an inspector and
having 30 years eKperience in the coal mining industry. His
visual observations are clearly sufficient, standing alone,
to establish the violation. See Exhibit No. R-3, p.49. No
motivation has been shown to discredit the testimony of this
highly qualified and experienced man.
While Respondent attempts to discredit this testimony by
alleging that Skeens failed to take dust samples even upon
the request of its underground mine foreman (an allegation
denied by Skeens}, the Respondent certainly had the
opportunity to take its own samples.
Indeed since Respondent
maintained at trial that it has always vigocously denied the
exiatence of any float coal dust, it would be reasonable
to expect under the circumstances that it would have taken
its own samples to establish its innocence.
In any event I
cannot infer under the circumstances, even assuming Skeens
did not take samples after being requested to do so, that
Skeens' observations were deficient.

2230

In addition I find the testimony of urtderground mine
foreman Arthur Maynard to be less than credible. Maynard
testified for example that it was the uniform practice at
Sidney to request coal dus_t sampling when float coal dust
citations have been issued. The evidence shows however that
only a few months before the instant citation was issued
Maynard himself was presented with a float coal dust citation
and according to the issuing inspector, Maynard never
requested a coal dust sample. While Maynard denies that he
was then present, there is no dispute that, contrary to
Maynard's testimony, none of Sydney's employees asked for
coal dust sampling.
In addition, the existence of a citation for coal dust
only a few months before the one at bar lends doubt to
Maynard's (as well as Casey's) claim that coal dust simply
did not exist in the mine (only rock dust) while the mine was
being rehabilitated. The additional evidence of more recent
citations, including one issued the 3ame day as the citation
at issue, for loose coal and coal dust further discredits
this claim. 'rhe Respondent's claim that coal dust simply did
not exist in its coal mine is in itself also patently
incredible.
Finally, I note the failure of Sidney to have called a
key witness, former mine superintendent Charles Lavender,
regarding the the alleged practice of challenging float coal
citations and his purported request to Skeens for coal
sampling. It was not shown that Lavender was unavailable for
trial and no effort was apparently made to contact Lavender
although his area of residence was known.
I infer from the
failure of Respondent to have produced this essential witness
under the circumstances that the testimony would not have
been favorable to Respondent in this regard. See Karavos
Compania, Etc., v. Atlantic Export Corp. 588 F.2d l (2nd
Cir. 1978); Midland Enterprises Inc., v. Notre Dame Fleeting
& Towing Service, Inc., 538 F.2d 1356 (8th Cir. 1976). Under
all the circumstances I find the Secretary's case to be the
most credible and that float coal dust did indeed exi3t as
charged. The violation i~ accordingly proven as charged.
The testimony of Inspector Skeens that the violation was
"significant and substantial" is not challengedl/. Skeens
noted that within the cited area there were ele~trical power
cables providing a potential ignition source. He also
observed that the automatic fire extinguishing system was not
then functionin~.
A permanent overcast was also then

1/ Respondent denied the existence of any float coal
dust Eut failed to provide evidence to alternatively defend
against the "significant and substantial" and "negligence"
f indin·gs.

2231

defective and allowed intake air to enter the belt entries.
Further, the mine had a history of high levels of methane.
Skeens opined that under these circumstances it would be
reasonably likely fo.c the __ eight miners then working to suffer
fatal injuries presumably from fire, smoke, suffocation or
explosion. Within this framework of evidence I find that the
violation was of high gravity and indeed was "significant and
substantial". Mathies Coal Co., 6 FMSHRC 1 (1984).
I further find that the violation was the result of
operator negligence.
It is undisputed that company officials
walk-ed and inspected the belt lines on a daily basis. It may
reasonably be inferred that the float coal dust should have
been discovered. The failure to have discovered this
condition and either have it rock dusted or removed was
therefore Lhe result of negligence.
Considering these and the other criteria under section
llO(i) of the Act I find that the proposed civil penalty of
$126 is appropriate in this case.
ORDER
I

Citation No. 3158690 is affirmed and the Sidney Coal
Company is directed to pay a civil penalty of $1~6 within 30
days of the date of this decision.
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.Gary M lick
Admini trative
(703)
56-6261

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Judge

Distribution:

G. Elaine Smith, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215 (Certified Mail)
Lynn M. Rausch, Esq., 1110 Vermont Avenue, N.W., Suite 400,
Washington, DC 20005-3593 (Certified.Mail)
nt

2232

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

NOV 71989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 88-96-M
A.C. No. 05-03920-05502

v.

Docket No. WEST 88-142-M
A.C. No. 05-03920-05503

WALSENBURG SAND & GRAVEL
COMPANY, INCORPORATED,
Respondent

Vezzani Pit
DECISION

Appearances:

Before:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
For Petitioner;
Ernest u. Sandoval, Esq., Walsenburg, Colorado,
For Respondent.

Judge Cetti

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to Section 105Cd) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seg., the "Act", for the alleged violation of three regulatory
standards.
The Secretary charges the operator of the Vezzani Pit,
Walsenburg Sand & Gravel Company, Inc. (Walsenburg), with the
violation of 30 C.F.R. § 50.30, § 56.9032, and § 56.14001.
Walsenburg filed a timely appeal from the Secretary's
proposal for penalty. After notice to the parties the matter
came on for hearing before me at Pueblo, Colorado.
Oral and
documentary evidence was introduced and the matter was submitted for decision without the filing of post-hearing briefs.
The general issues before me are whether Walsenburg
Sand & Gravel violated the cited regulatory standards, whether
or not the violations were significant and substantial, and, if
violations are found, what is the appropriate civil penalty to
be assessed in accordance with Section llOCi) of the Act.

2233

The federal mine inspector, Lyle K. Marti, testified he
inspected the Vezzani Pit and found it to be a small intermittent seasonal operation.
It consisted of a pit, a crusher
with screening facilities, a maintenance shop and a hot plant.
Raw material is extracted from the earth and processed. The
product produced is used in asphalt paving and road construction.
The parties stipulated the operation was a small one.
When the pit is open only three employees on average operate
the facility.
On the day of the inspection the plant and
crusher were not running and only one a~ployee was at the
site.
-Docket Number WEST 88-96-M
Citation No. 3065794
When Inspector Marti arrived at the mine off ice, the
first thing he did was review the required records.
One of
the required records is a quarterly employment report, MSHA
Form 7000-2, which states the number of hours worked and the
average number of employees who work at that pit during the
quarter.
This report must be submitted quarterly to the Health
Analysis Center in Denver within 15 days after the end of the
quarter.
The inspector found the first and second quarter
reports were timely submitted but the third quarter report due
by October 15th had not been submitted as of November 4th, the
date of his inspection.
Inspector Marti informed Evelyn Vezzani, SecretaryTreasurer and wife of Louis P. Vezzani, the President of the
corporation, that Walsenburg was in violation of 30 C.F.R.
§ 50.30 since the third quarter report had not been submitted
in time to arrive at the Denver center by October 15th. Mrs.
Vezzani told him the report had been overlooked.
She explained
that they were closing-out their business at the pit so they had
a lot of different reports to get out and the third quarterly
report was just overlooked.
The inspector testified that the citation was abated before
he arrived at the pit the next day, by Respondent's mailing the
required report to the center in Denver.
Louis P. Vezzani, Respondent's President, testified that the
failure to send in MSHA Form 7000-2 within 15 days of the end of
the third quarter was "strictly a clerical oversight" on the part
of his wife.

2234

The undisputed testimony clearly established a violation
of 30 C.F.R. § 50.30. Citation No. 3065794 alleging a violation of 30 C.F.R. § 50.30 for failure to submit the third
quarterly report, MSHA Form 7000-2, to the MSHA Heal th and
Safety Analysis Center within 15 days after the end of the
third calendar quarter, is affirmed.
The Secretary originally characterized the violation as not
significant and substantial and proposed a penalty of $20. At
hearing counsel for the Secretary contended that the negligence
was high and proposed to increase the penalty from $20 to $100.
In determining the appropriate penalty for this violation
I have considered the statutory criteria set forth in section
llO(i) of the Act including the operator's small size.
I credit
the undisputed testimony that the failure to submit the report
in a timely manner was due only to a clerical oversight.
I see
no basis for determining negligence to be high enough to warrant
the higher penalty proposed.
I find the appropriate penalty for
this violation is the $20 penalty originally proposed by the
Secretary.
Citation No. 3065796
This citation alleges a violation of 30 C.F.R. 56.9032,
which provides:
"Dippers, buckets, scraper blades,
and similar moveable parts shall
be secured or lowered to the ground
when not in use."
Approximately 110 feet from the west side of the crusher
Inspector Marti observed a Caterpillar road grader that had a
12 foot long blade.
The road grader was parked unattended with
the blade in a raised position.
The blade was not secured or
lowered to the ground as required by the cited safety standard.
The blade had not been lowered to the ground because the
grader might have to be pulled a few feet in order to start it.
The grader could not be "pull-started" with the blade on the
ground.
Inspector Marti testified that he was concerned that there
could be a mechanical or a hydraulic failure that could accidentally cause the blade to come down.
If someone were working
with their foot under the blade when it came down it could cause
a permanent disabling injury.

2235

Mr. Louis Vezzani testified that without starting and
running the motor of the road grader, there was "no possible
way" that the blade could fall or come down.
The engine has to
be running in order to mechanically power the blade up or down.
The blade lift is mechanically gear driven.
It is not a hydraulic mechanism. Consequently, there is no possibility that
there could be a release of hydraulic pressure that would drop
the blade.
The operator has to start the engine and mechanically
lower the blade. Mr. Vezzani has used the road grader since
1961 to maintain the pit access road and there has never been
an injury involving that equipment .
.Inspector Marti stated that the violation was abated during
the afternoon of the day of his inspection by an operator who
started the engine of the road grader and lowered the blade.
This citation, No. 3065796, was originally marked and issued
as a non-S&S violation. At the hearing counsel for the Secretary
stated that she believed the evidence would show that the violation was significant and substantial and that the negligence
was very high.
Counsel proposed to amend the assessed penalty
from $20 to $200.
The Commission has stated that a "significant and substantial" violation is described in section 104(d}(l) of the Mine
Act as a violation "of such nature as could significantly and
substantially contribute to the cause and effect of a coal or
other mine safety or health hazard." A violation is properly
designated significant and substantial "if, based upon the particular facts surrounding the violation there exists a reasonable likelihood that the hazard contributed to will result in
an injury or illness of a reasonably serious nature." Cement
Division, National Gypsum Co., 3 FMSHRC 822.
In Mathies Coal Company, 6 FMSHRC 1, 3-4 (January 1984),
the Commission further explained its interpretation of the term
"significant and substantial" as follows:
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 saf ety--contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.

2236

On review and evaluation of the evidence I find that a preponderance of the evidence fails to establish the third element
of the Mathies Coal formula.
A preponderance of the evidence ·
fails to establish a reasonable likelihood that the hazard contributed to will result in an injury.
This finding is consistent
with the low exposure to the hazard and the history of no injury
involving the road grader since it was acquired by the operator
in 1961.
Considering the criteria set forth in section llOCi> of the
Act, it is found under the particular facts surrounding this
violation, that the Secretary's original proposed penalty of $20
is appropriate for the violation.
Docket WEST 88-142-M
Citation No. 3065797
This citation reads as follows:
"The fan blade on the motor-grader
(CAT.- NO 12 SN: 8Tl6519) was not guarded
against personal contact."
The citation alleges a significant and substantial violation,
of 30 C.F.R. § 56.14001 which provides as follows:
§

56.14001 Moving machine parts

Gears; sprockets; chains; drive, head, tail,
and takeup pulleys; flywheels; couplings;
shafts; sawblades; fan inlets; and similar
exposed moving machine parts which may be
contacted by persons, and which may cause
injury to persons, shall be guarded.
Inspector Marti testified that the same Caterpillar roadgrader cited for failure to lower the blade was also cited for
a violation of 30 C.F.R. § 56.14001 because he believed the blade
of the engine fan was exposed to personal contact. He testified
it had no guard that would prevent accidental finger contact.
The engine had no side panels.
If the motor had side panels,
Inspector Marti would have considered this adequate protection
from the hazard of the fan blade and would not have issued the
citation. Contact with the blade could cause serious injury
such as loss of a finger.

2237

Respondent presented evidence that the road grader was
used only to maintain the access road to the pit.
It was manufactured in 1951 without any side panels.
Its engine fan had
and still has, a shroud which is a semi-covering around the
fan blade.
The shroud covers and thus guards half the blade.
Respondent has owned the road grader for the last 27 years and
there has never been an accident or injury involving that piece
of equipment.
There has been no one working at the pit site since
October 15, 1987, approximately 20 days before the inspection.
Before that date the work at the pit had been seasonal and intermittent. ~t the end of the access road leading ·to the site is a
gate that was kept locked except when someone was working at the
pit. When the pit was open and working an average of three men
operated the facility. Consequently, exposure to the hazard of
the partially guarded fan blade was low.
Louis Vezzani testified that after the inspection he abated
the alleged violation by removing the equipment from the mine
site. Except for purposes of abatement the equipment was last
used at the mine site on October 15, 1987, which was approximately 20 days before the November 4th inspection. No work had
been done at the mine site since October 15, 1987.
Inspector Marti testified that he never returned to the pit
after his inspection, but on the basis of information given to
him by respondent, all violations were abated within the extended
time he allowed for abatement.
A preponderance of the credible testimony established a
violation of 30 C.F.R. § 56.14001 in that the revolving fan blade
was inadequately guarded.
The Secretary originally assessed a penalty of $54 for this
violation.
At the beginning of the hearing counsel for the
Secretary stated that "primarily due to the lack of abatement of
the violation" the proposed penalty should be increased to $400.
I find, however, that the unrebutted testimony of Mr. Vezzani
and the testimony of Inspector Marti clearly shows there was an
abatement of the violation.
The Secretary has the burden of proving that a violation
is significant and substantial. Under Mathies Coal the Secretary
of Labor must prove all four elements of the Mathies formula.
The third element is "a reasonable likelihood that the hazard

2238

contributed to will result in an injury." A "reasonable likelihood" is more than just a possibility.
The evidence in this case
established that the revolving blade of the fan was partially
guarded by a shroud, that the road grader was used only to maintain the access to the pit, and that only three people seasonally
and intermittently worked at the site.
Exposure to contact with
the fan blade of the motor was very limited. Upon evaluation of
the actual circumstances surrounding this violation I find tpat
a preponderance of the evidence established a possibility that
the hazard contributed to will result in an injury but not a
likelihood.
Therefore, I find that the violation was not significant and substantial.
Considering the statutory criteria set forth in section
llOCi) of the Act and the circumstances surrounding this violation, I find the appropriate penalty for the violation is $40.
For the foregoing reasons I

enter the following:

ORDER
1. Citation No. 3065794 and the Secretary's original
assessment of a $20 penalty is affirmed.
2.
Citation No. 3065796 and the Secretary's original
assessed penalty of $20 is affirmed.
3.
Citation No. 3065797 is modified to strike the
characterization of the violation as significant and substantial and a civil penalty of $40 is assessed.
The respondent is directed to pay to the Secretary of
Labor a civil penalty in the sum of $80 within 30 days of the
date of this order.

:fr~·

F. Cett1

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Building,\1961 Stout Street, Denver,
CO 80294
(Certified Mail)
Louis P. Vezzani, President, Walsenburg Sand & Gravel, P.O.
Drawer 352, Walsenburg, CO 81089
(Certified Mail)
/ot
2239

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

22041

NOV 91989
JOHN DIXON HACKER,
Complainant

v.

DISCRIMINATION PROCEEDING
Docket No. KENT 89-1-D
MSHA Case No. BARB CD 88-57

BLACK STREAK MINING,
Respondent

No. 1 Mine
DECISION

Appearances:

John c. Carter, Esq., Harlan, Kentucky, for the
Complainant;
Otis Doan, Jr., Esq., Harlan, Kentucky, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint filed by
Mr. Hacker with the Commission on October 4, 1988, against the
respondent pursuant to section 105(c) of the Federal ·Mine Safety
and Health Act of 1977. Mr. Hacker initially filed his complaint
with the Secretary of Labor, Mine Safety and Health Administration (MSHA), at its District 7 Field Office on August 15, 1988,
and in a statement executed by him on that day on an MSHA complaint form, Mr. Hacker made the following complaint statement:
At the end of our shift I ride the belt outside. On
07/25/88 while riding the belt to the surface I
observed a rock fall on the belt and where the fall was
the belt was cribbed on both sides. When I jumped off
the belt I hit one of the cribs and it threw me back
into the belt structure. As of this date I have
received no workman compensation.
I have been told
that I no longer have a job at this company.
I want my job back with backpay. Also I want the
workman's compensation due me and all my medical bills
paid.
In a statement given to an MSHA Special Investigator on
August 19, 1988, in the course of an investigation into his

2240

complaint, Mr. Hacker stated that mine management instructed him
to ride the belt into the mine, that riding the belt was illegal,
and had he refused, he would not have a job. He stated that
approximately a week prior to his alleged injury he informed an
MSHA inspector who was at the mine that he rode the belt into the
mine and that the belt stop cord was inoperative, and that the
inspector issued several violations to the respondent. He
further stated that he received medical treatment for his alleged
injuries, was hospitalized for 9 days, and.that when he contacted
mine management on August 16, 1988, to inquire whether he still
had a job, management informed him that he had quit and would not
be given his job back.
During the course of the hearing,
Mr. Hacker alleged for the first time that he was discharged by
the respondent for speaking with the inspector, and he suggested
that he was fired because his conversation with the inspector
resulted in violations being issued to the respondent. He also
asserted ttiat the respondent retaliated against him for informing
the inspector about his riding the belt and the inoperable stop
cord.
After the completion of its investigation of Mr. Hacker's
complaint, MSHA advised him by letter dated September 15, 1988,
that on the basis of the information gathered during the course
of its investigation, a violation of section 105(c) of the Act
had not occurred. Mr. Hacker pursued his complaint further with
the Commission, and in a letter dated September 26, 1988, which
accompanied his complaint, Mr. Hacker stated in relevant part as
follows:
I have lost my job due to an injury that I received
while being employed by Black Streak Mining.
I have
filed a workmen's compensation claim.
I have yet to
receive workmen's comp. or anything due to this injury.
I want to know from you all is it right to lose your
job while under a doctor's care? I have doctor's
statements and X-rays due to this condition, and I also
have witnesses stating verification of getting treated
by a doctor at the emergency room in Pineville at the
hospital.
The respondent filed an answer to the complaint denying that
it discriminated against Mr. Hacker, denying that he was injured
in any mine accident, and asserting that Mr. Hacker quit his job
because he did not return to work on July 26, 1988, and did not
supply a valid reason for not returning to work.
A hearing was held in Kingsport, Tennessee, and the parties
appeared and participated fully therein. The parties filed
posthearing briefs, and I have considered their arguments, as
well as the arguments made by counsel during the course of the
hearing.

2241

Issues
The issue-s presented in this proceeding are ( 1) whether or
not Mr. Hacker was discharged or voluntarily quit or abandoned
his job; (2) whether or not his alleged discharge or voluntary
termination was motivated or otherwise prompted by his engaging
in any protected safety activity; and (3) whether or not the
respondent retaliated or otherwise discriminated against
Mr. Hacker by either discharging him or forcing his termination
because of his.engaging in any protected safety activities.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 301 et seq.
2.
Sections 105(c) (1), (2), and (3) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 815(c) (1), ~2) and
( 3) •

3.

Commission Rules, 29 C.F.R. § 2700.l et seq.

Complainant's Testimony and Evidence
Complainant John Dixon Hacker testified that on July 25,
1988, at the end of his shift, he rode the conveyor belt out of
the mine, and when he observed a rock on the belt in an area
which had been cribbed, he jumped off the belt to avoid the rock
and he was thrown back against the belt structure. He then
.waited until fellow miners Joe Stapleton and Mark LeMasters came
into the area and he advised them that he was "all right."
Mr. LeMasters returned to the outside to get a bar to break down
the rock, and Mr. Hacker reversed the belt and went back to the
belt head to obtain a hammer. He then rode the _belt back to the
location of the rock and helped Mr. LeMasters and Mr. Stapleton
break down the rock. After they finished, they all left and
exited to the outside (Tr. 11-14).
Mr. Hacker stated that he left the mine after the incident
in question because he was "shook up pretty good" and "was pretty
well scared and everything and I didn't think I was hurt that
bad." When he arrived home he "was hurting bad" and could not
get out of his car. His wife called the mine in an effort to
contact the mine operator about taking him to the hospital but no
one answered the phone. His wife then called mine operator
Darrell Middleton's wife at a store which they operate and she
told his wife to take him to the emergency room. Mr. Hacker
stated that the calls were made by his wife because he wanted to
report the accident, and in order for someone to verify for the
hospital that he worked at the mine for workmen's compensation
purposes (Tr. 15-17).

2242

Mr. Hacker confirmed that Windell Middleton is the company
and was his supervisor, and that his brother
Darrell Middleton was the president. He stated that the lack of
belt clearance where the rock was located contributed to his
injuries, and that he had to turn his head sideways to clear the
rock while riding the belt. He also confirmed that the belt was
equipped with pull ropes but they were inoperative {Tr. 18).

vice-presiden~

Mr. Hacker stated that approximately a week before he was
injured he spoke with MSHA Inspector Chaulk Myers "about the
belts and stuff" and "the belt in general" {Tr. 20). He stated
that he informed Mr. Myers that he rode the belt into the mine
and that Mr. Myers advised him that he was not supposed to do
this because there was no belt clearance. Mr. Hacker stated
further that sometime between July 14 and 17, 1988, Mr. Myers was
at the mine to conduct an electrical inspection and asked him to
call the base to shutdown the belt so that he could inspect it.
However, no one would answer the phone, and Mr. Myers waited an
hour and a half before the belt was shutdown. Mr. Myers then
told Mr. Hacker that he was "going to get him" for interfering
with an inspection for not shutting the belt down (Tr. 23).
Mr. Hacker stated that he did not shut the belt down because
he lacked the authority to do so and he was specifically told
that if he ever shutdown the belt he would lose his job. He
explained that shutting down the belt while it was loaded would
make it difficult to restart and could result in belt damage {Tr.
24) •

When asked whether the inspector issued any citations as a
result of his riding the belt and the inoperative pull ropes,
Mr. Hacker answered "to my knowledge, there was." When asked how
he knew that citations were issued, he stated that the outside
man, Johnny Brooks, informed him that the inspector was mad when
he left the mine and that he wrote up a violation "for interfering with the inspector's job and for the belt. There were
several violations on the belt." Mr. Hacker stated that this
occurred a week to a week and a half prior to his injury (Tr.
25) •

Mr. Hacker stated that he rode the belt to and from his work
station and that it was illegal for him to do so. He explained
that it was illegal because of the lack of clearance and the
inoperative pull cords. He also stated that if the cords were
operational, it would have been legal to ride the belt, but that
the cords have never been operational for as long as he worked at
the mine {Tr. 26-27).
Mr. Hacker stated that he rode the belt to his work station
because that was the only way to reach the belt head to turn it
on in order to transport the coal out of the mine. He also
stated that Windell Middleton required him to ride the belt.

2243

Mr. Hacker confirmed that he had previously quit his job at the
mine when "I was starting to get scared," and that he was rehired
(Tr. 28). He also confirmed that he did not inform Mr. Middleton
that it was illegal to ride the belt because "if I would have
complained to Mr. Middleton about the belt he would have first
replaced me and got somebody else" (Tr. 29).
Mr. Hacker stated that after getting out of the hospital he
spoke to Darrell Middleton on approximately August 9, 1988, and
that Mr. Middleton "told me that he'd like to handle it more or
less under the table and that, come on back to work." Mr. Hacker
stated that he did not return to work because he was under a
doctor's care at that time and that he so informed Mr. Middleton
(Tr. 31-32).
Mr. Hacker stated that after filing his complaint with MSHA,
the MSHA investigator suggested that he call Mr. Middleton and
ask for his job ba-ck (Tr. 33). Mr. Hacker stated that he filed
the complaint "because of the job and everything. And the
injury.
They was stating that nothing happened and stuff" (Tr.
34) •

Mr. Hacker stated that he was never told he did not have a
job, but that Mr. Middleton told his wife that he did not have a
job because nothing happened to him.
He also stated that Windell
Middleton informed him on August 16, 1988, that nothing had
happened "and for me to sue him" and that "I no longer had a job
there" (Tr. 36).
When asked for his opinion as to why he no longer had a job
with the respondent, Mr. Hacker replied as follows (Tr. 36-38):
A.
If I was to give my opinion, I'd say that I was
starting to be a heartache for them.
Q.

Okay, why were you a heartache?

A. Well, they try to do the best they can running coal
and stuff and the people goes to, you know, talking and
everything, and stuff like that, they don't like that,
and stuff.

*

*

*

*

*

*

*

Q. And you think that you, specifically, however,
you're a heartache to them? You said you thought you
was a heartache to them?
A.
By, like, talking to that mine inspector and stuff.
And it got ·right back over to them that, over that.
And they know that • • .

2244

You know, some of the people take a lot of stuff,
and I'm the type of feller, I won't take too much of
anything.
Respondent's counsel stated that Mr. Hacker's workmen's
compensation claim filed against the respondent has been settled
and that Mr. Hacker will receive $12,000 from the respondent's
insurance carrier as an "out of court settlement" for his injury
claim (Tr. 39-41).
Mr. Hacker confirmed that he has not been employed since he
left the respondent's employ, and although he is able to work, he
has not looked for work because of his pending workmen's compensation claim (Tr. 41).
On cross-examination, Mr. Hacker confirmed that the respondent disputed his claimed injury and workmen's compensation
claim. He also confirmed that Inspector Myers told him that he
was going to ride the belt out of the mine, but that he never
observed him doing so (Tr. 44). Mr. Hacker further confirmed
that he has no copies of any of the violations allegedly issued
by MSHA, that he did not subpoena Mr. Myers to testify in this
case, and that the only evidence he has to support his contention
that violations were issued was based on what someone may have
told him (Tr. 45).
Mr. Hacker confirmed that no one else was present when he
spoke to Inspector Myers about the belt and that he did not tell
either of the Middleton brothers that he had complained to the
inspector about the belt (Tr. 46). He also confirmed· that he was
injured abo~t a week after speaking with Mr. Myers, and that
during that week his job status was not changed, and that he
still worked as a belt headman and received the same pay. He
also confirmed that Windell Middleton "has never jumped on me,"
and that although Darrell Middleton "has chewed on us a little
bit," this occurred prior to speaking to the inspector and his
injury, and that during the week after he spoke to the inspector,
the Middleton brothers never "jumped on him for anything" (Tr.
4 7) •

Mr. Hacker stated when he rode the belt into the mine to his
work station on July 25, 1988, he observed a rock hanging down on
the belt and reported it. At the end of the shift, while riding
the belt out of the mine, he jumped off the belt to avoid the
rock which he knew was there and was hurt when he hit a crib and
was thrown back into the belt structure. He confirmed that after
this occurred, he helped take down the rock by using a sledge
hammer while he was bent down, and that this job took approximately 30 to 45 minutes (Tr. 61).
Mr. Hacker stated that after the rock was taken down, he and
the other two men who helped do the work rode the belt out of the

2245

mine. His brother-in-law Johnny Brooks was outside, and
Mr. Hacker stated that he told Mr. Brooks that "I took a pretty
good jolt" but did not tell him that he was hurt or needed to go
to the hospital. Mr. Hacker stated that after coming out of the
mine, and before leaving to go home, he told no one that he had
been hurt and had to go to a doctor, and that the Middleton
brothers were not present at that time (Tr. 63).
Mr. Hacker confirmed that the Middleton brothers never told
him that he had been fired, that he "got along good with them,"
that "they were good men to work with and work for," that "payday
was always there," and that they never gave him "a hard time"
(Tr. 66). Mr. Hacker denied that his dispute with the Middleton
brothers arose because of his workmen's compensation case, and
when asked why the dispute arose, he responded as follows (Tr.
66-67) :

~-

THE WITNESS: _Well, mainly the dispute arised because
my wife was trying to get a hold of Darrell Middleton
and she kept, or he kept on putting her off and he put
her off for like three or four days and then the
following week she had called back again and then they
finally told her that nothing had happened and he
wasn't going to do nothing, and that's why the dispute
arised, sir.
JUDGE KOUTRAS: So, that all had to do with your compensation claim, doesn't it?
THE WITNESS:

Sir?

JUDGE KOUTRAS: You claimed you were injured in the
mine and they kept denying it.
THE WITNESS:
JUDGE KOUTRAS:

Yes, sir.
And is that why the dispute arose?

THE WITNESS: Well, no, not really.
I mean, the dispute. rised because there was a lot of unsafe working
conditions there.

Q. You never, but you never filed any injury
complaints?
A.

No.

Q. And you never complained to them prior to the time
this dispute arose over this workers' compensation
case, did you?
A.

I just quit once.

2246

And, at (Tr. 68-70):

Q. Maybe I'm not explaining it right. What I'm saying
is, prior to the time you say you got hurt and you
filed your worker's compensation case, you never filed
any complaints with MSHA, you never complained to these
fellows.
You say they were good men to work for and then
after you filed this worker's compensation case, and
they disputed notice, then's when all this problem came
up, isn't it?
A.
No, when I, like what I say, when I was dazed and
everything, when I talked to Windell and stuff there,
and then he's the one that brought it all out.

Q. But I'm talking about, that happened and you
say
A.

Because I wasn't getting nowhere.

Q. Okay, let me ask you this. You said, you just
testified that the week from, that you talked to the
inspector about a week before you got hurt and up until
July 25th, you say you didn't, they didn't harass you.
You didn't have any problem with them and they didn't
fire you?
A.

Right.

Q. And a week has passed and the reason you left work
was because you say you got injured, isn't that right?
They never fired you or ran you off or anything? Did
they?
A.

Well, what is it when

Q.

No,

A.

No, okay.

Q.

Did they?

A.

Did they what?

. . .

just answer my question.

Q.
Did they fire you or run you off?
date of injury, July 25th?
A.

No, sir.

2247

Prior to your

In response to bench questions concerning his discrimination
claim, Mr. Hacker stated as follows (Tr. 83-85):
JUDGE KOUTRAS: Now, let me ask you this question, why
do you believe you were discriminated against here?
THE WITNESS:
JUDGE KOUTRAS:

Why do I believe I was?
Yeah?

THE WITNESS: I, to my knowledge, I just say that, you
know, with me talking to the mine inspector and stuff
like that, I believe that they don't, they didn't
really take too good to that.
JUDGE KOUTRAS:

Take too good to what?

THE WITNESS: To me, you know, talking to them and
everything. Because the mine inspector, Chaulk Myers,
told me, he said, anything that you say and everything,
he said, they can't use against you and stuff like
that.
The mine inspector had told me this himself and he
said, you know, they can't get rid of you on your job
and stuff and he said, answer it honestly.
JUDGE KOUTRAS: How did this conversation come up with
this inspector a week before you were injured?
THE WITNESS:

How did it?

JUDGE KOUTRAS: Yeah, how did the subject come up about
your riding the belt and all that business?
THE WITNESS: Well, the man had .
See, my job, my
job consists of doing nothing but watching my belt.
Do
you understand what I'm saying? I watch the belt and
make sure that the coal's running right and then do
little odd jobs and stuff like that. Okay, what it
consists of is not too much of anything. Just being
there and making sure that the belt runs right. Okay,
I had this free time while this inspector was in there
trying to do his job. Okay, he didn't get to do his
job, so we just sat there and chit-chatted, is what it
amounted to. You know, just talked. And, you know, he
was talking, asking me questions and, you know, I asked
him a few and you know, we just chit-chatted, is what
I'm trying to say.
JUDGE KOUTRAS:
job?

What do you mean, he couldn't do his

2248

THE WITNESS: Well, he told me to shut the belt down
and I was told not to shut the belt down.
And, at (Tr. 95-97):
JUDGE KOUTRAS: Now, I'm going to ask you up front, did
somebody suggest to you, well, listen, in addition to
your compensation·claim, maybe you can say that you
talked to the inspector and that the company fired you
because you talked to the inspector and suggested to
you that you file a discrimination complaint?
THE WITNESS: When I was more or less fired that's when
I took further action. That's when it was.
JUDGE KOUTRAS: Yeah, but you never raised any issue
then that you were fired for talking to the inspector.
Are you trying to convince me that the Middleton's
fired you for talking to an inspector, or wouldn't give
you a job back because you complained to an inspector?
THE WITNESS: That, more or less, that's what a lot of
it amounted it.
I mean, they wouldn't give me my job
back because of the accident. That's the whole main
thing right there.
JUDGE KOUTRAS:

Because of the accident.

THE WITNESS: But a lot of things, it's because they
work illegal in the mine and then they get away with
it.
JUDGE KOUTRAS:
activity?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:
job there.

Have you ever reported their illegal
No, sir, I have not.
Why not?
Well, if you report it you wont' have a

JUDGE KOUTRAS: But how do they know you're going to
report it. You know, you can pick up the telephone and
make anonymous complaints.
THE WITNESS:

Okay.

JUDGE KOUTRAS: Can't you do that? Can't you call up
the, you know where the MSHA district office is in your
neighborhood or in your local where you live?

2249

THE WITNESS:
JUDGE KOUTRAS:

Yeah, I know where it's at.
Do you know who the inspectors are?

THE WITNESS: I just, I know that Chaulk Myers and, no,
I don't know him personally, no.
Mr. Hacker confirmed that during his 8 months of employment
at the mine he never reported any safety violations to MSHA, and
when asked to identify the alleged "illegal things" at the mine,
Mr. Hacker stated "I just soon not comment on it" (Tr. 101). He
stated that he had informed the Middletons about the existence of
the rock over the belt, but nothing was done about it (Tr. 102).
He confirmed that he had quit his job in the past because "the
top was bad" and because he was scared to work under the top (Tr.
105). He also confirmed that he told Windell Middleton that the
top was bad and needed to be taken care of (Tr. 114).
Mr. Hacker stated that when he last quit his job at the mine
because he was scared he had never worked in a mine before and
that "it was all new to me" (Tr. 120). Mr. Hacker confirmed that
he never told the Middleton's about his conversation with Inspector Myers, and he has no proof that Mr. Myers told them about
their conversation (Tr. 120). He also confirmed that he never
spoke to any other inspectors during the time that he worked at
the mine (Tr. 121).
Mrs. Virginia Hacker, complainant's wife, stated that she
was at the mine on July 25, 1988, and observed her husband come
out at 5:30 p.m. Her husband told her that "his back was bothering him." Present at this time was her brother John Brooks, and
miners Joe Stapleton and Mark Masters (sic). Mrs. Hacker stated
that after arriving home, her husband informed her that his back
"was hurting rather bad" and she called the mine to see about
taking him to the Pineville Hospital. There was no answer at the
mine, and she placed a call to Darrell Middleton's wife, Mary
Lynn, at a local store which they operate, and Mrs. Middleton
instructed her to take Mr. Hacker to the doctor. Upon arrival at
the hospital, Mrs. Hacker stated that someone from the hospital
emergency room called Mrs. Middleton to verify Mr. Hacker's
employment (Tr. 125-132).
Mrs. Hacker stated that on July 27, 1988, Mr. Hacker
returned to the doctor at the hospital because "he was hurting
real bad," and that she called the mine that day and spoke to
Windell Middleton about filing an accident report, and that
Mr. Middleton informed her that he would have to talk with his
brother about the matter. Mrs. Hacker stated that she called
again, and then went to the mine to pick up her husband's check,
and that Windell Middleton advised her that he had spoken to his
brother and that no accident had occurred and no accident report

2250

would be made. Mrs. Hacker stated that she informed
Mr. Middleton that she would see a lawyer and that he told her
"that would be the thing for you to do." She confirmed that she
has not spoken to the Middleton brothers since that time, and
nothing was said about her husband returning to work (Tr.
132-134) .
On cross-examination, Mrs. Hacker stated that when her
husband came out of the mine on the belt he did not need any help
in getting off the belt, and she did not hear her husband tell
anyone else that he had been hurt. He only told her that "his
back was hurting" (Tr. 134). Mrs. Hacker stated that her husband
attended work regularly and had never been suspended or fired
during his approximate 8 or 9 months of employment with the
respondent, but that he had previously quit his job at the mine,
and then returned to work there again (Tr. 137).
Mrs. Hacker stated that her husband had complained to her
about the rock while he was employed at the mine and that "he was
scared of it because he was not used to coal mining" (Tr. 146).
She also stated that her husband "was all the time talking about
the belt and the rock," and that "they wanted him to cut the belt
off and he wouldn't cut it off because he was afraid he'd lose
his job over it" (Tr. 149). She had no knowledge of any specific
conversations that her husband may have had with any inspectors
about the belt or rock, but that they discussed the mine "all the
time" (Tr. 149). She believed that riding the belt was illegal,
and that her husband had informed her that the belt pull cord was
not working (Tr. 153). She confirmed that she had ridden the
belt when she was employed at the mine when it was op·erated by
another company, and that the only information she had about the
respondent's operation of the mine is that whic~ she received
from her husband (Tr. 156-157).
Robert G. Hunley, stated that he has never worked for the
respondent, but that he has worked in an underground mine for a
couple of years. He stated that he knew Mr. Hacker for a couple
of years and took him to the doctor on July 27, 1988, and then to
the hospital emergency room where he was admitted. When asked
about his knowledge of the case, Mr. Hunley stated that· 11 all I
know is, was he got hurt in the mines" and that he learned this
from Mr. Hacker (Tr. 160). Mr. Hunley stated that Mr. Hacker
informed him that "there was a rock hanging over the belt about
to fall," but that he gave him no advice as to how to proceed
with this case (Tr~ 161) . He stated that Mr. Hacker had complained to him about the rock hanging over the belt for a month
or so before he was injured (Tr. 161).
Mr. Hunley stated that he had worked in low coal seams, and
that some mines have problems with the top in low coal, and that
it is an inherent condition of mining. He agreed that a mine is

2251

a "scary place" for a young man on the job a few months (Tr.
162). He stated that his conversations with Mr. Hacker concerning the mine took place while he was eating at a restaurant
operated by Mr. and Mrs. Hacker, and that he told Mr. Hacker that
the rock may or may not be dangerous depending "on what it looked
like." He could not recall any comments by Mr. Hacker in this
regard, and that from what he knew the rock problem was only at
one location over the belt (Tr. 164). Mr. Hunley denied that he
suggested to Mr. Hacker to call a mine inspector about the rock,
and that this conversation never came up (Tr. 165).
Mr. Hacker's counsel made a proffer that Mr. Hacker's
sister, Russella Horner, was present at the mine on July 25,
1989, with Mrs. Hacker, and that if called to testify, she would
state that she was present when Mr. Hacker complained to his wife
about his back on that day. Respondent's counsel accepted the
proffer and Mrs. Horner was not called to testify (Tr. 167).
John Brooks, stated that he works for the respondent and
that he is married to Mr. Hacker's sister, and that Mr. Hacker is
married to his sister. Mr. Brooks stated that he works at the
mine as an outside man taking care of the outside and the No. 1
belt, back to the No. 2 belt. He confirmed that he worked at the
mine during the entire time that Mr. Hacker was employed there,
and that he was at work on July 25, 1988. He stated that
Mr. Hacker, Mr. LeMasters, and Mr. Stapleton came out of the mine
at the same time at the end of the shift, and that Mr. Hacker
said nothing to him about being injured. Mr. Brooks explained
that Mr. LeMasters and Mr. Stapleton had come out earlier, but
went back in after Mr. Hacker called out (Tr. 171-175).
Mr. Brooks stated that at 11:30 p.m., the evening of
July 25, 1988, Mr. Hacker came to his home and informed him for
the first time that he had injured his back when he jumped off
the belt to avoid a rock. Mr. Hacker informed him that he would
not be at work the next day, and gave him a doctor's excuse.
Mr. Brooks said that he did not look at it, and laid it on the
night stand next to his bed. The next day, he called Windell
Middleton and informed him that he would need someone for the
belt head that day, but Mr. Brooks was not sure whether he
explained the reason for needing someone that day. Mr. Brooks
could not recall what he did with the doctor's slip that
Mr. Hacker had given him, but he confirmed that he did not give
it to Windell or Darrell Middleton. He confirmed that he later
informed the Middleton's that Mr. Hacker would not be coming to
work because he injured his back, and he believed that he advised
them of this within 2 days of the accident (Tr. 175-177).
Mr. Brooks stated that he and Mrs. Hacker have discussed
Mr. Hacker's working at the mine, and that Mrs. Hacker did not
want her husband working there because "he didn't like the idea

2252

of working in them, underground, . . . and he said he didn't like
riding under the rock on the belt and stuff" (Tr. 178).
On cross-examination, Mr. Brooks confirmed that Mr. Hacker
said nothing to him about being injured when he came out of the
mine on July 25, 1988, and that he jumped off the belt after
exiting the mine and said nothing about going to the hospital
(Tr. 178-182). Mr. Brooks stated that he has observed MSHA
Inspector Myers riding the belt in question, and that there are
pull cords on the belt. The purpose of the cords is to stop the
belt in the event of any problems (Tr. 183).
Mr. Brooks stated that Mr. Hacker "was skittish" about
working in the mine, and that he (Brooks) has had no problems
working for the Middletons and that they have never harassed him
(Tr. 185). He confirmed that Mr. Hacker could crawl to his work
station at the belt head, but that "it would be a long crawl"
(Tr. 185). Mr. Brooks further confirmed that Windell Middleton
instructed him to keep the pull cords working, and he was not
aware of any violations being issued on the pull cords. He was
aware of a violation concerning inadequate crawl space next to
the belt. The condition was created when the belt was cribbed,
and the space needed to be widened, and Windell Middleton
instructed the crew to correct the problem (Tr. 187).
In response to further questions, Mr. Brooks stated that the
belt in question was approximately 3,500 feet long, and he was
not aware of any citations issued by Inspector Myers for the
failure of the respondent to cooperate with him in shutting the
belt down. He confirmed that he had no knowledge of any citations which _may have been issued at the mine, and he explained
that any citations would be posted in another mine area from
where he works (Tr. 190).
Mr. Brooks stated that the pull cords on the No. 1 belt in
question were operational on July 25, 1988, and that the No. 2
belt is not equipped with a pull cord because it is not an
authorized mantrip. Mr. Brooks confirmed that when Mr. Hacker
called out and told him about the rock on the belt, the
Middletons were not present, and that he sent Mr. LeMasters and
Mr. Stapleton in to see about the problem. Mr. Hacker had
advised him earlier about the rock, but told him that "he was
going to stop and get it on his way out" (Tr. 193-195).
Mr. Brooks stated that at the time Mr. Hacker came to his
home on the evening of July 25, 1988, he lived 25 miles away, and
drove to his home with his wife. Mr. Hacker woke him up,
informed him that he had hurt his back and would not be at work
the next morning. Mr. Brooks also confirmed that Mr. Hacker gave
him a "pink slip," but he did not look at it and just put it on
his night stand. Mr. Brooks stated that on his way to work that
morning, he stopped and called Windell Middleton and informed him

2253

....

that Mr. Hacker would not be at work, but he did not explain why.
When asked why he did not explain to Windell Middleton the reason
for Mr. Hacker's inability to report for work, Mr. Brooks stated
"I don't really know" (Tr. 198). When asked if Mr. Middleton
sought any explanation from him as to why Mr. Hacker would not be
able to come to work, Mr. Brooks responded "this has been over a
year, and I don't remember" (Tr. 199). Mr. Brooks confirmed that
his wife misplaced the slip that Mr. Hacker had given him, that
it never got to Mr. Middleton, and when Mr. Hacker informed him
that he could get a copy, Mr. Brooks did not search for the slip
(Tr. 200). When asked if he knew what the instant case was all
about, Mr. Brooks responded "not for sure, . . . I'm not clear on
whether its compensation or disability, . • . I don't know what,
really" (Tr. 202).
Mr. Brooks explained the operation of the belt, and he
stated that it is normally started and stopped from the outside
by a switch, and that the pull cords are only to be used in an
emergency. He confirmed that he started and stopped the belt
from the outside on July 25, 1988, and that Mr. Hacker informed
him by telephone that "he had a rock on a belt and he was going
to have to bust it up" (Tr. 205).
Mr. Brooks stated that he was not aware of any safety complaints made by Mr. Hacker to the Middleton's or anyone else, but
that Mr. Hacker has stated to him (Brooks) that he did not like
riding the belt under the rock, and did not like being that far
back underground. Mr. Brooks did not agree that the Middleton's
were not concerned about safety or the lack of operational cords
on the belt, or that anyone who did not ride the belt would be
out of a job (Tr. 207). Mr. Brooks confirmed that he has never
been cited for any violations on the Number 1 belt or any other
equipment that he is responsible .for (Tr. 208) .
Mr. Brooks stated that Mr. Hacker informed him that he had
spoken to Inspector Myers about a week before he was injured, but
Mr. Brooks could not recall what was said, and he confirmed that
he did not speak with the inspector (Tr. 209). Mr. Brooks
explained that in the event the number 1 belt is loaded and needs
to be shutdown, he was instructed to contact someone to make sure
the belt was empty before it was shutdown, and he could not
recall receiving any calls from anyone to shut the belt down on
the day that the inspector was there. However, he confirmed that
he was aware of the fact that someone was trying to contact the
face area where coal was being run to stop loading coal so that
the belt could be stopped, but that the face area was a long
distance away and "we .have phone trouble every once in a while."
Mr. Brooks stated that the inspector did not like the fact that
the belt wasn't stopped, but said nothing to him about it. He
confirmed that the inspector shut the belt down from the outside
because he wanted to check the smoke roller test switches, and
that he inspected the belt. Mr. Brooks recalled that he had to

2254

clean some dirt off one.of the mats in front of the belt switch
box (Tr. 210-210).
Mr. Brooks confirmed that the number 1 belt pull cord was
broken, but denied that it was broken during all the time that
Mr. Hacker worked at the mine. Mr. Brooks stated that he had
worked on the cords three or four times at locations "where it
was old," and that he conducts the inspections on the belt. He
stated that while Mr. Myers was inspecting the belt, he (Brooks)
was inspecting it to make sure that the cord switches were all
working (Tr. 216). He confirmed that the inspector shut the belt
down because of a smoke roller slippage switch, but could not
recall whether he worked on the belt before or after the
inspection (Tr. 219).
Mr. Brooks stated that as far as he knew, Mr. Hacker got
along with the Middleton's, and that although Mr. Hacker told him
(Brooks) several times that he did not like working at the mine,
he never said anything to him about safety violations, rocks
falling on the belt, or that the Middleton's did not care about
safety and were intimidating mine inspectors. Mr. Brooks stated
that he has never heard the Middleton's intimidating any
inspectors (Tr. 226).
Jimmy Joe Stapleton testified that he now works at another
mine company owned by the Middleton's, but worked for Black
Streak on July 25, 1988. Mr. Stapleton stated that a day or two
later, Windell Middleton asked him if Mr. Hacker had been injured
at the mine on July 25, 1988, and Mr. Stapleton informed him that
he had no knowledge of any injury. Mr. Stapleton stated that he
was working on the number 1 belt "running fire sensor line," and
that he had to crawl into the mine because he was working on the
belt. He confirmed that he and Mr. LeMasters went back into the
mine that same evening to help Mr. Hacker break up a rock. He
stated that he crawled out of the mine, but was not sure whether
Mr. LeMasters rode the belt out because he was already outside
when he came out, and they waited until Mr. Hacker came out (Tr.
233) .
On cross-examination, Mr. Stapleton stated that he never
observed anything "illegal" at the mine, that "it was in fair
shape" and "safe to me," and that he had worked in the mines for
14 years and would not work in any unsafe faces (Tr. 234).
He
explained the roof timbering, cribbing, and roof bolting work
which was done at the mine pursuant to the roof-control plan, and
confirmed that the number 1 belt was cribbed on both sides
"almost all the way from outside to in" (Tr. 235). He confirmed
that the mine was "low seam" with a 34-40 inch seam, and that
"rock will fall every now and then" because of weather changes
(Tr. 236).

2255

Mr. Stapleton confirmed that Mr. Hacker helped him and
Mr. LeMasters break up the rock in question and that Mr. Hacker
used a sledge hammer on the rock while he and Mr. LeMasters were
throwing the pieces out of the way. He also confirmed that
Mr. Hacker said nothing to him about being hurt or going to the
hospital, and if he had, he would have reported it.
Mr. Stapleton stated that to his knowledge, the belt pull cords
were operational (Tr. 237).
Mr. Stapleton stated that when he came out of the mine after
working on the belt sensor line on July 25, 1988, he saw no
reasons why anyone could .not ride the belt out, and that "there
was plenty of height over it" (Tr. 238). He confirmed that when
he went back in to help Mr. Hacker break up the rock, he rode the
belt in, and rode it back out after taking care of the rock (Tr.
239). He was not aware of any violations on the belt that day,
and the only other violations he was aware of were "maybe rock
dust or something _like that" (Tr. 240) .
Mr. Stapleton stated that he knows Inspector Myers and has
observed him at the mine-two or three times, and that he was
aware of no problems on the belt in question, or any problems
with Mr. Myers stopping the belt. He confirmed that Windell
Middleton has instructed him and Mr. Hacker not to shut the belt
off when it is loaded with coal because it will not start up
again (Tr. 241). Mr. Stapleton stated that he has worked for the
Middleton's for 2 years and that "they're good people to work
for." He has never known them to make any miners work in unsafe
conditions (Tr. 241).
Mark LeMasters confirmed that he has worked at the mine for
18 months, and although he knew Mr. Hacker worked as a belt
headman, he never worked closely with him. He recalled that on
or after July 25, 1988, when Mr. Hacker did not come back to
work, he was assigned to do his work on the belt head (Tr. 247).
Mr. LeMasters stated that he performed this work for several
days, and that he was then replaced by Rusty Ledford. He confirmed that he did work with Mr. Hacker making belt splices, and
that he could recommend him for this work (Tr. 249).
Mr. LeMasters stated that he observed no one get hurt while
he and Mr. Stapleton were helping Mr. Hacker break up and load
out the rock in question. Mr. Hacker was using an 8 or 10 pound
sledge hammer to break up the rock, and said nothing to him about
being hurt or that he had to go to the hospital. Mr. LeMasters
stated that the mine was safe, and that he had never observed the
Middleton's "harass Mr. Hacker or do anything out of the.way to
Mr. Hacker." He confirmed that he filled in 4 or 5 days doing
Mr. Hacker's job after he failed to return to work (Tr. 252).
Mr. LeMasters stated that he had once quit working at the
mine, but came back at a later time. He has never observed

2256

anything illegal going on at the mine, and had plenty of supplies
to work with.
He did not know whether his replacement Rusty
Ledford worked at any other mine operated by the Middleton's (Tr.
255) .
Mrs. Mary Lynn Middleton, confirmed that she is Darrell
Middleton's wife,~ and that she knows Mrs. Hacker, but does not
know Mr. Hacker.
She could not recall speaking with Mrs. Hacker
on July 25, 1988, and did not recall Mrs. Hacker calling her that
day.
She also could not recall anyone calling her from a
doctor's office or from a hospital to inquire as to any workmen's
compensation insurance coverage at the mine (Tr. 256-257).
on cross-examination, Mrs. Middleton stated that she operates a grocery store, is not employed at the mine, has no authority to clear workmen's compensation, and that she is not familiar
with everyone working for her husband (Tr. 258).
Respondent's Testimony and Evidence
Windell Middleton, testified that he and his brother Darrell
operate the mine as a partnership, and have operated it since
October, 1987.
Mr. Middleton stated that he is the mine superintendent and served as Mr. Hacker's supervisor.
He confirmed that
the number 1 belt is a designated man-trip and is equipped with
functional pull cords, and that they were working in July, 1988.
He confirmed that he advised the belt headman not to shut the
belt down if it is loaded except if there is an emergency, and he
explained that if the belts are shutdown while loaded, they will
usually break if the belt is started again while still loaded
with coal (Tr. 263).
Mr. Middleton stated that Mr. Hacker could either ride the
belt into the mine to his work station, or crawl in along a crawl
space adjacent to the belt.
He described the belt cribbing used
for roof support, and the prevailing roof conditions, and he
stated that bad top is always taken down when detected (Tr. 264).
Mr. Middletbn confirmed that he hired Mr. Hacker as a belt
headman, and that he had previously" quit his job because "he was
scared over a piece of rock . . . beside the belt."
Mr. Middleton stated that the rock was taken down, but Mr. Hacker
quit and was hired back after calling him for 2 weeks asking for
his job back. Mr. Middleton confirmed that Mr. Elijah Myers is
an MSHA inspector known as "Chaulk," and that he has inspected
the mine 8 or 10 times since it was opened. He also confirmed
that a state inspector is at the mine at least once every
2 months conducting inspections (Tr. 266-267).
Mr. Middleton stated that he has no knowledge of Mr. Hacker
speaking with Inspector Myers prior to his complaint.
He was
aware of the fact that Mr. Myers visited the belt head where

2257

Mr. Hacker was working on one occasion, but he has no idea as to
what they may have talked about (Tr. 268). Mr. Middleton stated
that the citations he received in July of 1988 from Mr. Myers
were citations for rock dust on the belt line, and a safeguard on
the belt dealing with inadequate crawl space. He confirmed that
the safeguard was complied with, and as long as the pull cords
were working, adequate crawl space was not required, and that the
safeguard only provided for an additional precaution. He confirmed that the violations were all abated (Tr. 270).
Mr. Middleton stated that he first learned that Mr. Hacker
was not coming to work when Mr. Brooks called him and informed
him that he would need someone to watch the number two belt head.
Mr. Brooks informed him that Mr. Hacker came to his home at 11 or
12 p.m. on July 25, 1988, and told him that he was not going back
to work at the mine because "he was scared of the mines and that
he was going to tell us that he got his back hurt, cleaning that
rock up" (Tr. 271). Mr. Middleton stated that he never saw a
doctor's excuse for Mr. Hacker's absence from work and that no
one ever mentioned such an excuse to him (Tr. 271).
Mr. Middleton stated that after Mr. Hacker failed to report
for work he assigned Mark LeMasters to watch the belt for 4 or
5 days, and since Mr. Hacker had quit his job before,
Mr. Middleton believed that he wOuld call him again and ask for
his job back. Mr. Middleton stated that he waited 2 weeks to
hear from Mr. Hacker before hiring Rusty Ledford to replace him,
and when Mr. Hacker called him and informed him that he was ready
to come back to work, Mr. Middleton told him that he thought he
had quit and had hired someone else to replace him.
Mr. Middleto.n stated that Mr. Hacker never called to inform him
that he had been hurt, and that he has never seen a medical
excuse of any kind. He confirmed that he made an inquiry into
Mr. Hacker's alleged injury, and that Mr. Brooks and
Mr. LeMasters told him that they had no knowledge of any injury
sustained by Mr. Hacker, observed no injury, and that Mr. Hacker
"didn't act like he was hurt" when he used a sledge hammer to
break up the rock and throw it out of the way (Tr. 273).
I

Mr. Middleton stated that he operates a safe mine, has never
threatened any mine inspectors, and he believed that Mr. Hacker
filed the discrimination complaint because "he's too lazy to work
and he wants somebody to hand him out something" (Tr. 273).
Mr. Middleton confirmed that the company disputed Mr. Hacker's
workmen's compensation claim, and that he had never harassed
Mr. Hacker "or done anything out of the way to him" (Tr. 274).
On cross-examination, Mr. Middleton stated that Mr. Brooks
called him at the beginning of the shift on the morning of
July 26, 1988, and informed him that he needed to have someone
else watch the belt head because Mr. Hacker claimed that he hurt
his back. Mr. Middleton confirmed that during his 9 or 10 months

2258

of employment, Mr. Hacker had the same job and could have ridden
the belt to his work station or crawled in for a distance of
3,500 feet to his work station. He stated that the belt head
area where Mr. Hacker was assigned was at the end of the number 1
belt line, and that this belt was the only permissible belt which
could be ridden (Tr. 278).
Mr. Middleton stated that Mr. Hacker had previously worked
for him for 5 months before he quit, and that after returning, he
worked for an additional 4 or 5 months. He stated that
Mr. Hacker did his work "most of the time," but that he complained about his difficulty in loading the belt and did not want
to "muck the belt line." Mr. Middleton stated that Mr. Hacker
required assistance when making belt splices, and that he
assigned Mr. Brooks to help him. When asked if Mr. Hacker ever
complained about rock, Mr. Middleton responded "he didn't have to
complain about it. All he had to do was tell us if he saw a
loose piece of rock and we would go in there and take it down"
(Tr. 279). Mr. Middleton stated further that "I don't think
there was a man at the mine that liked him. Or liked to work
with him or around him," including his brother-in-law John
Brooks, who Mr. Middleton stated tried to talk him out of
rehiring Mr. Hacker after he had quit his previous job at the
mine (Tr. 281).
Mr. Middleton confirmed that he also received a violation
for the water dilute system on the belt head that Mr. Hacker was
responsible for, and he explained that the safeguard required
additional shoveling of a crawl space to be used in the event the
pull cords were not working .. He confirmed that there were times
when the cords were not working, but that they were always
repaired when they broke down (Tr. 285).
Mr. Middleton could not recall the date Mr. Hacker called
him, but confirmed that when he called approximately a month
after he last worked, that was the first time he had spoken with
him about the matter (Tr. 285). Mr. Middleton explained further
as follows at (Tr. 285-286):
Q. And you had told him at that time that as far as
you was concerned he had quit and that he didn't have
his job?

A. Well, that's what I had thought he had done. Like
he done the first time. And I also told him, he
started raving about his compensation.
I told him, if
he had just told me that he got hurt the day before he
left work, we would have filled out an accident report
on him, regardless whether he got hurt or not and he
could have been drawing his compensation.

2259

Mr. Middleton stated that the number 1 belt line is a legal
belt line and has been a designated mantrip with pull cords since
the mine opened. He also stated that the MSHA inspector rides
the same belt, and no inspector has ever advised him that the
belt may not be ridden (Tr. 288). He stated that Mr. Hacker has
never complained to him about any safety violations, and whenever
he said anything to him about loose rock, "we always tried to
take it down" (Tr. 289). Mr. Middleton also stated that when
Mr. Hacker complained about dusty conditions at his belt head, he
was permitted to leave the mine, and the belt would be shutdown
at the face, ahd he would then return to his work station if he
wanted to come back and would ride the belt back into the mine
(Tr. 289). Mr. Middleton stated that his work rules require an
employee to inform him about any injury before he leaves the
mine, and he explained as follows at (Tr. 291-292):

Q. The day Mr. Hacker left in July of 1988 were you
mad at him about anything?
A.

No, I wasn 1 t.

Q.

Okay.

A.
I thought everything was all right.
I mean, I
didn't know he was • • • . I didn't know that he was
mad at us or whatever.
Q. And the first conversation you had with him, after
he left the mines on July 25th of 1988 was August the,
around August 16th, of 1988, almost a month later?

A.

Yes.

I guess, I don't know what date it was.

Q.
If he'd came back to work on the 26th or 27th,
would his job been available, of July?

A. Well, if he'd just told me that he'd got hurt, you
know.

Q. What would you have done if he had told you he got
hurt?
A.
I'd of filled out an accident report. He could
have been drawing his comp. or whatever. Just like I
told him on the phone when he called.
Q. What's your normal procedure when you do have a man
get hurt? What do you do?

A. Well, I usually, we, you know, we've got signs up
to report all injuries and accidents before you leave
the work. You know, before leaving work.

2260

And, at (Tr. 296-297):
JUDGE KOUTRAS: So, you're saying that had Mr. Hacker
told you before leaving the mine that afternoon that,
you know, I fell off the belt and hurt my back and
might not be back to work tomorrow, that he would
probably then have said, yeah, well, we'll s~e how it
is or • . .
THE WITNESS: No, there wouldn't been any probably
about it. I would have filled an accident report out
on him, then, and we would have turned it in so he
could have got his benefits.
JUDGE KOUTRAS: Well, an accident report, a reportable
accident has to result in some injury, doesn't it?
THE WITNESS: Yes. But I would have went ahead and
filled out an accident report.
JUDGE KOUTRAS: You ever had occasion to do that in the
past? Fill an accident report on employees that are
knocked about or get hurt?
THE WITNESS:

Yes, we have.

Mr. Middleton believed that Mr. Hacker concocted his claim
of injury, and that Mr. Hacker had previously advised him that he
had sued someone over a back injury resulting from an· automobile
accident (Tr.. 295) . Mr. Middleton also believed that Mr. Hacker
quit his job because he was afraid to work in the mine (Tr. 298).
Mr. Mid91eton denied that anyone ever required Mr. Hacker to
ride the belt into the mine, and that Mr. Hacker had the option
of riding the belt or crawling into the mine to reach his work
station. He confirmed that there is no prohibition against
anyone stopping the belt when its empty, and that he has
instructed Mr. Hacker not to turn off the belt if it is loaded
except in an emergency (Tr. 300). Mr. Middleton denied any
knowledge of Inspector Myers having any qifficulty with the belt
or getting someone to shut it down, and that this never came to
his attention. He also denied ever being cited for his failure
to cooperate with an inspector or for obstructing any inspection
(Tr. 303) .
Darrell Middleton testified that he is the president and
part owner of the company, but that his brother oversees the
operation of the Black Streak Mine "mostly on his own" (Tr. 310).
Mr. Middleton stated that he was familiar with the number 1 belt,
and he confirmed that it is a designated mantrip which the belt
headman may use to reach his work station. He stated that the

2261

belt headman could also crawl to his work station, "or go around
to the other side of the mountain and ride the scoop and crawl
the other belt" (Tr. 311). Mr. Middleton stated that the mine is
preshifted by his brother, and that all reports are kept at the
mine office located on the "Flatland side" of the mine (Tr. 312).
Mr. Middleton stated that he was not present at the mine on
July 25, 1988, when Mr. Hacker was reportedly injured, and that
during an inquiry into the matter, he spoke with Mr. Stapleton,
Mr. LeMasters, and Mr. Brooks, and when they could not confirm
that Mr. Hacker had been injured, no accident or compensation
report was made (Tr. 313). Mr. Middleton denied that he ever
threatened any mine inspector, and that apart from a dust violation on the number 1 belt, he was unaware of any other violations
on the number 1 belt. He confirmed that training is provided for
all of the miners, and he believed that Mr. Hacker filed his
discrimination complaint "when we objected to him being on compensation" (Tr. 314). He confirmed that the company has never
had any prior discrimination claims filed against it (Tr. 314).
On cross-examination, Mr. Middleton confirmed that he spoke
with Mr. Hacker's wife a week or two after July 25, 1988, and
that she initiated the call. He stated that he spoke with her
two or three times and that she wanted to know about compensation
for her husband. Mr. Middleton stated that the only time he
spoke with Mr. Hacker was when he called to inquire how he would
respond to his discrimination claim, and that he never spoke with
him about his compensation. Mr. Middleton confirmed that he
discussed Mrs. Hacker's calls with his brother, and after speaking with the other individuals who were present on July 25, 1988,
when Mr. Hac~er claimed he was injured, they decided not to fill
out any accident report in order to protect their compensation so
that their costs would not be increased (Tr. 316).
Mr. Middleton questioned the reason for Mr. Hacker's
attempting to ride the belt back out of the mine knowing the
existence of the rock which he encountered while riding the belt
in to work, and stated that he and his brother concluded that
Mr. Hacker had ridden the belt out of the mine so that he could
claim that he was hurt. Mr. Middleton believed that Mr. Hacker
should have called the outside man to shutdown the belt and have
the rock taken down before attempting to ride the belt out of the
mine (Tr. 318). Mr. Middleton stated that he later learned of
Mr. Hacker's pre-existing back injuries, and that the respondent
decided- to settle his compensation claim rather than to pay a
lawyer to dispute it (Tr. 320).
Mr. Brooks was recalled by the court, and he stated that
when he informed Windell Middleton about Mr. Hacker's claimed
back injury, he did not believe that he told him that Mr. Hacker
would claim that he was hurt, but told him that Mr. Hacker said

2262

that he had hurt himself, and that he (Brooks) had no knowledge
that Mr. Hacker had been injured (Tr. 332-333).
Mr. Hacker was recalled by the court, and he confirmed that
the only thing he told Mr. LeMasters and Mr. Stapleton was that
"I took a pretty good jolt," and that he did not tell them that
he had jumped off the belt to avoid the rock (Tr. 336).
Mr. Hacker confirmed that he had a pre-existing back injury which
occurred in January, 1982, when he was in a truck accident and
that he had a fusion done on his lower back. Mr. Hacker was not
sure whether he disclosed this injury on his application form
when he applied for work with the respondent, but stated .. that he
informed the Middleton's about his prior surgery and that they
knew about it (Tr. 338).
Mr. Hacker explained that he took the doctor's slip to
Mr. Brooks so that he could take it to work with him, and he
confirmed that he did not call the mine or Mr. Middleton the day
following his injury, and that his wife did the calling (Tr.
340-341).
Findings and Conclusions
In order to establish a prima facie case of discrimination
under section 105(c) of the Mine Act, a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Fasula v. Consolidation Coal Company,
2 FMSHRC 2768 (1980), rev'd on other grounds sub nom.·
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal
Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v.
Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511
(November 1981), rev'd on other grounds sub nom.
Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator
may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no way
motivated by protected activity.
If an operator cannot rebut the
prima facie case in this manner it may nevertheless affirmatively
defend by proving that (1) it was also motivated by the miner's
unprotected activities alone. The operator bears the burden of
proof with regard to the affirmative defense. Haro v. Magma
Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden of
persuasion does not shift from the complainant. Robinette,
supra. See al~o Baich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983);
and Donovan v. Stafford Construction Company, No. 83-1566 D.C.
Cir. (April 20, 1984) (specifically-approving the Commission's
Fasula-Robinette test). See also NLRB v. Transportation
Management Corporation,
U.S.
, 76 L.ed.2d 667 (1983),
where the Supreme Court approved the NLRB's virtually identical

2263

analysis for discrimination cases arising under the National
Labor Relations Act.
Direct evidence of actual discriminatory motive is rare.
Short of such evidence, illegal motive may be established if the
facts support a reasonable inference of discriminatory intent.
Secretary on behalf of Chacon v. Phelps Dodge corp., 3 FMSHRC
2508, 2510-11 (November 1981), rev'd on other grounds sub nom.
Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983);
Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984).
As the Eight Circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in
NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir.
1965):
It would indeed be the unusual case in which the
link between the discharge and the [protected] activity
could be supplied exclusively by direct evidence.
Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial
evidence.
Furthermore, in analyzing the evidence,
circumstantial or direct, the [NLRB] is free to draw
any reasonable inferences.
Circumstantial indicia of discriminatory intent by a mine
operator against a complaining miner include the following:
knowledge by the operator of the miner's protected activities;
hostility towards the miner because of his protected activity;
coincidence in time between the protected activity and the
adverse action complained of; and disparate treatment of the
complaining miner by the operator.
Mr. Hacker's Protected Activity
It is clear that Mr. Hacker enjoys a statutory right to
voice his concern about safety matters or to make safety complaints to a mine inspector without fear of retribution or
harassment by management. Management is prohibited from interfering with such activities and may not harass, intimidate, or
otherwise impede a miner's participation in these kinds of
activities. Secretary of Labor ex rel. Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on other grounds
sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211
(3d Cir. 1981), and Secretary of Labor ex rel. Robinette v.
United Castle Coal Co., 3 FMSHRC 803 (April 1981).
Baker v.
Interior Board of Mine Operations Appeals, 595 F.2d ~46 (D.C.
Cir. 1978); Chacon, supra.
In his posthearing brief, Mr. Hacker's counsel asserts that
the respondent discharged Mr. Hacker after he was injured on
July 25, 1988, and that the respondent's refusal to hire him back
was based on the fact that approximately a week prior to his

2264

injury, Mr. Hacker spoke to an MSHA inspector who was at the mine
conducting an inspection and complained to the inspector about
the working conditions and safety at the mine. Counsel argues
that the respondent retaliated against Mr. Hacker for complaining
to the inspector by not hiring him back.
In response to the respondent's contention that Mr. Hacker
failed to return to work on July 26, 1988, after his purported
injury, and failed to notify mine management that he was injured
and would not be returning to work, counsel asserts that
Mr. Hacker produced medical evidence to support his injury, and
that the evidence establishes that Mr. Brooks informed management
that Mr. Hacker would not be returning to work on July 26, 1988,
because he was complaining to have been injured and that the wife
of one of the co-owners of the mine gave her approval for the
hospital treatment of Mr. Hacker's injury. Counsel concludes
that this supports a conclusion that the respondent was aware
that Mr. Hacker had been injured and would not be returning to
work because of those injuries, and that its denials to the
contrary were made in order to avoid the fact that Mr. Hacker was
discharged for complaining to the inspector.
The record in this case establishes that Mr. Hacker failed
to call Inspector Myers to testify in this case, and also failed
to obtain his pretrial deposition.
I take particular note of the
fact that at the time Mr. Hacker filed his complaints with MSHA
and with the Commission, he did not allege that he was discharged
because of any protected activities. The thrust of both complaints focused on the failure by the respondent to acknowledge
Mr. Hacker's purported injury and to agree to pay him· workmen's
compensation.. Mr. Hacker's contention that the respondent fired
him, or refused to rehire him, was raised during the course of
the hearing when Mr. Hacker first suggested that the respondent
discharged him because he informed Inspector Myers that he rode
the belt into the mine to his work station, and that the belt
stop cord was inoperable. Mr. Hacker asserted that the inspector
issued several violations on the belt, including violations for
riding the belt and the inoperative cord, and that the inspector
also accused him of impeding his inspection for not shutting the
belt down to facilitate the inspection. Mr. Hacker suggested
further that the respondent was aware of his conversation with
the inspector and discharged him because his complaints to the
inspector resulted in violations being issued to the respondent
because of the illegal belt conditions revealed by Mr. Hacker to
the inspector.
I find no credible or probative evidence in this case to
establish that Mr. Hacker's conversation with the inspector
amounted to a safety complaint. The inspector did not testify,
and there were no witnesses to the conversation. Mr. Hacker
conceded that he did not inform the Middletons about his conversation with the inspector, and there is no evidence that the

2265

inspector ever spoke to management about the encounter with
Mr. Hacker.
Further, Mr. Hacker admitted that he had never filed
any safety complaints with MSHA or management, had never reported
any safety violations to MSHA, and had never spoken to any
inspectors other than Mr. Myers.
Mr. Hacker testified that his conversation, or "chit chat"
with Mr. Myers was about the belt "in general," and that when he
informed the inspector that he rode the belt into the mine, the
inspector informed him that he should not do this because of the
lack of clearance. Mr. Hacker also alluded to the fact that the
inspector was angry at him for not shutting the belt down so that
it could be inspected. Mr. Hacker believed that the inspector
issued a violation for interfering with his inspection, and also
issued some violations for certain belt conditions. Mr. Hacker
also believed that riding the belt was illegal, and he contended
that the belt stop cords had never been operational during the
entire time that he worked at the mine.
Windell Middleton, who was Mr. Hacker's immediate supervisor, denied any knowledge of Mr. Hacker's conversation with the
inspector, and there is no evidence that his brother Darrell was
aware of any such conversation. As the mine superintendent,
Windell Middleton exercised day-to-day supervision of the mining
activities,· and he confirmed that the No. 1 belt in question was
a designated mantrip, and that the belt was equipped with operating stop cords. Mr. Middleton acknowledged that Inspector
Myers issued some citations for certain belt conditions, but
denied being cited for impeding any inspections or because of
anyone riding the belt illegally.
Mr. Hacker's counsel submitted copies of all citations
issued by MSHA inspectors at the mine from October, 1987, through
July 25, 1988. Included in these submissions are several section
104(a) citations issued by Inspector Myers on July 13, and 18,
1988. Some of the citations were issued on the Nos. 2, 3, and 4
belts, and two were issued on the No. 1 belt because of the lack
of water sprays and a slippage switch at the belt conveyor drive.
I find no indication that any of the citations were issued
because of the respondent's purported interference with the
inspector's inspection, or because of the respondent's purported
illegal use of the belt as a mantrip.
Further, in each instance,
Inspector Myers noted that the mine was not in production during
his inspections of July 13 and 18, 1988, and he extended the
citations. All of the citations were ultimately terminated after
the respondent abated the conditions.
Mr. Hacker's brother-in-law, John Brooks, confirmed that he
was not aware of any pull cord violations, or any violations by
Inspector Myers because of the lack of cooper~tion by the respondent during an inspection. Mr. Brooks confirmed that Mr. Hacker
told him he did not like riding the belt under the rock, but that

2266

he was unaware of any safety complaints made by Mr. Hacker to
management or anyone else.
Mr. Brooks stated that Mr. Hacker never complained to him
about any safety violations, never indicated to him that management did not care about safety, and that Mr. Hacker got along
well with management.
Miners Jimmy Stapleton and Mark LeMasters, testified that
they were unaware· of any "illegal" activities at the mine.
Mr. Stapleton was not aware of any problems on the belt or with
Inspector Myers. He believed that mine management were "good
people to work for" and he has never known management to assign
miners to work in unsafe conditions. Mr. LeMasters stated that
he has never known management to harass Mr. Hacker or "do anything out of the way" to him.
After careful consideration of all of the testimony and
evidence adduced in this case, I cannot conclude that Mr. Hacker
filed any safety complaint with Inspector Myers. Even assuming
that one could conclude that Mr. Hacker's conversation with the
inspector amounted to a safety complaint, I find no credible or
probative evidence to establish, or even suggest, that the
Middletons were aware of any such conversation, or that the
citations issued by Mr. Myers resulted from any safety complaints
lodged by Mr. Hacker. According to the MSHA "type of inspection"
code found in item 19 on the face of the citations (CBA),
Mr. Myers was conducting a regular electrical inspection of the
entire mine, and I can only conclude on the basis of the evidence
presented in this case that he issued the citations in the normal
and routine course of his inspections after observing the cited
conditions independent of any conversations that he may have had
with Mr. Hacker.
Mr. Hacker testified that after speaking with the inspector,
his pay and job status were not affected, and that the respondent
displayed no anger towards him. He also agreed that management
never told him that he was being fired, that he got along well
with management, was always paid his wages on time, and that the
Middletons never gave him a "hard time." Mr. Hacker confirmed
that Windell Middleton hired him back after he had previously
quit his job at the mine.
I find no evidence that the Middletons
ever harassed, threatened, or intimidated Mr. Hacker because of
any safety matters or protected activity, or that they treated
him any differently from other employees. Mr. Hacker conceded
that the Middletons "were good men to work with and work for"
(Tr.

66).

On the basis of all of the evidence and testimony adduced in
this case, I agree with the respondent's contention that the
dispute in this case between Mr. Hacker and the Middleton
brothers arose as a result of the respondent's challenge to

2267

Mr. Hacker's.workmen's compensation claim in connection with his
purported injury of July 25, 1988. Mr. Hacker admitted as much
several times during the course of his testimony, and his consistent claim prior to the hearing focused on the respondent's
refusal to acknowledge that his injury was job related and that
he was entitled to any compensation for his purported injury.
The record reflects that the respondent settled the compensation
claim on the day before the hearing in this case (see copy of
agreement award submitted by Mr. Hacker's counsel). Mr. Hacker
testified that although he is able to work, he did not look for
any work after his injury because of his pending compensation
claim.
This raises a strong inference that Mr. Hacker did not
want to return to work for fear of jeopardizing his workmen's
compensation claim.
The record establishes that Mr. Hacker's last day of work
was July 25, 1988, when he claimed that he injured his back.
Darrell Middleton testified that Mr. Hacker never communicated
with him again until he called to find out how he (Middleton)
would respond to his discrimination complaint. Mr. Middleton
confirmed that he spoke with Mrs. Hacker several times after
July 25, 1988, and that the conversations focused on Mr. Hacker's
compensation claim for his injury. Mrs. Hacker's testimony
reflects that any conversations that she had with the Middleton
brothers were in connection with her husband's claimed injury and
his compensation claim, and she conceded that nothing was ever
said about her husband returning to work at the mine.
As a
matter of fact, Mrs. Hacker's brother, John Brooks, testified
that Mrs. Hacker did not want Mr. Hacker working underground
because of his fear of the belt and the rock. Mr. Brooks confirmed that Mr. Hacker had told him on several prior occasions
that he did not like working underground, and Mrs. Hacker confirmed that her husband always complained about the rock because
he "was not used to coal mining."
Windell Middleton testified that he heard nothing further
from Mr. Hacker concerning his claimed back injury and has never
seen any medical excuse attesting to his claimed injury.
Mr. Middleton confirmed that when Mr. Hacker failed to report for
work after July 25, 1988, he assigned his job duties to
Mr. LeMasters for 4 or 5 days, believing that Mr. Hacker would
contact him and ask for his job back as he had done on a prior
occasion when he quit his job. After waiting for 2 weeks to hear
from Mr. Hacker, Mr. Middleton hired someone else to replace him,
and when Mr. Hacker finally called on the advice of an MSHA
inspector who was looking into his discrimination complaint,
Mr. Middleton informed Mr·. Hacker that he thought he had quit his
job and that someone else had been hired to replace him.
Mr. Hacker admitted that his first contact with Mr. Middleton
about his job came on August 16, 1988, approximately 3 weeks
after he claimed injury, and he conceded that neither Windell or

2268

Darrell Middleton ever said anything to him to indicate that he
had been fired .•
All of the witnesses who were working with Mr. Hacker on the
evening of his claimed back injury were consistent in their
testimony that Mr. Hacker showed no visible physical signs of any
injury, and that he never complained to them about any injury or
the need for any medical attention.
I believe that Windell
Middleton's doubts concerning Mr. Hacker's claimed back injury,
and his reluctance to agree to the workmen's compensation claim,
were based on the information given him by these witnesses, and
the fact that Mr. Hacker failed to promptly and directly communicate with him regarding his asserted injury.
I also believe that
Mr. Middleton's doubts were influenced by the fact that
Mr. Hacker had previously abandoned or quit his job because· of
his fear of underground mining, that he had sued someone in the
past over a back injury received in a traffic accident, and
Mr. Middleton's view that Mr. Hacker was "too lazy to work" and
was looking for a "handout."
Having viewed the Middleton brothers during the course of
their testimony in this case, I find them to be straightforward
and credible individuals.
I find no credible or probative evidence to establish, either directly or indirectly, that the
refusal by Windell Middleton to give Mr. Hacker his job back
after he finally contacted Mr. Middleton was motivated in any way
by Mr. Hacker's conversation or contact with MSHA Inspector
Elijah "Chaulk" Myers, the filing of any complaint with
Mr. Myers, or any other protected activity on the part of
Mr. Hacker.
I find no credible or probative evidence in this case to
establish that Mr. Hacker was either directly or indirectly
discharged by the respondent. To the contrary, I conclude and
find that on the facts here presented, Windell Middleton.had a
reasonable and plausible basis for concluding that Mr. Hacker
voluntarily quit his job as he had done before, and that the
hiring by Mr. Middleton of another individual to replace
Mr. Hacker was not illegal or discriminatory under the Act.
In
short, I conclude and find that Mr. Hacker has failed to make out
a case of discrimination.
ORDER
In view of the foregoing findings and conclusions, and on
the basis of the preponderance of all of the credible and probative evidence.adduced in this case, I conclude and find that the

2269

complainant has failed to establish that the respondent discriminated against him. Accordingly, the complaint IS DISMISSED, and
the complainant's claims for relief ARE DENIED.

~~/ £'~~---_,
·

~~: Kout~

Administrative Law Judge

Distribution:
John c. Carter, Esq., 117 West Central Street, Harlan, KY 40831
(Certified Mail)
Otis Doan, Jr., Esq., 119-A First Street, Harlan, KY 40831
(Certified Mail)
/fb

2270

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

NOV 91989
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
MICHAEL A. CARRANO,
Complainant

Docket No. YORK 89-47-DM
MD 88-79

v.
BLUE CIRCLE ATLANTIC, INC.,
Respondent
DECISION APPROVING SETTLEMENT
This proceeding was brought by the Secretary of Labor in
behalf of Michael A. Carrano, under§ 105(c)(2) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seq, for
certain corrective relief to undo the effects of alleged
discrimination against him, and for a· civil penalty for an
alleged violation of § 105(c) of the Act.
The parties have moved for an order approving a proposed
settlement.
I have considered the representations and
documentation submitted and I conclude that the proferred
settlement i$ consistent with the criteria in§§ 105(c) and
llO(i) of the Act.
ORDER
WHERFORE IT IS ORDERED that:
1.

The motion for settlement is GRANTED.

2. Respondent shall comply with all the terms of the
settlement herein.
3. Respondent shall pay a civil penalty of $400 within 30
days of this Decision.
4. Subject to full compliance with the above, this
proceeding is DISMISSED.

&lit,,;,,, 1-~v~

William Fauver
Administrative Law Judge

2271

Distribution:
Jane S. Brunner, Esq., Office of the Solicitor, U. s. Department
of Labor, 201 Varick Street, New York, NY 10014 (Certified Mail)
Mr. Thomas P. Marnell, Director of Personnel, Mr. Paul w.
Gardner, Labor Rel~tion Safety Manager, Blue Circle Atlantic
Inc., Post Office Box 3, Ravena, NY 12143 (Certified Mail)

iz

2272

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

NOV 13 1989
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
ON BEHALF OF FRED BARTLEY,
Complainant

Docket No. KENT 89-102-DM
Jenkins Quarry

v.
ADAMS STONE CORPORATION,
Respondent
SUPPLEMENTAL DECISION
Appearances:

Before:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Complainant; David Adams, Esq.,
Vice-President, Adams Stone Corporation,
Pikeville, Kentucky, for Respondent.

Judge Broderick

On October 18, 1989, I issued a decision on the merits in
the above case in which I determined that the layoff of Fred
Bartley by Respondent on March 29, 1988, was in violation of
section 105Cc) of the Mine Act.
I ordered that he be paid back
wages from the date of the layoff to the date of his
reinstatement with interest thereon computed in accordance with
the Commission decision in UMWA v. Clinchfield Coal Co., 10
FMSHRC 1493 {1988), as we11--as-other benefits to which he was
entitled and which were withheld during the time of· his layoff.
I directed that Res~ondent be given credit for the amount paid as
back wages following the arbitrator's decision which reinstated
him to his position as crusher operator.
I directed the parties
to attempt to agree on the amount due under my order, failing
which, I directed the Secretary to submit a statement, within 20
days of the date of the decision, of the amount due. Respondent
was given 10 days thereafter to reply. On October 23, 1989, the
Secretary filed a statement of the amount claimed as back wages.
Respondent has not replied to the statement.
I have considered the Secretary's statement, and the record
in this proceeding, and on the bases thereof, IT IS ORDERED:
1. The findings, conclusions and orders of the decision
issued October 18, 1989, are REAFFIRMED.

2273

2. Respondent shall, within 30 days of the date of this
Supplementary Decision, pay to Complainant the sum of $4,770.45
representing back wages still owing, vacation pay still owing and
interest to October 16, 1989. From October 16, 1989 until the
total amount is paid, Respondent shall pay 1.10 per day interest.
3. Respondent shall, within 30 days of the date of this
Supplementary Decision pay to the Secretary a civil penalty in
the amount of £.1000 for the violation of section 105(c) of the
Act.

4.

This decision is FINAL •

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,

.James A. Broderick

Administrative Law Judge
Distribution:
Thoma3 A. Grooms, Esq., U.S. Department of Labo.-r, Office of the
Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Mr. David H. Adams, Vice President, Adams Stone Corporation, P.O.
Box 2320, Pikeville, KY 41501 (Certified Mail)
slk

2274

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

22041

NOV 13 1989
SECRE'rARY OF LABOR,
MINE SAFE~Y AND HEALTH
ADMINISTRA'rION, (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 89-152
A.C. No. 36-00840-03681

v.
Cambria Slope No. 33
BE·rH ENERGY MINES, INC.,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

Before:

Paul.D. Inglesby, Esq., U.S. Department of Labor,
Office of the Solicitor, Philadelphia, Pennsylvania,
for Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll, Pittsburgh,
Pennsylvania for Respondent.

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety
and Health Act of 1977 (the Act). At hearing Petitioner has
filed a motion to approve a settlement agreement and to
dismiss the case. A reduction in penalty from $3,147 to $297
was proposed.
I have considered the representations and
documentation submitted in this case, and I conclude that the
proffered settlement is appropriate under the criteria set
forth in Section llO(i} of the Act.
WHEREFORE, the motion for approval of se
GRANTED, and it is ORDERED that Respondent pa
$297 within 30 days of this order.

Gary Me ick.
Adminis ative Law Judge
(703) 7--1 -6261

2275

of

Distribution:
Paul D. Inglesby, Esq., U.S. Department of Labor, Office of
the Solicitor, Room 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, 600 Grant Street,
58th Floor, Pittaburgh, PA 15219 (Certified Mail)
nt

2276

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

22041

NOV 13 1989
SECRETARY OF LABOR,
MINE SA~ETY AND HEALTH
ADMINISTRATION, CMSHA),
on behalf of
DAN NELSON,
RONALD SONEE'F,
TOMMY BOYD,
STAt~LEY ODOM,
CARROLL JOHNSON,
Complainants
and

DISCRIMINATION PROCEEDING
Docket No. SE 89-63-D
Case No. OTC&I-CD-88-01
Mine No. 7

UNITED MINE WORKERS OF AMERICA:
Intervenor

v.
JIM WALTER RESOURCES, INC.,
Respondent
DECISION
AND
ORDER OF15ISMISSAL
Appearances:

Before:

Colleen Geraghty, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Complainants; ·
Patrick K. Nakamura, Esq., Longshore, Nakamura,
and Quinn; Birmingham, Alabama, for United Mine
Worker of America;
David M. Smith, Esq., Maynard, Cooper, Frierson
and Gale; Birmingham, Alabama, for Petitioner.

Judge MelicK

Complainant requests approval to withdraw her Complaint in
the captioned case on the grounds that the parties have reached
a mutually agreeable settlement of the underl~ing issue. Under
the circumstances herein, permission to withdoaw is granted.
29 C.F.R. § 2700.11. This crse
therefore 1ismissed.

i(
!'-- ,, '.(t lJ.-, "--, ' . ,,f
. k

Gary Me ic
I

Adminis~rative

c703) 1 ~6-6261

1

2277

I:

··

./I_,(__~
·

/
Law
Judge

If

l

\'

Distribution:
Colleen Geraghty, Esq., Office of the Solicitor, Department of
Labor, 4015 Wilson Boulevard, 4th F~oor, ALlington, VA 22203
{Certified Mail)
Patrick K. Nakamura, Esq., 2101 City Federal Building,
Birmingham, AL 35203 {Certified Mail)
David M. Smith, Esq., Maynard, Cooper, Frierson & Gale, P.C.,
12th Floor Watts Bldg., Birmingham, AL 35203 {Cercified Mail)
nt

2278

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

22041

NOV 15 1989
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 89-52
A.C. No. 46-01318-03850

v.
Robinson Run No. 95 Mine
CONSOLIDATION COAL COMPANY,
Respondent
DF.CISION
Appearances:

Ronald Gurka, Esq., Office of the Solicitor,
u. s. Department of Labor, Arlington, Virginia, for
the Secretary;
Michael R. Peelish, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for Respondent.

Beforei

Judge Weisberger

Statement of the Case
On December 30, 1988, the Secretary (Petitioner> filed a
petition for assessment of civil penalty, alleging a violation by
the Operator (Respondent) of 30 C.F.R. § 75.1725(a). Respondent
filed an Answer on January 30, 1989. On April 7, 1989, this case
was reassigned to the undersigned and pursuant to notice, the
case was heard on August 9 - 10, 1989, in Morgantown, West
Virginia.
Bretzel W. Allen and Stephen G. Sawyer testified for
Petitioner.
Bernard W. Koleck, Kenny Henline, and Larry D. Patts
testified for Respondent. Post Hearing Briefs were filed by
Respondent and Petitioner, respectively, on October 16, and 18,
1989.
St!pulations
1. The Parties have stipulated that Consolidation Coal
Company is a large coal mine operator.
2. The Parties have stipulated that Robinson Run No. 95
Mine is a large mine.

2279

3. The Parties have stipulated that the history of previous
violations reveals a total of 997 assessed violations and
1,016 inspection days in a 24-month period preceding the order at
issue in this case for a ratio of .98.violations per inspection
day.
4. Parties stipulate that assessment of a civil penalty in
this case would not affect Consolidation Coal Company's ability
to continue in business.
5. The Parties stipulate that a withdrawal order pursuant
to section 104Cd) of the Mine Act had been issued within the
90-day period preceding the issuance of the order at issue in
this case.
~ind~ngs

of Fact and Conclusions of Law

On August 29~ 1988, Bretzel w. Allen, an MSHA Inspector,
observed "excessive wear" on both ends of a wheel axle on a belt
tension unit.
He issued a section 104(2)(d) Order (Order
No. 3117715) alleging a violation of 30 C.F.R. § 75.1725(a).
The belt tension unit in question has two axles, each of
which has two wheels, which ride on tracks or I beams. The unit
is attached to the belt line and controls the pressure on the
belt line. The tension on the belt line is adjusted by an
hydraulic jack which is attached to the belt tension unit by a
tension rope. This rope allows the tension unit to ride back and
forth on the I beams, thus adjusting the tension on the belt line
to which it is connected. The belt tension unit is equipped with
vertical guide rollers to prevent the wheels and carriage from
moving in a lateral direction.~/
Section 75.1752(a), in essence, requires that mobile and
stationary equipment and machinery shall be maintained in "safe"
operating condition and if, "in unsafe condition," the equipment
shall be removed from service immediately. The axle in question
had been, according to the uncontradicted testimony of Allen,
worn at both ends. At one end CBxhibit J-3, J-5) it had been
worn from an original diameter of 30.5 millimeters to a diameter
of 21 millimeters. Allen opined that the axle was unsafe due to
the amount of wear, and its color observed by him to be a shiny
silver to deep blue, which indicated that it was over-heated and

17"

Petitioner's evidence is insuf fLcient to establish that the
subject unit did not have such rollers as depicted in Joint
~xhibit 4, Section E-B.
Allen's statement, that he did not
recall seeing these vertical guide rollers when he issued the
Order in question, does not negate their existence.

2280

that its temper h.:id changed.~/ According to Allen, the amount of
wear on the axle .:ind the color, which indicated that the tem9er had
changed, led him to conclude that the a.1Cle could fail at any tiine.
Respondent's witnesses did not ~eny the amount of wear on
the axle, as testified to by ~llen, but opined that it nonetheless was safe.
Larry D. Patts, Respondent's Assistant Vice
President in charge of safety, opined that the axle, made out of
1020 steel, is ductile, and that accordingly, with continued
we.:ir, •.vo._1ld bend before it would break.
Not much weight was
acco~ded his opinion .as he indicated on cross-examination that
ductile material can fail in a brittle Eashion.
Koleck presented mathematical calculations as to the maximal
Qrincipal stress (or ~ctaal applied load) to which the axle in
question is subjected. He indicated that this figure takes into
account shear stress, which is based on the weight of the cart
and tension of the -belt, and the bending stress, which is based
on the weight of the carriage and the Eorce of the belt. By
dividing the minimum strength of the material of the axle (as set
Eorth by manufacturers of the steel) by the maximal principal
stress, he arrived at a safety Eactor of 1.27. Essentially,
according to Koleck, a safety factor of 1.27 indicates that the
aKle was safe, as bendin,~ would occur if the safety factor was
less than 1.
Petitioner presented a Le'outtal witness, Stephen G. Sawyer,
who did not contradict Koleck's calculations. However, Sawyer
indicated that Koleck's calculations did not take into account
the effect of fatigue, i.~., the stress on the axle caused by
repeated loading and unloading the belt, which would be between
40 and 60 percent of the manufacturer's figure for tensile
strength.~/
2/ Although the axle was covered by a wheel and washer, that
9rotruded from the wheel approximately a quarter of an inch, and
extended from the a~le a?proximately l inch, Allen indicated that
he observed the the color of the axle which he indicated was not
entirely covered by the wheel.
In this regard, Bernard w. Koleck,
Respondent'3 S-=nior 'Maintenance Engineer, indicated that some wear
could be seen without taking off the wheel.
Further, no witnesses
contradicted Allen's description of the color of the axle at the
time of the citation.
I thus accept his testi1nony.
~/

Although on cross-examination it was elicited that when calculated., 60 percent of tensile strength a9proxiiM.tes the Eig'-lre
that Koleck arrived at Eor ma~imum principle stress.
I can not
conclude that Koleck too~ into account the fatigue or yield
stress, as that is not explicitly referred to in his t~stimony or
in his calculations (Respondent's Exhibit R-1).
Nor was Koleck
recalled to rebut Sawyer's tes ti:nony, al though Respondent was
given the opportunity to call rebuttal witnesses.

2281

Sawyer opined that, in essence, should the axle fail,
fatigue strength would be the governing mode, not yielding
strength, and it would fail from fatigue in a sudden and brittle
fashion.
Also, Sawyer explained that, due to galling (see the
ridges and bumpa on Exhibit J-5), caused by two metals rubbi.ng
together, the fatigue 3trength can be reduced by up to 90 percent.
According to Sawyer, the effect of the abrupt change in the
diameter of the axle due to its wear (see the parallel lines in
Exhibit J-5), was ignored by Koleck.
Although this change was
co•npensa ted for by Koleck, the effect of the c"hange "is very
c r. i tical" in estimating fatigue strength (Tr. 3 99) • Sawyer also
indicated that, according to current prudent engineering
practice. a safety factor should not be less than 1.5.
Although Patts and Koleck are engineers, and the former has a
Bachelor's degree in metallurgy and has expertise in failure
analysis, I find Sawyer, who is a 9rofessional engineer, to be
the .no re t'el i able ex9ert witness.
In this connection, I place
considerable weight on Sawyer's educational background which
includes Masters and Doctorate Degrees, with a specialty in
fracture mechanics.
I found his testimony to be well reasoned.
For these reasons I accept his testimony.
The Order in question alleges a violation herein of 30 C.F.R.
in essence, requires that equipment be
maintained in a safe condition, and that unsafe equipment shall
be immediately removed. Webster's Third New International
Dictionary, 1986 Edition, (Webster's) defines "safe" as "l.
free Erom da1nage, danger, or injury, secure . • • . " Webster's
defines "free from" as "(a) lacking; without." "Danger" is
defined in Webster's as "3. liability to injury, pain, or loss:
PERIL, RISK • . . . " I find that the axle in question had worn
from a diameter of 38.5 to 31 millimeter (Joint Exhibit 3).
Considering this degree of wear, as well as the effect of
galling, the abrupt change in the axle diameter caused by the
wear, as well as the impact of Eatigue stress, as set forth in
Sawyer's testimony that I accept, I find that there was a risk of
the axle failing.
As such, a9plying the common uses of the the
term "safe," as defined in Webster's, infra, I conclude that the
axle was not safe. Thus, I find that Respondent herein violated
section 75.1725(a), supra.
§ 75.1725(a), which,

II.
According to Allen, the axle had overheated as evidenced by
its blue color, and was "a definite ignition source for coal dust
(Tr. 61). Essentially he indicated that there was a
"oossibility" (Tr. 61) of a fire, as it is normal ta have some
c~al du.st an carciage '.)arts and the coal dust on the carriage was
not wet. He indicated that should a fire occur, it would be

2282

dangerous to the miner ~ho normally works approximately 22 feet
Erom the carriage. He also indicated that if the ~xle would
break, it would cause a slldden stopping of the belt -;.vhich would
callse the belt to break. According to Allen, in that event a
~erson could be injured, from the whipping action of the belt or
from mat.erial flying off the belt.
In such an event a person
walking alongside the belt, such as a preshift examiner or a belt
cleaner, could be injured seriously or killed.
In essence, Allen
opined that in the event of the axle breaking, the belt would
lockup.
i\ccording to A.llen, the excessive wear on the top of the
axle, which he observed, indicates that pressure was being
ri.p9lied in an upward fashion.
Thus, he indicated that if the
axle would break, the carriage would be lifted upward.
Allen
indicated that he was "sure" that if the axle would break, the
carriage would lockup (Tr. 149).
In essence, according to Allen,
if the rollers and belt locked up, it would "definitely" break
the belt (Tr. 150). He explained that this would occur based on
the fact that the belt was "relatively large, long, heavy," and
was d.riven by two 250 horsepower motors.
He also stated that if
the axle would break, the carriage could drop, as it would be
supported by only one axle at that point, and it could get wedged
in the broken axle so as to cause the belt to lockup.
He also
stated that if the axle would break, a wheel could get stuck
between two frames, also causing the belt to lockup.
He opined
that at a minimum, in the event of an axle breaking, thece would
be friction between two pieces of metal, and that it would be
impossible for the belt to operate. He indicated, essentially,
that in the event of a lockup, extra stress or tension would be
created on the belt, which could cause the motor to overload,
creating heat which could create a fire hazard.
In essence, he opined that with additional wear the axle
would break, and not bend.
He said that in the event that it
would bend, it would apply more tension" to the cal'.'riage, which
could possibly cause the system to overload allowing the carriage
to loosen the belt, which would then slip into dl'.'ive, creating
heat which could create a fire hazard.
The record does not indicate that the testi:nony of Allen,
with regard to the likelihood of a hazard occurring as a consequence of the worn axle, was b::ised upon either his observation or
inveatigation oE incidences where similar ~xles have failed.
Indeed he indicated on cross-examination that he did not know of
'.:l.ny situation whe.re a brok:=n axle ha.s lead to a belt being broken.
In ~valuatin9 the likelihood as to whether there was a rea.sonable
li~elihood of the worn a~le contributing to the hazard of an
injury, I relied more on the opinions of the engineers who testified, d;.ie to their expertise based on their ed11c,1.tional
~ackground and work experience.
Joint Exhibit 4, as explained by Respondent's witnesses,
indicates that the carriage wheels of the tension unit rolled on
I be~ms, and that movement of the \'/heel upward ::ind downward was

2283

limited by a frame, sh~ped as a reverse C, and whose lower horizontal member over-lapped the lip of the I beam.
Accordingly,
should the axle break, due to excessive wear, as explained by
Respondent's witnesses, downward movement of the axle and wheel
would be limited by a maximum of 5/8 of an inch, which is the
distance the diagonally opposite axle and wheel would rise, until
it would be caught by the upper horizontal member of the overlapping frame.~/
Koleck opined that if the axle would bend and not break,
pressure would force the wheel upward to rub against the frame,
but would not have any effect upon the operation of the carriage.
Patts indicated that in such a situation, there would be an
increase in friction which would "slightly" effect its
efficiency, "but not the operation" (Tr. 345) •. In contrast,
Allen opined that with bending, there would be friction of such a
degree as to possibly create fire due to the presence of dust.
However, his testimony did not establish the amount of such dust,
and specifically its precise location in relation to the wheel
and axle.
Also, although the testimony of Allen was to the
effect that the wear on the axle occurred in the area facing
down, which would indicate that the axle was subject to pressure
from above, all other expert witnesses, including Petitioner's
expert Sawyer, indicated that the axle, while in normal
operation, is subject to an upward pressure.
Due to their
expertise, and well-reasoned opinions, I accept their testimony
in this regard. Thus, if the axle would bend, it would be pushed
upward against the underside of the frame. ~he record does not
establish specifically that coal dust
!/~sawyer-opined that the carriage could possibly go higher than

5/8 of an inch if the overlap would be compromised by the
movement of other parts iA the system or other conditions.
However, Sawyer indicated that he did not make a close inspection
of belt tension units. He condeded that, with regard to "how the
components work and shift together," he does not know the tension
unit as well as Patts, Koleck or Henline (Tr. 402). Thus, his
opinion with regard to the functioning of the unit is not
accorded sufficient weight to offset the testimony of
Respondent's witnesses.
Similarly, the effect of the I beam in preventing further
movement of the carriage, depends upon the distance the frame
overlaps the I beam. Patts indic~ted on cross-examination that
this distance is "approximately" 1 1/2 to 2 inch (Tr. 347>., and
guessed that the minimum distance may be 1/2 inch. I find that
there is insufficient evidence to conclude that there was a
likelihood, in the event of the axle breaking, of the amount of
the overlap being as small as a 1/2 inch.
Also, there is
insufficient evidence to establish that a 1/2 inch overlap would
not suffice to capture the frame and prevent its further
movement.

2284

was present in that area. Also, I find it significant that, as
established by the uncontradicted testimony of Kenny Henline,
Respondent's maintenance foreman, approximately 4 months after
the belt tension unit in question was installed in July 1985, the
axle, which was not welded to the frame, came loose, and a wheel
dropped off. He indicated on cross-examination that there would
have been more friction to the belt and it would have slowed
down, but it is most significant to note that according to his
testimony, the belt operated normally and nothing locked up or
jammed.
~aking into account
_2Q~sible, as outlined by

all the above, I conclude that it is
Allen, that in the event of the axle
bending, there could be friction to such a degree as to cause a
Eire which could cause a hazard to an employee working 22 feet
away. Also, it is clear that there was a possibility of the axle
breaking, which could cause the belt to stop, causing injury as a
result of material on the belt or the belt itself being thrown at
persons in the vicinity and injuring them.
However, due to the
presence of vertical rollers, and especially, the maximum of
5/8 of an inch clearance between the I beam and the frame, I find
that it has not been established by the weight of the evidence
that there was a reasonable likelihood that the hazard of the
axle breaking or bending.would result in an injury of a
reasonably serious nature. As such, it has not been established
that the violation herein was significant and substantial.
(See,
Mathies Coal Company, 6 FMSHRC 1 (January 1984).
III

According Allen, it is difficult to determine the amount of
time it took to wear the axle down to the point where it was
observed by him. He indicated, however, that a representative of
the miners, Nelson Starcher, told him that the condition had been
in existence for 30 days. Allen said that Starcher said that
the Company did not want to shut down the longwall to repair it.
He said that Starcher and another miner, Richard Moats, had asked
the Company to repair it. Henline, who was responsible for the
operation of the belt line, indicated that about a week to
10 days prior to the issuance of the Order in question, a
greaser, who has the responsibility for weekly greasing the unit,
in essence, informed him of the wear. Henline indicated
essentially that he could only see "very slight" wear of the axle
before taking off the washer, but with the washer off, he had
observed that it was "worn" (Tr. 272), but he did not feel it
would cause any safety problems.
He indicated that he did not
feel at that time that it was necessary to shut down production
to replace the axle.
Henline then ordered a new axle, two
wheels, washers, and cotter pins which were delivered 2 days
later, and were placed near the belt tension unit.

2285

In order to establish that the violation herein was the
result of Respondent's unwarrantable failure, Petitioner must
establish the existence of "aggravated conduct."
{See, Emerv
Mi~~~Corporation, 9 FMSHRC 1997 {1987)).
In this connection,
it is significant to note, as discussed above, infra, that
Henline already had the experience of having a wheel fall off the
unit in question, with the result that the belt had continued to
operate in a normal fashion.
Further, the existence of the
vertical guide. tellers, as well as the frame which overlapped the
I beam, would tend to mitigate to a significant degree, the
consequences of a broken axle. Given these circumstances, I
conclude that it has not been established that the violation
herein was as a result of Respondent's unwarrantable failure.
IV
Respondent had on hand, in close proximity to the belt
tension unit, replacement parts for a wheel and axle, for approximately a week prior to the issuance of the Order in question. I
conclude that it acted with a moderately high degree of negligence in not replacing the worn axle which it had known about for
at least a weeK prior to the Order. Primarily due to the presence
of the vertical guard rollers, and the effect of the overlapping
frame on the amount of movement that could reasonably be expected
from the carriage in the event of an axle breaking, I conclude that
the gravity of the violation herein was only moderately serious.
Taking into account the other statutory factor, as stipulated to by
the Parties, I conclude that a penalty herein of $800 is appropriate
for the violation found herein.
O'RDER
It is ORD~RED that Order No. 3117715 issued August 29, 1988,
be amended to a section 104{a) Citation, and be further amended
to reflect the fact that the violation therein is not significant
and substantial. It is further ORDERBD that Respondent shall,
within 30 days of the Decision, pay a civil penalty of $800 for
the violation found herein.

12

I

·

~i~
Law Judge
~dministrative

Distribution:
~onald Gurka, Fsq., Office of the Solicitor, U. s. Department of
Labor, 4015 Wilson Boulevard, Room 516, Arlington, V~ 22203
{Certified Mail)

Michael~.

Peelish~ Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 {Certified Mail) {Certified
Mail)

dcp
2286

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

22041

NOV 15 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF

DISCRIMINATION PROCEEDING
Docket No. WEVA 89-105-D
HOPE CD 89-02

JAi\1ES S • ·rERRY,

Complainant

v.

MudlicK N::>. 1

TIMBERLINE ENERGY, INC.
and
Randy w. Burke,
personally and as President
of TIMBERLINE ENERGY, I~C.,
Respondents
DECISION
Appearances:

Before:

Charles M • .Jackaon, Esq., Office cf tl1e Solicitoc,
U.S. Department of Labor, Arlington, Virginia,
for Complainant;
Paulo. Clay, Jr., Esq., Conrad and Clay,
Fayetteville, West Virginia, for Respondents.

Judge Maurer

This case is before me upon the Complaint by the Secretary

of Labor on behalf of James S. Terry under section 105(c)(2) of

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seq., the "Act", alleging that Mr. Terry was discharged by t11e
respondents on October 27, 1988, in violation of section 105(c)(l)
of the Act.
The Secretary seeks reinstatement, back wages and
interest for Mr. Terry dS ~ell as civil penalties against the
respondents.
Respondents maintain that Terry was not discharged
in violation of the Act, but rather was discharged for his
failure to adequately perform his duties as a section foreman.
Pursuant to notice, an evidentiary hearing was held at
Morgantown, West Virginia on May 4, 1989.
Subsequently, both
parties have filed post-hearing proposed findings of fact and
conclusions oE law which I nave considered along with the entire
cecord and considering the contentions of the parties, make this
deci~3 ion.

2287

STIPULA'rIONS

The complainant and respondents stipulated to tne following:
1.
Pursuant to Section 113 of the Act, 30 U.S.C. § 823, the
Fed.er-al Mine Safety and Health Review Commission nas jurisd.i.-::tion
over the subject matter of this case.

2.

At ali times rcle11ant herein, Complainant James S. Terry
at Respondent Timberline Energy, Inc.'s Mudlick No. 1 Mine
and was a miner as defined in Section 3(g) of the Mine Safety and
Healtb Act of 1977.
30 U.S.C. § 802(g).
~orked

3.
Timberline Energy,
incorporated under the laws
engaged in the operation of
an "operator" as defined in
§

Inc., Respondent, is a corporation
of the state of West Virginia, and is
coal mine facilities and is therefore
Section 3Cd) of the Act 1 30 U.S.C.

&02(d).

4.
The subject Mudlick No. 1 Mine, which is located near
Bergoo, in Webster County, West Virginia, has product~ that enter
c-::iinmercr= or bas operations or products that affect commerce, and
therefore is a "mine" as defined in Section 3(h)(l) of the ~ct,
30 u.s.c. § 802(h)(l).
5.
On or a.bout October- 28, 1988, Complainant ,James 3. Terry
filed a complaint with the Secretary alleging discrimination.
6.
James S. Terry was 2mploy2d as a 1nir1el'." foe Timberline
Ener.9y, Inc., from October 14, 1988, to Octobec 26, 1988.
7.
Randy W. Bur~e is, and wa3 at all pertinent times,
President of ~imber-line Energy, Inc.
8.
Randy W. Burke owns, and at all per-tinent timed owned,
fifty percent (50%) of Timberline Energy, Inc.
9.
Randy W. Burke is an operator as defined in Section 3(d)
of the Act, 30 u.s.c. § 802(d).

10. Randy w. Burke is a person as defined in Section 3(£) of
tile Acc., 30 u.s.c. § 802(t).
11.
~he shareholders of Timberline Energy, Inc., are
W. Burl«=, who o••rn.s Eif ty 9ercenc ( 50%) of the shares, and
Eric Meador-, who owns fifty percent (50%) of the shares.

~andy

12.
Randy W. nur:(e ·,.;as the p8r3on froin Timberline Ener9y,
Inc., who managed t~e Mudllck No. l min~ f~c Timb9rline Energy,
1 L1C.

2288

13. Randy W. Burke played a role in ma~inJ decisions about
business activities for Timberline Ener1y, Inc., at the Mudlick
No. l rnine.
14.
Randy W. Burke had at least ·3ome reaponsibility for
setting wage rates for Timberline Energy, Inc., at the Mudlick

No. l .1nine
15.
Randy w. Burke-took part in the 'hiring of emplofees for
Timberline Energy, Inc., at the Mudlick No. l mine.

16. Randy W. Burke has, and at all pertinent t Lnes had, the
authority to hire e1Hployee.s for 1'imberline Energy, Inc., at the
Mudllc~ No. l mine.
17.
Randy W. Burke has, and at all pertinent times had, the
authority to lay off employees for Timberline Energy, at the
Mu~lick

18.

No. l

mine~

Randy W. Burke has, and at all pertinent times had, the

authority to reinstate employees for Timberline Energy, Inc., at
the Mudlick No. 1 mine.
19.
Complainant Jame3 s. Terry earned a straight time salary
of $2,800.00 per month while an employee of Timbe~line Energy,

Inc.
20.
Complainant James S. Terry worked an average of 44 hours
per week while .:in employee of 'rirnberl i.ne Energy, l'.1c.
21.
Complainant James W. Terrt was covered by a hospitalization plan while employed at Timberline Energy, Inc.
22.
Timberline Energy, Inc., produced approximately 44,775
tons of coal at its Mudlick No. 1 mine during the period from
June 1, 1988, to December 31, 1988.
23.
Timberline Energy, Inc., had approximately 18 emplo1ees
at any one time during the period Erom June 1, 1988, ~o
December 31, 1988.
24.
Order No. 2728486 and Citations Nos. 2728485 and 272&487
were issued on October 27, 1988, by Mine Safety and Healtn Administration In3pector Paul E. Hess, and were served on Timbecline
Energy, Inc., or it3 agent as ~equired by the Act.

2289

FINDINGS OF FAC'l'
Having considered the record evidence in its enti~ety, I
£ind that a prepondecance of the reliable, substantial and
~robativ~ evidence establishes the follo~in3 findings of fact:

1. ·rhe complainant, .James s. Terry, was emplofed for
approximately twenty-eight years in and around coal mines prior
to i1is employment with.Timberline Energy, Inc., on October 14,
1988.
2.
Tecry was employed as a section foreman for Timberline
Energy, Inc. from October 14, 1983, to October 26, 1988, on the
evening shi.ft.
Wnen Terry began wor~ing at Timberline, he felt the
conditions at the Mudlick No. 1 Mine were "good".
His
opinion changed, however, within the next few days as the
condition of the top became adverse.
3.

wor~ing

4.
On October 17, 1988, Terry encountered top at the No. 2
e:itry which showed :>igns of bceaking along the c idge, making
noises characteristic of bad top.
He drilled test holes in the
affected areas which did not show any separation of the top but
rather showed that the top was soft. Terry "danger~d off" that
particular area and recorded his action in his book on the
surrace.
5.

On October 13, 1988, the top fell in the No. 2 entry.

6.
On October 25, 1988, Terry was supposed to keep his crew
after the regular shift to change the oelts on the No. 2 conveyor
belt.
However, he did not change them because he noticed that
the No. 3 entry had begun that day to sho~ the characteci~:ics of
bad top.
Accordingly, Terry instead tooK his bolt crew and, £or
approximately four to five hours after their shift, set Eifty to
si~ty additional six foot bolts to supplement the £our foot bolts
that had already been 9laced in that area.
7.
Timberline took no adverse action against Terry [or hia
decision to set additional roof bolts rather than change belt as
he had been j_1ntructed to do, other than to question him a.s to
why h~ ~ad made that decision.
i3.
When •rer.-ry :~rrived at the 1nine on Octob~r 26, 1988, he
was told by the miners on the day shitt that they ~ere h~ving
trouble ~it~ the top and ~0 be car2Eul.
He went unJerground with
his ~rew and found that the mine foreman, Randy Key, ~as alr2ady
ander3round with one of tne men (3ubert Kay) Er~m the evening

2290

shift building cribs for additional support in the crosscut lefthanded off the No. 3 entry. -Terry was advi~ed by Randy Key that
they had built crib~ in other areas of the mine, that they had
used all of the crib blocks that were in the.mine, and that the
miae was safe to work at that time in his opinion. While the men
began moving the equipment into the face area, Terry and Randy
Key ~ent down the No. 3 entry to talk.
Randy Key advised him
that there was additional support 1naterial outside being loaded
onto the scoop by the outside man and that, when the scoop
batteries were charged, the material would be brought down if he
needed it.

9. Within a few minutes after his discussion with Terry in
the No. 3 entry on October 26, 1988, Randy Key ~ent outside.
Shortly thereafter, the crew shut off theic equipment while
moving it to the face area to get it in place to mine coal.
In
the silence, they heard the top "working" again.
Terry then
instructed nis crew to bring the equipment back out and called
Randy Key on the suiface to advise him that the top was again
causing trouble.
10. There were insufficient crib blocks on hand at the mine
site, inside or outside, to adequately support the roof.
11. Timbering is in the opinion of some equivalent to
placing cribs if you set the timbers in a cluster and there were
sufficient timbers outside to do the job, although some or all of
these timbers would have had to first be cut to size.
Terry was
of the opinion, ho~ever, that the only sure :nethod of making that
roof sa~e to ~ark under that evening was to baild c~ibs and the
material to build those cribs was not available chat night.
12. When Terry returned to his crew after tal~ing to Randy
Key, he told them that the outside man would be bringing i11 some
roof support ~aterial when the scoop wa3 recharged. While
~aiting, the crew listened to the roof "worKing" and decided
among themselves to go out3ide. By this time, Randy Key had left
the mine site.

13. Terry then returned to the telephone to again attampt
to talk to Randy Key, but was advised that he waa already gone.
At this point, Tercy "dangered off" the area and with his crew,
moved the mining equiptnent out of tne affected area and taking
theic perdonal equipment, returned to che :;urface.
14.
Upon ceturnin~ to the 3urtace of ~he mine w1~n the
evening crew on Occober 26, 1988, Terry called Randy Key's home
and left a ffiedsage wit:1 Mrd. Key that Randy Key 3hould r2turn his
~all as soon as ne drrived.
Ba recorded in the mine book that
the area i1ad been "dangered off" and wait3d in vain for the

2291

return telephone call from Randy Key. At 7 p.m., having heard
nothing oac;'< from Randy Key, be let the c~ew 90 home. At
approximately 9:00 p.m., Terry retucned below and preshift9d the
mine for the night crew. The top was still working at that time.
ae then returned to the surface, filled out tne pre~hift reports,
and departed the mine site when the night crew arrived.
15. MSHA Inspector Paul E. Hess arri~ed at the mine site
and went under9round with the night crew at approximately 11 p.m.
on October 26, 1988. At that time, he could not hear the top
"working". However, he noticed numerous indications that the top
had been «working" in the No. 3 entry and face, tne No. 3 to 2
crosscut, the No. 3 to 4 crosscut, and the No. 4 entry ap coward
the face, including cutters, slips, and loose, bro~en roof that
had gapped down. He thareupon advised the foreman of the night
crew that ~1e was is.suin9 an Im1ninent Danger Order an the a.Cfected
sections and placed red tags at the No. 3 entry and the i\io. 4
1~nt.cy.

16. Open ceturning to the mi~9 on che evening of October 27,
1988, Inspector Hess observed that approximately twenty cribs and
t~ree or four headers had been placed in the araaa containing the
bad top. The material to place this amount of additional roof
support had not been available .. to Terry the previous evening.
17. Randy Key had made the impression on Terry that the
clear priority Ear the evening of October 26, 1988, was to mine
coal in Nos. 2, 3 and 4 entries. Key, however, 6peciEically
denies telling Terry that he must run coal 011 this shift or he
and his men would be terminated. No ocher witnesses corroborated
Terry's assertion that this statement WdS made and nobody was in
fact Eicad, except Terry. My sense of what cranspiced is that
Randy Key left no doubt in Terry'~ mind that he expected some
coal ta be mined that night, but I do not belie~a that he specifically threatened Terry's job or the jobs of the til·::!n i f it could
not be tor some reason.
l8. On October 25, 1988, Randy Key and Terry had discussed
changing out some 500 feet of rubbec on the No. 2 belt. Terry
was 3Upposed to keep his men after their regular shift to do the
job. Inscead of changing che rubber out, however, Terry elacted
to set additional roof bolts that particular evening because he
felt the top needed more support.
19. On October 26, 1988, Randy Key and Tec~y again spoke
about the belt change. Key a3ked if the men could stay after
that shift to do the job since it had not gotten done t~e night
bef or.~. Tct· r y cepl ied that his tnen we ce ti red a.:; th·=Y had .3 tayed
ovec <:he r1ight before, anci a:3ked if it could :iot be done the
following ni9:1t instea.d. Key a9c:=.?~d.

2292

20.
Subsequent to encountering bad top on October 26, 1988,
Terry nevertheless did not have his crew change out the rubber on
th9 belt line that night despite the fact that thete was no
safety related reason that his crew could not have done so. The
belt line was outside of the area of bad top.
21. Randy W. Burke made the decision to terminate the
Complainant, James 3. Terry, from his einployment with T imb,~:rline
Energy, Inc.
22. Terry was fired shortly after he arrived at the Mudlick
No. 1 mine on October 27, 1988. He met with Randy Key and
Randy W. Burke. When he walked into the office, Randy Key said
to him, "I guess you know why you are cut off." When Terry asked
why, Randy Burke gave the reply:
"How does incompetence sound?
It is obvious you don't know top; you can't make a judgment on
top to worK men undec it." Burke then asked Terry why he did not
put in the belt if-he was afraid of the top.
Terry ceplied that
he did not feel that he could make that kind of decision and that
he believed that he was "going to get fired anyway •... " Burke
testified that "I didn't really get any good answer out of hitn."
DISCUSSION AND CONCLUSIONS
In ordec to establish a prima facie case of discrimination
under section 105(c) of the Mine Act, a complaining miner bears
ti1e burden of production and proof to establish C1) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Fasula v. Consolidation Coal Company,
2 FMSHRC 2760 (1980), rev'd on other grounds sub nom.
Consolidation Coal Company v. Marshall, 663 F'.2d 1211 (3d Cir.
1981); Secretary on behalf of Robinette v. United castle Coal
Company, 3 E'MSrIRC 803 ( 19 81); Secretary on behalf of Jenkins v.
Hecla-Day Mines Corporacion_, 6 FMSHRC 1842 (1984); Secretary
on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508,
2510-2511 (November 1981), rev'd. on other grounds sub nom.
Donovan v. Phelps Dodge Coro., 709 F.2a 86 (D.C. Cir. 1983). The
operatoc may r8but the prima facie ca3e by showing either that no
protected activity occurred or that the adverse a~tion ~as in no
way motivated by protected activity.
If an operator cannot
reb•Jt the pr ima f ac ie case in th is inanne.c i:. may never t.neless
aEfirmativelj defend by proving tnat it was also motivated by the
minec's unprotected dctivitics alone. The operator bears the
burden of proof with regard to the afficmatiqe defense. Haro v.
Magma Copper Company, 4 ~MSHRC 1935 (1982). The 11ltimate b!1rden
of per3uasion does not shift from the complainant. Robinette,
suora.
See also Baich v. FMSHRC, 719 F.2d ~94 (6th Cir. 1983);
and Donovan v. Starford Construction Comoany, No. 83-1556 o.c.
Cir. (April 20, 1984) (speciEically-approving the Commi3sion's
Pasula-Robinette test).
See al3a NLRB v. Transportation

2293

"

Management Corporation, 462 U.S. 393, 76 L~Ed.2d 667 (1983),
where the Supreme Court approved the NLRB's virtually identical
analysis for discrimination cases arising under the National
Labor Relations Act.
A miner's "work refusal" is protected under section 105(c)
of the Act if the miner has a good Eaith, reasonable belief in
the exist9nce of a haza~dous condition. Miller v. FMSHRC, 687
F.2d 194 (7t11 Cir. 1982); Robinette, supra.
Proper communicati::m
of a percei•Jed hazard is also an integral component of a
protected work refusal and the responsibility for the
communication of a belief in a hazard underlying a wor~ refusal
lies with the miner. See Dillard Smith v. Reco, Inc.,
9 FMSHRC 992 (1987).

I find that Terry ~as engaged in protected activity when he
and his men withdrew f rorn the mine because of hia concsrna about
hazardous roof conditions. Terry's belief was reasonable and in
good faith. The reasonableness of Terr1's concerns and his withdrawal from the mine is corroborated by the tact that a federal
mi:-ie inspector shortly thereafb::c issued an Imminent Danger
Wit~drawal Order under Section 107(a) of the Act.
Terry also
made every effort to communicate with his boss, Randy Key, to
inform him 0£ what he was doing, and what he perceived to be a
hazardous condition.
Unquestionably, Terry's firing by Randy Bur~e, on the day
following hi3 withdrawal, was motivated at lea3t in part by his
l1aving wit~drawn from t~e mi~e, and therefore, I find that the
complainant has made out a prima facie case of discri1nination
tHH.ier the Mine Act. 1 also t Lnd that t:.•1e operator. is unable to
rebut this prima facie case by showing that no protected activity
occurr~d or that the adverse action was in no way motivated by
the protected activity. The preponderance of the evidence is
clearly to the effect that Terry engaged in protected activity
and that his Eicing was ifi")tivated at le=i.st in part by that
pcotected activity.
crhe r.emainin.g que'3 ti on is the inos t <li c Eicult.
Respondents
may af:cicmatively t'L~fend by showing that this was =i. "mixed
1Aoti~~s 11 case and that Terry's unprote~ted actiqity was in and of
itself suEEicient motivation foe taking the adverse action
~gainst hi1n.
The acgument 1oes that 8ven i£ Terry ~as juscitie6
in ~itndrawing hims~l£ and his crew Crom the section because of
t~e hazardous roof conditions ha encounter8d, he should have
i:l.ccomplished some othec work in a non-hazacdous acea o:f th·~ mine
cathec ti1a11 allow the entir .=:! crew to siinply 30 home.
Respond.=nt·~~
po~3ition i:~ that tllL; unprotected activity a.lone ;>c:>~rided the
~)c i_ nary a.nd a :3uff icient basi:.5 i:or Terry's discharJe.
1

2294

From the totality of the record herein, I find that there
were a myriad of reasons that led to Terry's firing. To start
wit~, Terry had been out of the mining industry for sometime and
had been working for Timberline for less than two ~eeks ~hen he
was terminated. Prior to the night of October 26, 1988, Key and
Burke llad already beeri discussing Terry's termin::ltiou for
unrelated matters which Ket felt had not been properly handled by
Terry. On the pacticular night in question, Key and Burke were
unhappy that Terry's crew didn't mine coal as they had expected,
but were even more unhappy that he and his ere~ left the mine
instead of supporting the roof. They believed, with some
justification I think, that if in Terry's judgment, the roof
needed additional support, he should have provided it. Moreover,
it appears that Terry abdicated control of the situation and his
crew, allowing tnem to go ho1ne when there was belt work he knew
had to be accomplished that was outside of the area of bad top.
Even if in his judgment, he believed that the proper materials to
support the root were not available, he could have at the least
had his crew accornpli3h the belt change. His only justification
for not doing so seemingly was his belief that he was going to be
fired in any event because Key had told him to run coal.
As a management employee, Terry has to be charged with the
exercise of soine degree of judgment and· supervisory ability in
directing the work force. As a foreman, he has to be charged
with the awareness that there is always "dead work" to be done
when coal cannot be mined for some reason. In tnis case, he
specifically knew of the belt that had to be moved.
I find that
tha operator' a termination of Terry could reasonably and justi::iably t1ave been done because of Terry's extrernely poor j11dgment
in not directing his crew to perform any work whatsoever. More
specifically, I ::ind that his failure to at lea:>!: ;nake the belt
move that he had been askaJ to make after the shift that night,
was unprotected activity and could reasonably ha11e served as a
';o,nplet.~ly inde 1)endent basis for. his dischar-ge.

It appears to ine that Mr. '.rercy was placed in a position of
authority and responsibility for whicl1 he was ill-equipped to
de~l wi~h wne11 the rooi conditions b~came adverse.
A tair
reading of the entire record herein, particularly his own
i:,~stirnony a:1:.l ti1at of Hubert Key indicates to .ne that Iv~
abandoned control 011er his •n•=n and the job ·..vhen l1e encountered
the adverse roof conditioris described herain. When he could not
get a~old of RanJt Key for further guidance, he completelj gave
11p hi::; -'.iuthorii.:J and his e~~3pon.sibility.
Notably, h~ did not
direct his ~en to go home, they ~im~ly left.

I concl..1cie t:1B.t alt'1ougl1 co1nplainant establi·;hed a orima
iacie case or discriiniriati.:m, C.he operat:)c has 8.staolishea that
tne adverse action wa3 substantially motiv~ted by an unprotected

2295

factor, namely, his failure to engage his crew in productive work
activity after the roof conditions became too adverse to mine
coal.
It is certainly reasonable to e~pect your line 3Upecvisors
to supervi3e and make decisions concerning the direction of. the
wock force.
I thus t~rthec conclude that the operator ~ight
reasonably and justi~iably have taken the adv~rse ~ction ·
complain,=d of Eoc this unprotected factor alone.
Therefore, complainant has failed to establi3h that
respondents discriminated against him in violation of the
provisions of section 105(c) of the Acc.

ORDER
Based on the above Eindings of fact and conclusions of law,
it is ORDERED that the complaint of discri1nination be DISMISSED.
,

... !
"(:"

.. .
,:

.

Roy J .. Maur8r
Admini~trative

L~w

Judge

Distcibution:
Ch~rles M. Jackson, Esq., Office of the Solicitor, U.S. Department of Labor, Room 516, 4015 Wilson Blvd., Arlington, V~ 22203
(Cert i. Ci.ed Mai 1)

Mr. James S. Terry, Route 3, Box 72, Webster Springs, WV

26288

( Ce t· t L E i ed Mai 1 )

Paul 0. Clay, Jr., Esq., Conrad and Clay, 215 West ~aple Avenue,
P.O. Box 953, Fayetteville, WV 25840
(Certified Mail)

/ml

2296

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

NOV 15 1989
DISCRIMINATION PROCEEDING

SECRETARY OF -LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
JOHN L. JONES, JR.,
Complainant

Docket No. WEVA 89-227-D
HOPF CD 89-07

v.

Mine No. 4

VIRGINIA CARBON, INC.;
DAVID CLEVENGER, Individually
and as operator of Virginia
Carbon, Inc.;
_
EVERETT DELANEY, Individually
and as operator of Virginia
Carbon, Inc. ;
MARSHALL KEEN, Individually
and as agent of Virginia
Carbon, Inc.;
CARLOS KEEN, Individually
and as agent of Virginia
Carbon, Inc. ,
Respondents
DECISION APPROVING SETTLEMENT
The Secretary brought this case in behalf of John L. Jones,
Jr., under§ 105 (d) of the Federal Mine Safety and Health Act,
3~ u.s~c. § 801 et seq., alleging a discriminatory discharge in
violation of § 105(c) of the Act.
The Secretary has moved for approval of a settlement
agreement.
I have considered the representations and
documentation submitted and I conclude that the proffered
settlement is consistent with the purpose of the Act.
ORDER
WHEREFORE IT IS ORDERED that:

1. The motion to approve the proffered settlement is
GRANTED.

2297

-------------- ---------·-···--·---- ·------- ----- - - - - -·- ·------" ..
-·

------------------------------

2. Respondent shall pay the agreed settlement amount within
30 days of thi~ Decision and upon such payment this proceeding is
DISMISSED.

~ J )/;f~ ~(A.MV't-A_

~iam Fauver

Administrative Law Judg~

Distribution:
Robert s. Wilson, Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
Lawrence F. Morhous, Esq., Hudgins, Coulling, Brewster, Morhous
and Carner on, 418 Bland Street, P.O. Box 5 2•9, Bluefield, WV
24701-0529 (Certified Mail)
iz

2298

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

22041

NOV 1 71989
CIVIL PENALTY PROCEEDING

SECRE'rARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

Docket No. PENN 89-40
A.C. No. 36-00840-03665

v.

Cambria Slope No. 33

BETH ENERGY MINES, INC.,
Respondent
DECISION
Appearances:

Before:

Paul D. Inglesby, Esq., Office of the Solicitor
U.S. Department of Labor, Philadelphia,
Pennsylvania for Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll
Professional Corporation, Pittsburgh,
Pennsylvania for Respondent.

Judge Melick

This case is before me upon the petition for civil
penalty filed by the Secretary of Labor pursuant to
section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801 et sea., the "Act," charging Beth
Energy Mines, Inc., (Beth~ergy) with three violations of
its Ventilation System and Methane and Dust Control Plan
(Ventilation Plan) under 30 C.F.R. § 75.316. The general
issue before me is whether Beth Energy violated the
ventilation Plan as charged and, if so, the appropriate civil
penalty to be assessed in accordance with section llOCi) of
the Act.
The three citations at bar allege similar violations of
the operator's ventilation Plan. Citation No. 2887804 ·
alleges a "significant and substantial" violation and charges
as follows:
The approved ventilation system and methane and
dust control plan was not complied with in that the
air lock at the 7 Right between numbers 6 track and
7 intake entries were not properly installed. Both
doors would open outby away from each other and a
proper air lock was not provided.

2299

Citation No. 2887805 charges a "significant and
substantial" violation and charges as follows:
The approved ventilation system and methane and
dust control plan was not complied with in that the
airlock doors at the 8 Right between the Nos. 6
trac~ and 7 intake entries were not properly
installed. Both doors would open outby away from
each other and a proper air lock was not provided.
Citation No. 2887807 charges a "significant and
substantial" violation and charges as follows:
The approved ventilation system and methane and
dust control plan was not compled with in that the
airlock doors used at the 8 Left supply station
were not properly installed. Both doors would open
outby away from each other and a proper air lock
was not provided.
In relevant part the Ventilation Plan provided as
follows:
Equipment doors •.•• shall be in pairs to form an
air lock where permanent stoppings are replaced by
doors separating return air entries from intake air
entries.
As explained at hearing the Secretary's theory of
violations in these cases is that the cited doors did not
provide an "air lock".~/ There is no disagreement that in
order to constitute an "air lock" within the meaning of the
Ventilation Plan the doors need only be "reasonably air
tight". More particularly the Secretary argues that the
paics of equipment doors here cited did not form an airlock
because the opening of one set of doors caused the second set
of doors to open automatically.

!I Contrary to the Respondent's claims this theory was
indeed set forth with sufficient particularity in the
citations at bar. In any event Respondent declined the
opportunity for continuance in trial to prepare any
additional defense of the charges. No legal prejudice has
been shown.

2300
--------------------------

Citation No. 2B87804
According to the testimony of MSHA Inspector and
Ventilation Specialist Michael Bondra an air lock was not
provided at the double sets of doors at the 7 Right section
between the Nos. 6 track and 7 intake entries on September 9,
1988. According to Bondra when the doors adjacent to the
track entry were opened one of the second set of doors also
opened about 12 to 18 inches at the top because of the
pressure differential. He accordingly issued Citation
No. 2887804.
Steve Olexo, a Beth Energy safety inspector, accompanied
Bondra on his September 9, 1988, inspection. Olexa
acknowledged that the door had problems--the rubber seal at
the top was worn and the nail holding the seal had come
loose. Olexa also conceded that the left side 0£ the door
had a slight warp allowing the door to remain open some 6 to
7 inches and allowing some air movement toward the No. 7
entry.
Within this framework it is apparent that the cited door
was indeed not "reasonably air tight". It admittedly had a
gap of at least 6 inches allowing air to pass toward the No~
7 entry and therefore could not form an "air lock" within the
meaning of the Ventilation Plan. The violation is
accordingly proven as charged.~/
In order to find that a violation is "significant and
substantial" however, the Secretary has the burden of proving
not only the existence of an underlying violation of a
mandatory standard but also the existence of a discrete
hazard Ca measure of danger to health or safety) contributed
to by the violation, a reasonable likelihood that the hazard
contributad to will result in an injury, and a reasonable
likelihood that the injury in question will be of a
reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1
(1984).
While Inspector Bondra acknowledged that he did not test
for air movement or pressure differential at the cited
doors, he testified that he "could feel it". According to

~/ Beth Energy alleges in its post hearing brief that
the Secretary failed to prove that the No. 7 intake was an
escapeway.
I disagcee. This may reasonably be inferred from
the testimony of Inspector Bondra.

2301

Bondra if there had been any smoke emanating from the track
entry, that smoke would therefore contaminate the in~ake
escapeway upon -opening the track-side door. He thought it
was ~very likely that the track-side door would be left open
allowing the track air to pass into the escapeway through the
gapped second door. He estimated that up to two work crews
of eight miners each could have been affected.
On cross-examination Bondra conceded however that
neither of the potentially affected ~ections were then active
and that apparently the only reason for the continued
existence of the cited doors was to permit removal of some
machinery left from active mining i.e. a battery charger and
some longwall equipment. According to Mine Foreman William
Radebach, at the time the doors were cited the 7 Right
section was indeed inactive and the doors were only rarely
used. It is also undisputed moreover that while there had
been a fire on September 1, in the track entry contaminating
the entire track entry the smoke from that fire never entered
the No. 7 air course.
Under all the circumstances I cannot find that the
Secretary has sustained her burden of proving that the
violation charged in Citation No. 2887804 was "significant
and substantial" or of high gravity.
I observe however that
In.specter Bondras' finding of "moderate negligence" is not
challenged by Beth Energy.
Citation No. 2887805
Bondra testified that the set of air lock doors at the
8 Right section between the No. 6 track and No. 7 intaKe
entries was also not properly installed and that similarly
upon opening the first set of doors the second set of doors
would also open about 6 to 8 inches allowing the air to pass
from the track entry directly into the intake escapeway.
Bondra also testified that no one accompanied him when he
observed these conditions. He acknowledged however that he
had been unable to locate his notes taken at the time he
issued the citation. Mine Inspector Steve Olexa disagreed
with Bondra and testified that he was in fact present when
Bondra examined this set of doors. Olexo testified moreover
that upon opening the first set of doors the second set did
not open at all.
I find the testimony of Olexa to be
entitled to the greater weight. No deficiencies in Olexo's
recollection were elicited at hearings and Inspector Bondra
admitted that he was unable to locate his contemporaneous
notes that would support his testimony. Under the
circumstances I £ind that the Secretary has failed to sustain

2302

her burden of proving the violation charged in Citation No.
2887805.
The Citation must accordingly be vacated.
Citation No. 2887807
Inpector Bondra testified that he found that the set of
air lock 6oors at the 8 Left supply station were not properly
installed in that upon opening the first set of doors at the
track entry side the second set of doors automatically opened
about 8 inches.
Bondra claims that he felt air flowing from
the track entry into the intake escapeway.
There is no
evidence that the doors were otherwise defective.
It is not
disputed that no one was present with Inspector Bondra at the
time of his observation of this condition.
It is also
undisputed that the 8 Left doors were used more frequently
than the other doors cited in these cases in that supplies
were moved through those doors onto the section.
I find
that the violation i3_ proven as charged.
The undisputed
evidence of a gap in the second set of doors of a inches upon
the opening of the first set of doors is sufficient to show
that the doors were not "reasonably air tight" and therefore
did not form a proper "air lock."
Bondra relied upon his testimony in regard to the prior
violations in support of his "significant and substantial",
gravity and negligence findings herein.
For the reasons
already stated I Eind that the instant violation was likewise
not "significant and substantial" nor of high gravity. The
unchallenged findings of "moderate negligence" are accepted.
In determining the appropriate civil penalties in these
cases I have also considered the stipulations concerning the
operator's size, history of violations and good faith
abatement.
ORDER
Citation No. 2887805 is vacated.
Citations No. 2387804
and 2887807 are affirmed as non-"significant and substantial"
citations and Beth Energy Mines, Inc., is ~irected to pay
civil penalties of $75 each within 30 daysi\,f the date
this decision for the violations fharged tt~rein.

o]

~

Ii

;:

f!

,fi
/'~

•·!

I

.· ·.

......

I

u [).;~. ", . . ~~,.--

l Gar:y Melick ~/

Adminis~rativ~ Law Judge

( 7o_3) 7:>6-6261.\

t

2303

·.

·:

Distribution:
Paul D. Inglesby, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll Professional Corp.,
USX Tower, 57th Floor, 600 Grant Street, Pittsburgh, PA
15219 (Certified Mail)
nt

2304

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

NOV 1 71989
CIVIL PENALTY PROCEEDING

SECRE·r ARY OF LABOR,
MINE SAFE·ry AND HEALTH
ADMINISTRATION, CMSHA),
Petitioner

Docket.No. PENN 89-184
A.C. No. 36-00840-03682

v.
Cambria Slope No. 33
BETH ENERGY MINES, INC.,
Respondent
DECISION
Appearances:

Before:

Paul_D. Inglesby, Esq., U.S. Department of Labor,
Office of the Solicitor, Philadelphia, Pennsylvania, •
for Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll, Pittsburgh,
Pennsylvania for Respondent.

Judge Melick

This case is before me upon the petition for civil
penalty filed by the Secretary of Labor pursuant to
Section 105Cd) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq., the "Act," charging Beth
Energy Mines, Inc., (Beth Energy) with two violations of
regulatory standards. The general issues before me are
whether Beth Energy violated the cited regulatory standards
and, if so, the appropriate civil penalty to be assessed in
accordance with Section llOCi) of the Act.
At hearing the Secretary filed a Motion to Approve a
Settlement Agreement with respect to Citation No. 2888987
proposing a reduction in penalty from $329 to $255. I have
considered the representations and documentation submitted in
the case and conclude that the proffered settlement is
appropriate under the criteria set forth in Section llOCi) of
the Act. Accordingly an appropriate order will be
incorporated as part of this decision setting forth the terms
of payment for the noted penalty.
The citation remaining at issue, No. 2887802, alleges a
"significant and substantial" violation of the mine
operator's Ventilation System and Methane and Dust Control
Plan under 30 C.F.R. § 75.316 and charges as follows:
The approved Ventilation System and Methane and
Dust Control Plan was not complied with in that the
airlock installed in the seven left chute

2305

area, between the tractor trolley No. 6 Entry and
intake escapeway No. 4 Entry was not properly
installed. Both doors were installed to open outby
away from each other and a proper airlock was not
utilized. This citation was revealed during a mine
tire accident that occurred in the seven left chute
area on 9-1-88.
At the conclusion of the Secretary's case-in-chief
counsel for Beth Energy moved for an involuntary dismissal
for insufficient evidence. The motion was granted in a bench
decision. That decision is set forth below with only
nonsubstantive corrections:

•

All right. I must say it's a nice try by the
Government but the evidence really is not
sufficient to suppo~t the citation. The citation,
of course, does state, and I will read from the
citation:
The approved ventilation plan system and
methane and dust control plan was not
complied with in that the air-lock
installed in the number seven chute area
between the track trolley, number six
entry, and the intake escapeway, number
four entry, was not properly installed.
Both doors were installed to open outby
away from each other and a proper
air-lock was not utilized.
The violation alleged was that the system of
doors here cited did not provide a reasonably
airtight air-lock as set forth in the ventilation
plan, Exhibit G-2(A). The Government does concede
through the testimony of Inspector Sondra that the
ventilation plan does not require any particular
construction for these doors, only that they must
be reasonably airtight to form an air-lock. So
the doors (and this is again conceded by the
Government) need not have a latch, they need not
close automatically and they need not in themselves
open in cectain directions. That in itself is not
a violation. The Government also acknowledges that
when the doors here cited (the three and four and
one and two doors that wece designated on Court
Exhibit Number One) were closed, they were, in
fact, admittedly reasonably airtight ~nd formed an
air-lock.
The Government also acknowledges that it did
not test the cited doors number three and four when
doors one and two were opened to determine whether,

2306

in fact, they would remain reasonably airtight upon
the opening of doors one and two. The Government
would have this Court infer from tests on other
doors that the cited doors would open, that is,
doors number three and four would open upon the
opening of doors one and two. But there has not
been sufficient evidence of the similarities
between the previously tested doors and the
untested doors here at issue for me to draw such an
inference. ·
The evidence is clear that the ability of the
doors to seal would vary depending on the contour
of the roof and floor, the condition of the rubber
belt edging contacting the floor and roof, etc.
Thus the amount of air it would take to open the
numbers three and four doors upon the opening of
the numbers one and two doors could vary widely.
So I cannot infer from tests on other doors, the
conditions of which may vary considerably, that the
same air velocity would also open the doors at
is3ue here. Therefore, I cannot find that the
government has met its burden of proving that the
numbers three and four doors here would have opened
upon the opening of the number one and two doors
from the difference in air pressure alone.
Now if the Government had in fact tested these
doors and found that they did open that's a
different case. But the tests were not performed
here and without those tests there is simply not
sufficient proof in my mind to support the
allegations in the citation. Therefore, I'm going
to vacate the citation and grant the motion to
dismiss.
ORDER

Citation No. 2888987 is affirmed and Beth Energy Mines,
Inc., is directed to pay a civil penalty of $255 within 30
days of the date of this decision. Citatio No. 2887802 is
vacated.

Law Judge

2307

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

22041

NOV 171989
BETH ENERGY MINES, INC.,
Contestant

.

CONTEST PROCEEDING
Docket No. PENN 90-2-R
Order No. 2892059; 9/27/89

v.

Cambria Slope Mine No. 33

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

Mine ID 36-00840
DECISION

Appearances:

Before:

Paul D. Inglesby, Esq., U.S. Department of Labor,
Office of the Solicitor, Philadelphia,
Pennsylvania, for Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll,
Pittsburgh, Pennsylvania for Respondent.

Judge Melick

This contest proceeding is before me upon expedited
hearings pursuant to Section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et~., the
"Act," and Commission Rule 52, 29 C.F.R. § 2700.52, to
challenge a withdrawal order issued by the Secretary of Labor
against Beth Energy Mines, Inc., (Beth Energy).
The Order at issue, No. 2892059, charges as follows:
The approved ventilation and methane and dust
control plan was not being complied with in the
4 West Main 8 Right area of the mine in that an
intake regulator had been constructed in,No. 3
intake entry of 8 Right without prior approval of
the District Manager. It was explained to this
operator on several previous occasions that prior
approval must be granted by the District Manager
before installing an intake overcast.
Following the presentation of the Secretary's case,
counsel for Beth Energy filed a Motion to Vacate the order
for lack of evidence. The motion was granted at hearing in
a bench decision. That bench decision is set forth below
with only nonsubstantive corrections:

2308

All right. Well I'm compelled to grant the
motion to vacate.
I don't have any choice. The
Government's expa.rt, Mr. O'Rourke, has indeed
testified that there is not sufficient information
in the record presented to him {and indeed, the
Government was even given an opportunity after it
concluded its case-in-chief to present such
information, but declined to do so) from which he
could determine whether the device at issue here
was indeed a regulator. Since the Government
could not, in fact, prove that the device was a
regulator, then, of course, it cannot be shown that
the device was in any event such a device that
required any kind of approval in the Ventilation,
Methane and Dust Control Plan or in any of the
attendant submissions required under 30 C.F.R.
section 75~316. Therefore the Government's case
must fail. The order must be vacated and the
contest is granted.
·ORDER
Order No. 2892059 is vacated and this
granted.

1,
G

y MJJick

Adi ini~t:.rative

{ 703)

7'.r· 6-6261

Distribution:

R. Henry Moore, Esq., Buchanan Ingersoll, 600 Grant Street,
58th Floor, Pittsburgh, PA

15219 {Certified Mail)

Paul D. Inglesby, Esq., U.S. Department or Labor, Office of
the Solicitor, Room 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA. 19104 {Certified Mail>
nt

2309

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

22041

NOV 171989
DISCRIMINATION PROCEEDING

SECRE'rARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION,
on behalf of
DAN NELSON
Complainant
and

Docket No. SE 89-107-D
OTC&! CD - 88-01(2)
Mine No. 7

UNITED MINE WORKERS OF AMERICA:
Intervenor

v.
JIM WALTER RESOURCES, INC.,
Respondent
AMENDED DECISION
Appearances:

Before:

Colleen Geraghty, Esq., Office of the
Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Complainants;
Patrick K. Nakamura, Esq., Longshore, Nakamura,
and Quinn; Birmingham, Alabama, for United Mine
Worker of America;
David M. Smith, Esq., Maynard, Cooper, Frierson
and Gale; Birmingham, Alabama, for Petitioner.

Judge Melick

Pursuant to Commission Rule 65(c), 29 C.F.R. § 2700.65(c)
the decision attached hereto is hereby subs ituted for the
decision issued in this case on November 13, 1989, for
purposes of clarification.

;
j

Gary
Admini trative
56-6261

(703)\

2310

Judge

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

22041

November 17, 1989

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION,
on behalf of
DAN NELSON
Complainant
and

DISCRIMINATION PROCEEDING
Docket No. SE 89-107-D
OTC&! CD - 88-01(2)
Mine No. 7

UNI'l'ED MINE WORKERS OF AMERICA:
Intervenor

v.
JIM WALTER RESOURCES, INC.,
Respondent
DECISION APPROVING SETTLEMENT
AND
ORDER OFJ5ISMISSAL
Appearances:

Before:

Colleen Geraghty, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Complainants;
Patrick K. Nakamura, Esq., Longshore, Nakamura,
and Quinn; Birmingham, Alabama, for United Mine
Worker of America;
David M. Smith, Esq., Maynard, Cooper, Frierson
and Gale; Birmingham, Alabama, for Petitioner.

Judge Melick

At hearing Complainant requested approval of a
settlement agreement in the captioned case proposing a
penalty of $2,000. I have considered the representations and
documentation submitted in this case, and I conclude that the
proffered settlement is appropriate under the relevant
criteria set forth in Section llO{i) of the Act.
WHEREFORE, the settlement is approved and it
that Respondent pay a penalty of $2,000 within 30
this order. The case is accordingly dismissed.

I
/

2311

/

t
J

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

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 88-274-M
A.C. No. 05-04057-05505 K2M

v.

Gold King Mine

L.E.L. CONSTRUCTION,
Respondent
DECISION
Appearances:

Robert J. Murphy, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Russell E. Yates, Esq., Yates & Davies, Durango,
Colorado,
for Respondent.

Before:

Judge Lasher

This matter was commenced by th~ Petitioner's filing of a
Proposal for Penalty on August 29, 1988, seeking assessment of
civil penalties for two alleged violations CT. 91) described in
two Citations (numbered 2636419 and 2636420) issued by MSHA
Inspector Royal B. Williams on April 12, 1988.
At the close of hearing on June 21, 1989, Petitioner moved
to withdraw its prosecution of Citation No. 2636420 (alleging
Respondent's alteration of a fatal roof-fall accident scene in
violation of 30 CFR § 50.12) and such motion was granted on the
record CT. 218-220). Accordingly, this Citation will be vacated
by subsequent order herein.
·
The remaining Citation, No. 2636419, as modified, was
issued pursuant to Section 104(d)(l) of the Federal Mine Safety
and Health Amendments Act of 1977, 30 u.s.c. Section 801, et
seq., and charges Respondent with an infraction of 30 CFR §
57.3200, as follows:
On March 13, 1987, a fatality occurred
from a fall of ground in the Gold King No. 7
drift. Shortly after this fatality two supervisors took a miner into the area for the sole
purpose of retrieving a rock drill and jackleg

2312

to prevent it from being caved on.
The supervisors were aware that the fatality hag occurred
from a fall of ground.
The roof where the rock
drill and jackleg was, had not been barred down
or supported after the fatality.
Supervision
knew that the condition created an imminent
danger to themselves and the miner.
This is an
unwarrantable failure to comply with a mandatory
standard.
30 CFR § 57. 3 200, pertaining to "Correction of Hazardous
Conditions," provides:
Ground conditions that create a hazard to
persons shall be taken down or supported before
other work or travel is permitted in the affected
area. Until corrective work is completed, the
area shall be posted with a warning against entry
and, when left unattended, a barrier shall be
installed to impede unauthorized entry.
BACKGROUND
Shortly after the fatal accident, MSHA issued two enforcement documents to Respondent, Order No. 2634865 and
Citation No. 2639864. These two violations were the subject
of an earlier proceeding and a Decision approving the parties'
settlement thereof - with penalties totalling $6,020.00 - was
issued October 21, 1988, by another Judge (See Ex. C-1).
The
record indicates that during the original MSHA investigation
following the accident there was no indication that anyone had
re-entered the mine following the fatality CT. 50-53, 134;
Ex. P-2).
Thereafter, and some 9 or 10 months following the accident,
MSHA initiated a second-special-investigation pursuant to
Section llO(d) of the Act to determine if a wilful violation
had been involved (T. 75). MSHA Special Investigator Benjamin
M. Johnson conducted this investigation CT. 71, 74, 76). While
Mr. Johnson was unable to interview Supervisor Boyd L. Hadden
or miner Jody Booker CT. 76-80), he did conduct a tape-recorded
interview and obtain the statement of Fred M. "Ted" Yates CT. 76).

2313

In this interview, apparently for the first time, Yates made according to Mr. Johnson - the following disclosure:
A.
In my interview with Mr. Yates, he
disclosed to me that after the fatality
had occurred, at approximately 1400 hours,
that he and Boyd Hadden and Jody Booker
had returned to the mine to remove the
jackleg and drill that was at the accident
site.
(T. 76-77)
Based on his Section 110 investigation, Special Investigator
Johnson recommended the issuance (by Inspector Williams) of the
two enforcement documents involved in this proceeding CT. 80,
82, 89, 90). Since, as above noted, Mr. Johnson was unable to
interview Mr. Hadden because of Mr. Hadden's refusal to be interviewed, and was unable to locate Jody Booker or to interview
Mr. Larry Luzar, the owner of Respondent (T. 77-78), it thus
appears that the determination to issue these two Citations was
primarily based on information submitted by Mr. Yates approximately one year after the accident occurred
CT. 76-80, 82, 83,
9 5) •

ISSUES AND CONTENTIONS
Citation No. 2636419 charges that two supervisors 1/ took
a miner 2/ into the area where a fatality (to miner Donald Goode)
had occurred from a ground fall for the "sole purpose" of retrieving a rock drill and jackleg "to prevent it from being caved
in on." The Ci tat ion also charges that the roof in this area had
not been barred down or supported after the fatality and that
supervision knew that the condition created an imminent danger
to themselves and to the miner.

11

Identified in the record as Fred M. "Ted" Yates, leadman
on the shift preceding the accident, and Boyd L. Hadden,
supervisor.
It is subsequently concluded that only Yates, a
supervisor went back in the mine with a miner.

2/ Identified in the record as Jody Booker, a miner.
was not available to testify.

2314

Mr. Booker

Respondent contends in its post-hearing brief that an
entry into the mine by Yates was contrary to the direct order
of the mine owner, Larry Luzar, and thus unknown to management,
thus raising the question whether a violation Cif one occurred)
by shift boss Yates is attributable to Respondent.
A second matter important to determination ·of this case is
resolving a conflict of testimony between Yates and Hadden as
to Hadden's participation in the alleged violation and assessing
the degree of weight and reliability to be attributed to their
accounts of critical happenings.
FINDINGS
On March 12, 1988, the day before the accident, Fred M.
"Ted" Yates, who has a total of 3 2 years prior mining experience,
was working as "lead miner" with two other miners, Grady Colby
and Jody Booker on the 4 p.m. to midnight (swing) shift CT. 27,
29-30, 210).
After the shift, Mr. Yates left a note in the shop
(a van truck) outside for the morning shift advising them to
watch the left rib as it was peeling CT. 30, 31, 205).
According
to Yates, the condition was "bad" meaning the rib "was peeling,
slabbing, some small rocks was falling" CT. 29-31, 35).
The following day, March 13, 1988, the day of the accident
at approximately 3:15 p.m. CT. 37) Yates and Jody Booker, a
miner, stopped at the home of the mine owner, Larry Luzar, for
the following stated purpose:
"We was going to talk to him to see
~hat he wanted to do, what we was going
to do there that night, because we
figured that we was -- didn't want to
work there without timbering it or
bolting it, or something to secure it."
CT. 32)
Luzar was not home and Mrs. Luzar advised Mr. Yates and
Jody Booker that there had been an accident at the mine. Yates
and Booker proceeded toward the mine where, approximately
5 miles therefrom they encountered the ambulance to which Donnie
Goode was being transferred CT. 36-37, 209-211). Mr. Goode was
in a stretcher beside the ambulance and was being administered
CPR by Mr. Luzar. Mr. Luzar and Grady Colby, one of the swing
shift crew, then left together with Mr. Goode in the ambulance
to proceed to Durango CT. 37-38).

2315

Yates' version of the Violation. Although Mr. Yates, as lead
miner, was paid at the same rate as regular miners CT. 30), it
nevertheless appears that he was in charge of the 4 p.m. to midnight shift, and that he made necessary management decisions and
told the crew what to do CT. 30, 178, 205, 210-211). According
to MSHA Investigator Johnson:
"During the interview with Mr. Yates,
he told me that he was in a lead
miner position, and that he supervised
individuals on the night shift. He had
the responsibility of instructing them
where to work and how to work, he had
the responsibility to see that they put
in a full shift."
CT. 83)
It is concluded that Mr. Yates, at material times, was a
supervisor.
According to Yates, and the subject of important disagreement in the record, he, Jody Booker - and Boyd Hadden - went
back to the mine after the accident "to pick up the outsid.e man. 11
CT. 38). The "outside man" was identified in the record as
Jody Morris CT. 67). Mr. Yates testified that "All three of
us decided to go in and look and see what happened.
I wanted
to go in and see what had happened." 3/ CT. 39). This was at
approximately 5 p.m.
Using Exhibit C-2, a drawing of the mine he rendered during
the hearing to depict the accident scene, Mr .• Yates gave his
version of what constituted the alleged violat"i6n:
A.
Yes, where the work was going on.
Okay, and I seen
that the rock that had killed Donnie was laying there, it
was right approximately two feet from the left rib of the
old drift.
Q.

Okay.

A.
The machine was laying approximately five feet back,
laying down in the bottom of the drift.

ll

This appears to be Mr. Yates' motivation for the violative
conduct.

2316

Q.

Five feet back from the rock?

A.

Yes, from the rock.

Q.

And what machine was that?

A.

That was a jackleg.

Q.

Okay.

And was there a drill nearby or a jack leg

--

A.
Of course it's all hooked together.
The leg and the
machine is all together, and the hoses are hooked to the
machine.
Q.

Okay.

A.
And at that time Boyd picked the machine up and set
it against the left rib, approximately five feet back.
Q.

So he picked up the machine?

A.
We never unhooked the hoses or nothing.
And me and
Jody Booker was right here, to the right rib of the
of where the machine was, right there.
Q.

·How close was the machine to where the actual spot
where Mr. Goode was killed?

A.

It was three to four feet, it was right there.

Q.

And how close did you come to that spot?

A. Probably 15 feet, me and Jody Booker stood right over
here on the right rib.

Q.

You were on the right rib?

A.

Yes.

Q.

About 15 feet?

A.

Uh-huh.

Q.

And what did Mr. Hadden do?

A.
He moved the machine from -- picked it up out of the
drift and set it up against the rib, back from -~ about
five feet back.

2317

Q.

Did he tell you why he was doing this?

A.

To keep from getting buried· right there.

Q.

Do you recall what he said to you?

A.

To keep it from getting hit.

Q.

Okay.

A.

We left the mine.

Q. Okay.
time?

Now, what did Mr. Hadden do then?

How long were you actually in the mine at that

A. Just the time it took to walk 2,600 feet, and we was in
there probably 10 to 15 minutes, and then went back out.

Q. Did either you or Mr. Jody Booker lend any assistance
in moving this machine?
A.

No,' we didn't.

Q.

Can this machine be moved by one person?

A.

Yes.

It's a one-person machine.

Q. All right.
the machine?
A.

And approximately how many feet did he move

I'd say five feet." 4/ CT. 40-42)

Hadden's Version. Boyd Hadden, who was actually present in
the capacity of supervisor CT. 165-167) when the ground fell
on Mr. Goode, denied later returning to the accident scene with
Mr. Yates and Jody Booker CT. 175, 190).
After describing the accident itself in some detail CT. 167172), and the trip from the mine in a Suburban to the place in

!/

See also T. 68-69.

2318

the road where Mr. Goode was transferred to the ambulance,
Mr. Hadden gave this account of what happened:
Q.

Okay.

Did Ted Yates appear on the scene?

A.

Yes, he did.

Q.

When did that happen?

A.

This was shortly after the ambulance showed up.

Q.
And did you have any discussion with Ted Yates, or did
Mr. Luzar, in your presence?

A.
The only-thing I remember saying to Ted was he asked
me what happened, and I said, "A rock fell on him." His
partner jumped in the ambulance, he was -- he -Q.

Who was his partner?

A.

Grady Colby.

Q.

Okay.

A. He offered -- he just volunteered himself without really
speaking, he jumped in and went to work on Donn.ie Goode.
Larry was still there working on him even after he was
transported from the ground into the ambulance.
They was working on him, but Larry had told Ted and
Jody Booker to go shut down the fans, lock it up, and go
home. Gary Woggen and I had the Suburban, and I was the
number one driver of the Suburban.
I took care of it, I
was the mechanics on the job, I was also the bus driver,
I drove the Suburban.

Q.

Were you present then when Larry Luzar gave that order?

A.

Yes, I was.

Q.
Okay. Now, what did you do after that -- I assume the
ambulance left with Donnie Goode?

A.

Yes.

2319 .

Q.

And then what did you do?

A.
I took Gary Woggen home in the Suburban.
I dropped him
off at his house, I turned around at his house, and headed
across town, Doug Taylor stopped me at the Bengal Trailer
Park, asked me what had happened, I said, "Donnie Goode got
hit in the head with a rock." He said, "How bad?" And I
said, "It didn't look very good."
And I was upset, and I went straight home.
Q.

Did you go back to the mine?

A.

No, I didn't.

Q.

Did you move the jack leg?

A.

No, I didn't.

Q.

Did you order anyone else to go in the mine?

A.

No, I didn't.

Q.

Why did Ted Yates -- do you know why --

A.
Ted Yates went in that mine on his own, him and Jody
Booker, just to look to see the scene. What happened there,
there, I don't know.

Q.

How do you know that?

How do you know he went in there?

A. He told me first off, he had told me that he had gone in
and looked at it -- this was later
he had told me that
they had gone in and looked at it.
Not only that, there was a loader outside that they
had taken under and they had parked in the entryway of that
new drift.
That was one dry drift that didn't have a lot
of copper qrsenic leaking in it, which eats still up the
loaders, and that will eat them up. They took that loader
and parked it in there. And whenever we come back the
loader was right there."
(Emphasis supplied)
CT. 172-176)

2320

Credibility Resolutions.
In determining whether Mr. Hadden
returned to the accident scene with Mr. Yates and Jody Booker,
it is to be noted that neither Mr. Booker, Gary Woggan (mentioned
by Mr. Hadden in his testimony), or Jody Morris Ca part-time
mechanic who was left at the mine after the accident) were available as witnesses at the hearing to break the deadlock between
Mr. Hadden and Mr. Yates.
Thus, determination of the issue
rests on whether Mr. Yates' or Mr. Hadden's testimony should be
given the greater weight.
On this record, it is concluded that
Mr. Hadden's testimony that he was not present when Mr. Yates
and Booker went back in the mine should be credited. Mr. Yates'
recollection of events is subject to some question since there
was a significant inconsistency in his testimony.
Thus, he
denied speaking with owner Larry Luzar on the road when Mr. Goode
was transferred to-the ambulance CT. 44-45).
Yet, in the written
statement given to Investigator Johnson (Ex. R-1), he indicated
that Luzar told him, Booker and Hadden "to return to the mine,
lock up the mine and bring the outside man, Jody Morris, down
from the mine." (Ex. R-1; T. 44-46, 66-67, 214-215).
Also, Mr. Yates, at the bottom of his written statement
CR-1) saw fit to give a qualifying wrap to his rendition of the
events constituting the violation:
"It has been a long time since the
accident happened and this is as close to
the way I remember it.
I am being truthful in this statement as I can rember (sic)
it, I am not trying to cause any problems
for anyone. 11
On the other hand, Mr. Hadden's testimony is more convincing
and emphatic, and is more consistent even though he was subjected
to a higher degree of cross-examination at hearing CT. 189-201).
Accordingly, it is concluded that only one supervisor (Mr. Yates)
and Mr. Booker returned to the accident scene. The question next
arises whether the ground conditions they traveled under created
a hazard and whether such had been supported after the accident.
Ground Condition. The accident occurred on a Friday. On the
following Tuesday, March 17, 1987, Dennis J. Tobin, an experienced MSHA inspector, while making an inspection and as he
approached the accident site approximately 2,500 feet into the
drift near the intersection of the old drift - encountered
"a drastic change in ground conditions." (T. 126). He observed
"several intersecting cracks" in the ground conditions and "there
was considerable evidence of fractured ground, not only on the
left-hand rib but overhead." CT. 127). The ground conditions

2321

were so dangerous that Inspector Tobin issued a withdrawal order
which included not only the area of the accident scene but also
included an additional area of 150 feet of ground up to the area
in issue CT. 130-131, 133, 135, 140).
In his accident report (Ex. P-2) Inspector Tobin described
the subject area as follows:
There was evidence of several ground failures the
full length of the new drift. There was an estimated
3-tons of loose piled rock in the vicinity where Goode
was injured. The air and water hose to the jackleg
drill also had been partially buried for a distance of
about 10 feet.
This area was still spalling rock when
the investigation team was examining the scene. There
was no evidence there had been any attempt to support
the ground for the entire 150 feet of the new drift
and fault area. Luzar stated that no one had been in
the mine since the accident.
With respect to the condition of the ground in the subject
area, Mr. Yates testified that when he went back into the area
shortly after the accident he was concerned that other ground
might fall and that "it was dribbling a little." CT. 68). This,
of course, follows on the heels of the fatal ground fall as well
as Mr. Yates' considerable concern (described above} immediately
before the accident that the conditions were "bad."
Supervisor Hadden, also made the concession that in th~
4-6 hours following the accident, the ground conditions would
not have improved:
Q. And did you do anything to improve the ground
conditions in that mine in the next four days?
A.

Absolutely not.

Q.

Okay.

A.

We wasn't working there.

Q. . So the ground conditions were serious enough to kill
Mr. Goode at approximately 2:45 on March 13, 1989; is
that not correct?
A.

Yes, sir.

2322

Q.
Okay.
So you would agree with me then that those
conditions are not going to improve in the next four to
six to eight hours; is that not right?
A.

Absolutely not.

Q. So in the event that Mr. Yates is telling the truth,
and that people actually did go into that accident site,
they went into an accident site where ground conditions
were dangerous.
If what he says is true, you would have to assume
that, would you agree with me on that?
A.
I can't agree with you there, sir, because I don't
agree with what Mr. Yates said to begin with.

Q. I said "assume" that just for the purpose of my
question.
A.
If Mr. Yates went in there then the conditions wasn't
any better, I'll agree.
(T. 182-184)
CONCLUSIONS
Occurrence.
It is therefore concluded from the foregoing evidence that when Mr. Yates and Jody Booker entered the mine and
went to the affected area after the fatal ground fall that, in
terms of the standard, ground conditions were present there that
created a ground fall hazard CT. 86) which had not been taken
down or supported (T. 87).
This constitutes a violation of the
regulation cited. Respondent's contention (Respondent's Brief,
Pgs. 4, 6, 7) that no violation occurred because Mr. Luzar was
unaware that Mr. Yates and Booker went back in the mine and that
such entry was contrary to his instructions is rejected as a
defense. Mr. Yates is a supervisor and Respondent is bound by
his actions, and in any event a mine operator is liable without
regard to fault for the occurrence of a violation. Sec'y. v.
Southern Ohio Coal Company, 4 FMSHRC 1459 (August 1982); Western
Fuels Utah, Inc., 10 FMSHRC 256 (March 1988).
Significant and Substantial.
I further conclude that the violation was significant and substantial CS & S).
A violation is properly designated S & s "if, based upon
the particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

2323

In Mathies Coal Co., 6 FMSHRC 1 (1984), the Commission
listed four elements of proof for S & S violations:
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: 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 the violation; (3) a reasonable likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious nature.
In the United States Steel Mining Company, Inc., 7 FMSHRC
1125, 1129 (1985) the Commission expounded thereon as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984).
We have enphasized that, in accordance with the language
of section 104(d)(l), it is the contribution of a violation to the cause and effect of a hazard that must be
significant and substantial. U.S. Steel Mining Company,
Inc., 6 FMSHRC 1866, 1968 (August 1984); U.S. Steel Mining
Company, Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
It has been previously found that a violation occurred.
On the basis of prior findings I also conclude. that a measure of
danger to safety was contributed to by the violation and there
existed a reasonable likelihood that the hazard contributed to
would result in a serious injury or fatality.
Thus, not only was
the inspector's opinion as to the "significant and substantial"
nature of the violation CT. 85-87) left largely unrebutted, but
the evidence demonstrates that the exposure of two miners to .
the hazardous conditions present occurred within approximately
2 hours of a fatal fall.
Further, the unsafe conditions were
shown to exist after the fall, and that there had been no barring
down CT. 93, 112) or supporting the ground CT. 182) at the time
of or before the exposure of these two miners, Yates and Booker,
to serious injury or death CT. 86-87, 181).
Finally, Mr. Hadden
conceded that the conditions would not have been any better when
Yates and Booker re-entered the area than they were when the
fatal fall occurred CT. 183-184). The four prerequisite burdens
of the Mathies formula are thus found to have been met by the
Petitioner.

2324

Unwarrantable Failure.
In connection with his op1n1on that the
violation resulted from an "unwarrantable failure" of Respondent
to comply with the standard, Inspector Johnson testified:
"Your Honor, I designated this as an
unwarrantable failure violation because
information given to me proved that company
officials knew -- had reason to know that
a violation had existed, that a hazard was
imminent, and they chose to ignore those
conditions, thus endangering the lives of
three more employees." CT. 87)
In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987),
appeal dism'd per stip., No. 88-1019 (D.C. Cir. March 18, 1988),
and Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (December
1987), the Commission held that "unwarrantable failure means
aggravated conduct, constituting more than ordinary negligence,
by a mine operator in relation to a violation of the Act."
This conclusion was based on the ordinary meaning of the term
"unwarrantable failure," the purpose of unwarrantable failure
sanctions within the Mine Act, the Act's legislative history,
and judicial precedent. Whereas negligence is conduct that is
"inadvertent," "thoughtless," or "inattentive," unwarrantable
failure is conduct that is "not justifiable" or is "inexcusable."
From Mr. Yates testimony, we see quite clearly that although he was deeply concerned about the safety of the ground
conditions before the fatal accident and that even though
after the accident he had received instructions from the owner,
Luzar, to lock up the mine and go home, he nevertheless either
took or accompanied a rank-and-file miner, Booker, into the
hazardous area.
Further, knowing that the ground was dangerous
and that a serious accident had just occurred, no precautions
such as barring down or putting up support were taken.
This
conduct was inexcusable and I see no basis for not imputing
to the mine operator this aggravated conduct of its supervisor,
Yates. See Southern Ohio Coal Company, supra; Quinland Coals,
Inc., 10 FMSHRC 705 (June 1988) (where mine foreman's awareness
of dangerous roof conditions was chargeable to the mine operator).
It is therefore concluded that the conduct of Mr. Yates
was properly cited under Section 104(d)(l) as aggravated, and
beyond mere negligence, and that Respondent's non-compliance
with the standard was the result of this unwarrantable failure.

2325

PENALTY ASSESSMENT
This small non-coal mine operator (Ex. C-1, T. 203) had
a history of 2 violations (Ex. P-5) prior to the occurrence of
the subject violation. Petitioner makes no contention that
the violative condition (practice) was not immediately abated
(T. 146) and Respondent makes no contention that payment of
a penalty even at the level initially proposed by Petitioner
($1000) would jeopardize its ability to continue in business
(T. 146).
I have previously found that this was a significant and
substantial violation which resulted from an unwarrantable
failure on the part of Respondent to comply with the standard
cited.
Therefrom it is concluded that this violation was of
a relatively high degree of seriousness which resulted from a
high degree of negligence (unwarrantable failure) on the part
of Respondent's supervisor.
In addition to the exposure of
the supervisor himself to the hazard of serious injury or death
from a ground fall, a rank-and-file miner was also exposed
to such hazard, thus removing the so-called Nacco defense,
3 FMSHRC 848 (April 1981) from applicability to this situation
where the conduct of the supervisor (Yates) was unforseeable.
Wilmot Mining Company, 9 FMSHRC 684 (April 1987); Southern
Ohio Coal Company, supra, fn. 7.
In mitigation of the amount
of penalty to be found appropriate, the record indicates that
this is a small mine, that the owner of the mine immediately
after the accident directed that the mine be shut down, that
the supervisorial employee for some reason disregarded such
instruction, and that apparently all concerned were significantly shaken up by the trauma of the tragic event.
It
also appears that the culpability of the violation was less
than originally gauged by the investigating agency. Thus,
contrary to the. charge in the Citation, l supervisors did not
take a miner into the area of hazard for the purpose, much
less the sole purpose CT. 46, 61-62) of equipment retrieval.
Respondent has previously paid significant penalties arising
out of the fatal accident itself.
In consideration of the
foregoing, a penalty of $400.00 is found appropriate and here
assessed.
ORDER
Citation No. 2636420 is VACATED.
Citation No. 2636419, including the special findings
of "unwarrantable failure" and "significant and substantial"
designated thereon, is AFFIRMED except for the modifications
noted in the "Penalty Assessment" section hereinabove.

2326

Respondent, within 30 days from the date hereof, shall
pay to the Secretary of Labor the sum of $400.00 as and for a
civil penalty for Citation No. 2636419.

~~~~4'. ~ /1 ·

Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:
Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Russell E. Yates, Esq., L.E.L. Construction, P.O. Box 3522,
Durango, CO 81302 (Certified Mail)
/ot

2327

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

SECRETARY OF LABOR,
MINE SAFE'l'Y AND HEALTli
ADMINISTRATION (MSHA) , .
Petitioner

NOV 211989

22041

CIVIL PENALTY PROCEEDING
Docket No. CENT 89-69-M
A.C. No. 34-01287-05507

v.
Haskell County Pit & Plant
HASKELL COUNTY GRAVEL
CO. , INC. ,
Respondent

;

DECISION APPROVING SETTLEMENT
Appearance9,:

Before:

Robert A. Fitz, Esq. , Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
the Secretary of Labor; Jerry Dick, Esq.,
Oklahoma City, Oklahoma, for Respondent.

Judge Broaerick

Pursuant to notice, the above case was called for hearing
in Tulsa, Oklahoma, on November 14, 1989. On the record, the
Secretary reviewed her motion to approve a settlement in the
amount of $5000, which I had denied by order issued October 30,
1989. The record included a written statement from the owner
of Haskell County Gravel, and copies of the company's income
tax returns for 1986, 1987, and 1988.
HasKeil County is a small operator.
It employs 14 or 15
persons and operates a single facility.
Since it began
business in 1983, it has operated as a loss. The tax returns
for 1986 show a loss of $118,521; for 1987 a loss of $111,290;
and for 1988 a loss of $171,516. The owner states that
Respondent's performance will improve somewhat in 1989, -but
it could still operate at a loss. The evidence submitted
snows that the proposed penalty may have an adverse effect on
Respondent's ability to continue in business.
I have considered the motion in the light of the criteria
in section llO(i) of the Act, and conclude that it should be
approved.
Accordingly, the settlement is APPROVED and, Respondent
is ORDERED TO PAY the sum of $5000 within 30 days of the date
of this oraer.

.

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(/- James A. Broderick
Administrative Law Judge

2328

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

. NOV 211989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 88-287
No. 36-05466-03654

A~C.

v.
Emerald No. 1 Mine
CYPRUS EMERALD RESOURCES
CORPORATION,
Respondent
DECISION
Appearances:

Susan M. Jordan, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll,
Pittsburgh, Pennsylvania, for the Respondent.

Before:

Judge Koutras
statement of the Case

This proceeding concerns a proposal for assessment of civil
penalty fi1ed by the petitioner against the respondent pursuant
to section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820(a), seeking a civil penalty assessment of
$105 for an alleged violation of mandatory safety standard
30 C.F.R. § 75.517, as stated in a section 104(a) "S&S" Citation
No. 3096605, issued on May 27, 1988. The respondent filed a
timely answer and notice of contest, and a hearing was held in
Washington, Pennsylvania. The parties filed posthearing briefs,
and I have considered their arguments in the course of my adjudication of this matter.
Issues
The issues presented in this proceeding are (1) whether the
condition or practice cited by the inspector who issued the
citation constitutes a violation of the cited mandatory safety
standard, (2) the appropriate civil penalty assessment for the
violation, taking into account the civil penalty·criteria found

2329

in section llO(i) of the Act, and (3) whether the violation was
"significant and substantial" (S&S). An additional issue of
interpretation raised by the respondent concerns the meaning of
the phrase "shall be insulated adequately and fully protected" as
stated in the cited standard section 30 C.F.R. § 75.517.
Applicable Statutory and Regulatory Provisions
The Federal Mine Safety and Health Act of 1977;
1.
Pub. L. 95-164, 30 u.s.c. § 801 et seq.
2.

Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i).

3.

30 C.F.R. § 75.517.

4.

Commission Rules, 29 C.F.R. § 2700.1 et seq.

Stipulations
The parties stipulated to the following (Tr. 4-7):
1. The subject mine is owned and operated by the
respondent, and it is subject to MSHA's jurisdiction.
2. The presiding judge has jurisdiction to hear
and decide this matter.
3. The citation was properly served on the
respondent by a duly authorized MSHA representative.
4. The respondent's annual coal production is
approximately 1.8 million tons, and the respondent is a
large mine operator.
5. The respondent's history of prior violations
is stated in an MSHA computer print-out, (exhibit G-5).
6. The proposed civil penalty assessment for the
alleged violation will not adversely affect the respondent's ability to continue in business.
7. The alleged violation was timely abated in
good faith by the respondent within 5 minutes of the
issuance of the citation.
Petitioner's Testimony and Evidence
MSHA Inspector Charles Pogue confirmed that he inspected the
mine on May 21; 1988, and issued the citation citing a violation
of section 75.517, because the power cable for the light switch
block indicator was not protected at the point where the power
cable crossed over the trolley wire. Mr. Pogue explained that

2330

the respondent had put a piece of conduit over the cable where it
crossed the trolley wire, but for some unexplained reason the ·
conduit had slipped down the cable away from the trolley wire,
thus resulting in a lack of protection for the.cable at the
location where it crossed over the trolley wire.
Mr. Pogue stated that the cable in question was located on
the main track haulage used to transport crews into the mine
working sections, and that supply trips, the safety department,
and maintenance and ventilation jeeps also used the haulageway.
The cable in question was used to supply power to the signal
lights used to control vehicle traffic using the haulageway (Tr.
13-16).
Mr. Pogue described the cable as a four-conductor cable
approximately one-half inch in diameter which was hung on insulators as it exited the non-metallic switch box and crossed over
the trolley wire to the coal rib. He confirmed that the cable
was protected by an outer insulating jacket, and that each power
conductor'inside the cable was individually insulated. The outer
insulating jacket was approximately one-sixteenth of an inch
thick (Tr. 17).
Mr. Pogue stated that he cited a violation of section 75.517
because the conduit placed over the insulated cable was away from
the point where the cable crossed over the trolley wire. He
confirmed that the cable met MSHA's insulation specifications,
but since the conduit which served as a guarding device had
slipped away, he did not consider the cable to be "fully protected" as required by section 75.517. The citation was abated
by simply rotating the conduit guarding so that it covered the
cable where it crossed over the trolley wire (Tr. 18}.
Mr. Pogue described the conduit guarding as plastic insulating material approximately 3 inches in diameter, and stated that
it slid down the cable for a distance of 6 to 12 inches away from
the point where the cable crossed the trolley wire (Tr. 19}.
Mr. Pogue stated that section 75.517 requires the cable to
be fully protected, and that MSHA's policy manuals require that
power cables crossing a trolley wire has to have additional
guarding over the cable to prevent damage to the outer jacket
(Tr. 19, exhibits G-2 through G-4). He confirmed that the policy
requirement has been in effect since he began inspecting mines in
1975, and probably earlier '(Tr. 21). The purpose of this
requirement is to provide additional protection to the cable and
to prevent damage from equipment passing under it (Tr. 22).
Mr. Pogue stated that he was concerned over a possible
electric shock or electrocution hazard presented by contact with
the energized power cable, and that these are the type of accidents or injuries that he would expect from the cited condition

2331

(Tr. 22). This could occur if a trolley pole on a piece of
haulage equipment such as a transportation jeep passing under the
cable came off the trolley wire and struck the cable and possibly
cutting the outer cable insulation or conductors. If this
occurred, and the damaged .cable fell on the energized trolley
wire, it could cause the electrical light block circuit to become
energized. Even though the light block had short circuit protection, if someone were performing maintenance work on the circuit
control box he could come in contact with energized power wires
as a result of the cable touching the trolley wire (Tr. 23-24).
Mr. Pogue stated that the likelihood of an accident such as
the one he described would be increased because the main haulageway is a highly traveled area, and the frequency of trolley poles
hitting the cable would be increased. Mr. Pogue explained the
various ways that a trolley pole could come off the wire and
strike the cable. He described the equipment using the haulageway, and indicated that 7 out of 10 vehicles passing under the
power cable in question would be equipped with trolley poles.
Based on his experience, trolley poles frequently come off the
trolley wire, and this could be caused by excessive vehicle
speed, a bend in the trolley wire, or inadequate spring pressure
on the pole. He confirmed that the trolley wire and power cable
in question were both energized at the time he observed the cited
condition (Tr. 25-29).
On cross-examination, Mr. Pogue stated that the power cable
crossed straight across the trolley wire, and that one would
normally slow down in order to reach up and turn the light on or
off. He confirmed that the distance from the mine floor to the
roof was 8 feet, and that abatement was simply achieved by sliding the protective conduit back over the cable. The power cable
was an MSHA approved cable, and there was no damage to the outer
sheath (Tr. 31-32).
Mr. Pogue stated that MSHA's policy only requires that a
power cable be guarded above the trolley wire, and there is no
policy guideline as to the distance that such a power cable must
be protected on either side of the trolley wire (Tr. 34). He
confirmed that the cable in question was provided with fuse
protection, and that the outer cable insulated jacket, as well as
the insulating material around the four interior cable conductors, would have to be damaged in order to present a shock
hazard.
Further, if this damage were-to occur, someone would
have to reach up and over the trolley wire and grab the cable in
order to be exposed to a shock hazard.
If someone were working
on the light, they may be able to see if the cable is touching
the trolley.wire (Tr. 34-35).
In response to a question as to whether the policy language
which states "in some locations metal or non-metallic conduit may
be necessary for additional protection against damage," indicates

2332

some discretion rather than an absolute requirement, Mr. Pogue
responded "not on my part" (Tr. 40).
Mr. Pogue confirmed that the conduit did not cover the
entire length of the power cable from the trolley wire to the
electrical light, and even though a trolley pole corning off the
trolley wire could damage the cable between the electrical light
box and the end of the protective conduit, he nonetheless in his
judgment believed that the conduit which was on the cable sufficiently protected it (Tr. 41).
Mr. Pogue stated that the hazards he described assumes that
anyone working on the signal light will not notice the power
cable in contact with the trolley wire, and that while working on
the energized circuit, the person doing the work will not turn on
the light switch to see whether it was energized or not (Tr. 42).
He also confirmed that it is possible that a trolley pole will
never come off the trolley wire while equipment is travelling
along the entire haulagewa:ys, ·and that the area where the light
was located was reasonably flat (Tr. 44).
In response to further questions, Mr. Pogue stated that the
power cable was approximately 6 inches above the trolley wire at
the point where it crossed over the wire, and that the power
cable voltage was 12 volts, and the trolley wire 300 volts (Tr.
45) .
Mr. Pogue believed that each of the examples stated in
MSHA's policy with respect to protection for power cables crossing over trolley wires are mandatory and that he has no discretion to make individual judgments to determine whether or not any
particular circumstances would require such additional guarding
(Tr. 48--49) .
Mr. Pogue surmised that the conduit slipped down the power
cable because of equipment vibration or equipment striking the
cable. He conceded that the cable was protected before the
conduit slipped, and that the respondent made an effort to guard
the cable (Tr. 54-56).
Respondent's Testimony and Evidence
Gary W. Bochna, respondent's safety representative, confirmed that he accompanied Inspector Pogue during his inspection.
He stated that the distance from the mine floor to the roof at
the cited location was 7-1/2 to 8 feet, and that the trolley wire
was approximately 12 inches below the roof.
He confirmed that he
observed no damage or abrasions to the cable, and that the track
haulage area in question was mostly level (Tr. 57-59).
Mr. Bochna explained the function of the signal light and
located it on the mine map. He. also explained the direction of

2333

the haulageways, and the haulage equipment passing through the
location of the cited cable (exhibit R-1, Tr. 60-63).
Mr. Bochna stated that it would be impossible for someone to
contact the power cable "unless you reached up to it," and that
someone would likely contact the trolley wire before reaching the
power cable. He conceded that trolley poles occasionally come
off the trolley wire, but believed that the pole would have to
strike the cable "almost straight on" with a considerable amount
of force in order to damage it to such an extent that the insulating wires inside the outer sheath would be penetrated. He did
not believe that the pole would damage the cable by simply rolling over it (Tr. 64-65).
On cross-examination, Mr. Bochna agreed that a trolley pole
could cause an abrasion or minor damage to a cable, and that it
was possible for a trolley pole to pull a power cable down if it
jumped the trolley wire. He also agreed that if a power cable
was damaged to th_e extent that the outer jacket and inner insulation were damaged, the cable could become energized through the
live trolley wire if the cable were laying on the wire (Tr.
67-68). He confirmed that the mine has a practice of providing
additional protective conduit in the places where the cable
passes over the trolley wire "because we've been cited on it
before" and_"to k~ep from getting citations" (Tr. 68).
In response to further questions, Mr. Bochna stated that if
a trolley pole came off the trolley wire it could just as well
strike the protective conduit guarding, and the pole could also
hook the guarding as well as the cable. He stated that in his
driving experience "I don't have that much problem of them coming
off for me" (Tr. 71).
Terry W. Coss, electrical engineer, stated that he has
worked for the respondent in this capacity for 11 years, and that
he is a certified electrician, and has a degree in electrical
engineering from Ohio University, as well as MSHA certifications
as a qualified electrician and electrical instructor. He also
serves on an advisory committee for the Pennsylvania State
Department of Environmental Resources, which includes the director of MSHA's Bruceton Research Center, an MSHA District Manager,
and a representative from Penn State University, Consolidation
Coal Company, the UMWA, and the Pennsylvania director of the
Bureau of Deep Mine Safety. The purpose of the committee is to
advise this bureau on electrical and non-electrical ~~oblems (Tr.
78-80).
Mr. Coss confirmed that he was familiar with the citation
issued by Mr. Pogue, as well as the power cable in question, and
he described the cable, its insulation features, and its functions. He confirmed that the cable is rated for 600 volts, and
since it was only handling 300 volts, it was designed to handle

2334

more voltage than it was actually being used for. He also confirmed that the insulation on each of the individual cable conductors is rated for 600 volts, and that the outer cable jacket
is approximately three-sixteenths of an inch thick. The jacket
provides protection for the insulated conductors and it is constructed of a tough neoprene rubber compound (Tr. 80-83).
Mr. Coss stated that the light switch in question has a
3 amp fuse short circuit protection which provides more protection than MSHA' s 2.0 amp fuse protection requirement. He confirmed that the power cable is located 7 feet above the mine
floor, and that one would have to reach up to contact it (Tr.
84) .
Mr. Coss stated that if the outer cable sheath were damaged
and the individual inner wire conducter insulation was not, there
would be no shock hazard to someone contacting the cable. Similarly, if the cable contacted the trolley wire, nothing would
happen because the conductors are rated at 600 volts and the
trolley wire is only 300 volts (Tr. 84-85).
Mr. Coss confirmed that he has operated trolley vehicles
underground, and that the height of the trolley wire would affect
the force exerted on the pole striking the cable. If the cable
is high, the trolley pole would strike it with lesser force than
if it were lower (Tr. 86). He did not believe that it was likely
that anyone on the ground would contact the cable above the
trolley wire, and based on his experience, the outer cable sheath
provides adequate protection for the power wires within the cable
where it crosses over the trolley wire because it is a tough
compound, and the likelihood of striking it is remote (Tr. 88).
Mr. Coss stated that the additional conduit is not required
to provide full protection to the cable where it crosses over the
trolley wire, and that the reason conduit is provided at the mine
is "to keep from getting wrote up" (Tr. 88). He confirmed that
he has observed a conduit protected cable which was struck by a
trolley pole, and that it pulled out the wires at the switch
rather than cutting the cable (Tr. 89).
Mr. Coss stated that the power cable safety ground wire is
tied to the haulage track and the frame of the light switch. If
any of the other wires were to touch the switch frame, it will
ground and remove the power or blow the fuse (Tr. 89-90).
On cross-examination, Mr. Coss stated that the trqlley poles
are 5-1/2 to 6 feet long and are mounted on different places on
the track equipment (Tr. 90). With respect to MSHA's position in
this case, Mr. Coss stated as follows (Tr. 96):
THE WITNESS:
If you put conduit on here, there's less
a chance of it getting damaged. Now, if you put a

2335

~our-inch

I-beam across there, there's even less of a
chance of getting damaged. But, you know, to what
point do you go, and I don't feel that the extra protection that the conduit gives you is necessary, weighing the fact of the jacket and the possibility of it
happening.
JUDGE KOUTRAS: Do you think that particular jacket
that's inherently a part of that cable as manufactured,
protects it against physical damage that conceivably
could happen where it's hung in the mine?
THE WITNESS:

Yes, sir.
Discussion

The contested section l04(a) "S&S" citation No. 3096605,
issued by Inspector Pogue on May 27, 1988, citing an alleged
violation of 30 C.F.R. § 75.517, states as follows (Exhibit G-1):
"The light switch-power cable was not adequately protected where
such cable passed over the energized trolley wire at the No. 1
haulage Bohan Blvd. light switch."
Mandatory safety standard 30 C.F.R. § 75.517, provides as
follows:
"Power wires and cables, except trolley wires, trolley
feeder wires, and bare signal wires, shall be insulated adequately and fully protected."
MSHA's policy interpretation and application for the insulation and protection of power wires and cables is stated in pertinent part in its underground manuals of March 9, 1978, June 1,
1983, and July 1, 1988, (exhibits G-2 through G-4), as follows:
Any ungrounded power conductor extending from the track
entry for any purpose shall be insulated. In addition,
power wires and cables shall be installed under. well
supported roof and far enough away from any moving
equipment to prevent damage; however, in some locations, metal or nonmetallic conduit may be necessary
for additional protection against damage. Examples of
these locations include: where power wires or cables
other than trolley feeder wires cross the trolley wire;
where power wires or cables pass through doors or
stoppings; where power wires or cables are installed
along supply storage areas; where power wires or cables
are installed on tight corners with insufficient clearance;. or other areas where power wires or cables cannot
be isolated sufficiently to afford protection.
(Emphasis added) .
The facts in this case establish that the cited light switch
power cable was provided with an additional protective conduit

2336

which was installed over the outer jacket of the cable where it
passed over the trolley wire. The conduit had slipped off to one
side, and the citation was abated within 5 minutes when the
conduit was rotated back and over the cable.
Respondent's Arguments
Respondent disputes the petitioner's contention that mandatory standard 30 C.F.R. § 75.517 requires additional power cable
protection, such as a conduit, beyond that provided by the outer
jacket of the cable. Respondent takes the position that on the
facts of this case, no protection beyond that afforded by the
outer jacket of the power cable is necessary. Respondent points
out that section 75.517, does not specify the meaning of the term
"fully protected," and that section 75.517-1 and 75.517-2, which
help to define the term "adequate insulation," provide no guidance as to the meaning of "full protection." Respondent takes
the position that since it is unclear whether a different level
of protection is to be provided because of the use of the adjective "full" as opposed to "adequate, it may rely on the principle
of statutory construction that one term may be defined by terms
it is associated with, and that the use of "full" is equivalent
to the use of "adequate." Respondent notes that if a different
meaning of "full" is determined to be intended, it clearly would
mean protection of the cable over its full length.
In such an
instance, respondent suggests that no violation would exist
because there is no dispute that the cited power cable was protected along its entire length by the outer cable jacket provided
by the manufacturer.
In support of its case, the respondent cites the
Commission's decisions in Homestake Mining Co., 4 FMSHRC 146
(February 1982), and Climax Molybdenum, 4 FMSHRC 159 (February
1982). The Homestake Mining case concerned an issue as to
whether a metal/non-metal standard (57.12-82), could be construed
to require additional insulation beyond that provided by the
manufacturer. The standard required that "power lines shall be
well separated or insulated from waterlines, telephone lines, and
air lines." Despite the fact that an MSHA interpretative mem9
had interpreted the standard to require insulation beyond the
jacket provided by the manufacturer, the Commission held that a
blanket requirement of additional insulation was not appropriate,
and it stated as follows at 4 FMSHRC 148-149:
We recognize that enforcement of the standard would be
simpler if an inspector merely has to visually determine whether extra insulation has been added where
power cables and pipelines meet. We fail to see,
however, how this superficial examination bears any
relationship to the purpose of the standard. Rather,
in order to make a bona fide determination that insulation adequate to prevent the transmission of current to

2337
··------------

adjacent pipelines is present, the adequacy of the
added insulation must be evaluated, and this determination must be based on the objectively determinable
character of the powerline and the existing insulation.
In order to achieve the purpose of the standard,
enforcement should not turn on the subjective evaluation of an inspector, without the objective evaluation
of whether a hazard is or may be present. Further,
section 57.12-82 does not state that "additional insulation" must be placed between "powerlines" and pipelines; it merely requires separation or insulation.
In the instant case, the respondent points out that Inspector Pogue issued the citation based solely upon his observation
that the conduit previously installed over the power cable where
it passes over the trolley wire had slipped off to one side of
the trolley wire and upon his belief that MSHA's policy manuals
imposed a mandatory duty on operators to provide additional .
protection against physical damage to power lines which pass over
trolley wires in all circumstances. Respondent maintains that
the inspector's interpretation of the MSHA manuals as imposing a
mandatory obligation to provide additional protection when power
cables cross over trolley wires is incorrect. In support of its
argument, respondent cites the following language found in MSHA's
manual policy:
"[IJn some locations metal or nonmetal conduit
may be necessary for additional protection against damage."
(Emphasis added) •
Respondent argues that the cited policy language clearly
does not describe a mandatory duty to have the additional protection of a conduit in all cases since the policy states that
conduits may be necessary in some locations. Thus, respondent
concludes that MSHA's official policy interpretation would appear
to be similar to that expressed by the Commission in Homestake
Mining and Climax Molybdenum.
Respondent takes the position that there is no mandatory
requirement under the Act that conduit be used in all cases, and
since MSHA's policy manuals do not impose such a mandatory obligation, respondent argues that it was incumbent upon MSHA in this
case to prove that the power cable was not fully or adequately
protected. Respondent asserts that MSHA failed to put on any
evidence to establish that the power cable was not adequately
protected from physical damage. Instead, it relied solely upon
Inspector Pogue's interpretation that the poiicy manuals require
additional protection in all cases. Respondent notes that the
inspector was not an electrical inspector and offered no testimony of a particular expertise or training in this area.
Respondent maintains that it presented credible and
unrebutted testimony that the cited power cable is adequately
protected from physical damage by the manufacturer.
It points

2338

out that the cable is enclosed in a Neoprene rubber outer jacket
approximately three-sixteenths of an inch thick, and that
Neoprene rubber is a tough compound. Respondent also cites the
testimony of its electrical engineer, who has 11 years experience
at the mine, who testified that bhe Neoprene outer jacket of the
cable, as manufactured, protects the cable against physical
damage ·that conceivably could occur where it is used in the mine.
The respondent argues that in this case, because of the
remote possibility that a trolley pole will come off the trolley
wire where the power cable crosses it and cause some damage to
the cable, there is no need for any additional cable protection
other than the manufacturer's outer cable jacket. Respondent
states that damage to the power cable by a trolley pole is
unlikely because vehicles traveling on the tracks in this area
must move slowly or stop in order to operate the light switch
connected to the power cable making it less likely that the pole
would come off the wire, the floor of the mine is relatively flat
in this area, and trolley poles are less likely to come off the
trolley wire in flat areas. Respondent further points out that
there are no bends in the trolley track in this area, which again
reduces the possibility of the trolley pole coming off the
trolley wire, the roof is high in the area, which means there
would be less tension on the trolley pole, which would result in
a less severe impact if the pole were to jump off the trolley
wire and strike the roof or the power cable. Respondent also
points out that since the end of the trolley pole is blunt, it is
unlikely that it would cut the neoprene outer jacket of the power
cable if the pole should strike the cable.
Additionally, respondent points out that the track in question· does not lead to active areas of the mine, and that traffic
past the power cable is relatively light.
Cdnsidering all of the
aforementioned factors, including the fact that the outer jacket
of the cable is designed by the manufacturer to provide protection from physical damage, the respondent concludes that it is
obvious that additional protection from physical damage to the
cable is not necessary.
Respondent argues further that its position that the cable
outer jacket is adequate to provide protection from physical
damage is also supported by MSHA's policy manuals, which provide
as follows:
"The outer jacket of a cable is intended to protect
the internal conductors from cuts, abrasion moisture, etc., and
must be intact for the cable to be fully protected as required by
Section 75.517."
(G-3, p. 3, G-4, p. 4; Emphasis added.)
Respondent concludes that the cited policy statement evidences MSHA's own interpretation that the "fully protected"
requirement of section 75.517 can be satisfied by an undamaged
outer jacket, and it points out that the outer jacket of the
power cable in question was not damaged.

2339

Respondent finds further support for its position that the
undamaged outer jacket of the power cable satisfies the requirement of full protection in MSHA's Underground Electrical Inspections Manual (Exhibit G-4), which explains when a violation
should be cited under section 75.517. The manual states as
follows:
The outer jacket of a cable is intended to protect the
internal conductors from cuts, abrasion, moisture,
etc., and must be intact for the cable to be fully
protected as required by Section 75.517. Therefore, if
an inspector observes a cable with a damaged outer
jacket, even though the insulation on the conductors
has not been damaged, he should take appropriate action
under Section 75.517 stating that the cable was not
fully protected.
·

*

*

*

*

*

*

*

When Section 75.517 is cited, the inspector should
specify one of the following in the citation:
1. The insulation was not adequate (i.e., the
insulation on the conductor is either damaged or
missing) ;
2. The cable was not fully protected (i.e., the
outer jacket on the cable is either damaged or
missing) ; or
3.

Both conditions exist on the cable.

Respondent maintains that the quoted manual policy statement
clearly indicates that MSHA considers a power cable to be fully
protected by the manufacturer's outer jacket if it is undamaged.
Although recognizing the fact that MSHA's policy manuals do
provide that additional protection may be required in some cases,
the respondent argues that in this case the petitioner has failed
to present evidence sufficient to establish that additional
protection was required for the cited cable in question, and has
therefore failed to establish a violation of section 75.517.
Petitioner's Arguments
Petitioner concedes that the cited light switch power cable
was adequately insulated. However, it takes the position that
the cable was not "fully protected" as required by the cited
mandatory standard, 30 C.F.R. § 75.517, and MSHA's policy interpretations of this standard.
·

2340

Petitioner argues that it has consistently interpreted
section 75.517, to require protective conduit or guarding on
power cables where it passes over trolley wires because cables in
this position are subject to abuse from the different kinds of
equipment travelling down the haulageway.
Petitioner asserts
that its primary concern is the prevention of damage from the
trolley poles of equipment using the haulageway, and that the
additional guarding requirement prevents damage to the cable from
trolley poles which are known to jump off the trolley wire
because of the spring tension on the pole. The guarding also
provides protection against cable abuse which occurs over time
through abrasions or the striking of the cable by trolley poles
and other large pieces of equipment.
Recognizing the fact that the express ianguage of a promulgated regulation would control over its inspection manual, petitioner nonetheless argues that its manual interpretation of
"fully protected" is consistent with the broad language found in
section 75.517, and absent other available guidance regarding the
term "fully protected," it takes the position that its policy
interpretation should be accorded deference and legal effect.
Petitioner finds no merit in the respondent's argument that
section 75.517, applies only to electrical and not physical
protection.
Petitioner argues that the obvious purpose of the
standard is to protect miners against shock, electrocution, and
fire that could result from inadequate insulation or protection
of the power cable, and that in order to protect against these
hazards, a cable must be protected electrically and physically.
Petitioner points out that since the standard does not distinguish between electrical and physical protection, and since no
other standard specifically addresses physical protection, it;
applies to protection in general, including both physical and
electrical protection.
Recognizing the fact that the "may be necessary" language
contained in its policy statements suggests discretion as to the
location where additional conduit protection should be provided,
and that Inspector Pogue testified that he believed he had no
discretion insofar as the location examples listed in the policy
are concerned, petitioner submits that the examples listed would
also fall within the locations where "metal or nonmetallic conduit may be necessary." Petitioner concludes that the listed
examples are clearly locations where power cables are more likely
to be subject to abuse, and they are therefore strong statements
that extra care needs to be taken in these locations to guard
against cable damage and injuries to miners. Given the fact that
the cited cable passed over trolley wire in a highly travelled
haulageway used by miners and equipment going into and out of the
working sections, petitioner submits that the cited location is
one where cable conduit protection is necessary, rather than one
where it "may be necessary."

2341

Findings and Conclusions
Fact of Violation
Inspector Pogue confirmed that the cited power cable was
adequately insulated, met the requirements of MSHA's standards
for such cables, and that it complied with the "adequate i'nsulation" requirement found in section 75.517. The parties are in
agreement that this was the case. However, in view of the fact
that the additional protective plastic conduit placed over the
cable had slipped down and away from the cable at the point where
it crossed over the track trolley wire, the inspector found that
the cable was not "fully protected" as required by section
75.517. Although the inspector's original description of the
cited condition on the face of the citation stated that the cable
was not "adequately protected," I find that his explanation as to
why he issued the citation provides sufficient notice to the
respondent to enable it to defend the citation, and the respondent has not suggested that the citation is deficient or otherwise unclear.
The cited mandatory section 75.517, which is a statutory
standard, does not explicitly require the use of any additional
conduit protection over the protective outer cable jacket provided by the cable manufacturer. This additional requirement has
been imposed by MSHA through its policy interpretations published
in a general policy manual, as well as in the instructional
policy guidelines found in the inspection manuals (Exhibits G-2, G-3, and G-4).
Although the mandatory standards that follow
section 75.517, sections 75.517-1 and 75.517-2, help to define
the term "adequate insulation," they provide no guidance with
respect to the meaning of "fully protected, and MSHA's policy
guidelines are likewise devoid of any meaningful guidance.
The respondent's assertion during the hearing that the
requirement that power cables be "fully protected" refers only to
ele.ctrical protection rather than protection from physical damage
is rejected.
I take note of the fact that section 75.517, does
not distinguish between electrical and physical protection.
It
simply requires that power cables be adequately insulated and
fully protected.
In my view, the intent of the standard is to
require protection for power cables in order to preclude those
electrical hazards normally associated with inadequate cable
insulation, i.g., shock, electrocution, and fires, as well as
protection from these same hazards which may result from the
exposure of such cables to potential physical damage or abuse by
virtue of the location where such cables may be installed and
used.
In my view, although an adequately insulated power cable
may afford protection against such hazards, and be_ in compliance
with the "adequate insulation" requirement found in section
75.517, if it is located in a mine area, or installed and used in

2342

such a manner as to expose it to potential damage and abuse from
equipment, thereby destroying its insulating qualities, it may
not be in compliance with the "fully protected" requirement found
in section 75.517.
I conclude and find that section 75.517, applies to power
cable protection in general, including both electrical and
physical protection.
I further conclude and find that the
standard imposes two requirements for the protection of power
cables. The first requirement is that the cable be "adequately
insulated" as that term is defined in sections 75.517-1,
75.517-2, or as required by any other applicable power cable
insulation standard. The second requirement is that a power
cable be "fully protected" against any physical damage which may
result in the course of the use of the cable at the particular
location where it may be installed.
If MSHA believes that additional cable protection is
required at certain specified locations in an underground mine
where the cable may be exposed to physical damage by equipment,
it should promulgate an appropriate mandatory standard clearly
defining those areas.
In my view, the "examples" noted in the
policy are intended to make an inspector aware of certain
restricted and confined mine areas where the location of a power
cable would most likely expose it to potential damage and abuse
·by being struck by a piece of equipment. The policy also
includes a statement which implies that additional conduit protection would not be necessary if the power cable were suff iciently isolated to afford it protection. Although the policy
contains no explanation as to why the particular examples in
question are cited, I assume that a power cable passing through
doors or stoppings may expose the cable to chaffing or cutting,
that a cable installed along supply storage areas will expose it
to damage from the materials stored in such areas, and that
cables installed on tight corners with insufficient clearance
will expose it to damage passing through such areas. However, in
each of these instances, I believe it is incumbent on MSHA to
establish through credible and probative evidence that a cited
power cable located in any of these locations is in fact exposed
to physical damage and is not fully protected against such
damage.
I take note of the fact that MSHA's policy declarations
found in the March 9, 1978, inspection manual, exhibit G-2,
contain no explanation as to why a trolley wire location was
included among the locations cited as examples where additional
conduit protection may be required. The stated policy indicates
that such additional conduit protection is required where a power
cable crosses a trolley wire or where a power cable is installed
within 12 inches of a trolley wire. The 11 12 inches" policy
interpretation does not appear in MSHA's policy manual of July 1,
1988, or in the inspection manual of June 1, 1983, exhibits G-3

2343

and G-4, and the interpretation simply refers to a power cable
crossing a trolley wire. Although the inspection manuals contain
rather detailed instructions to an inspector as to how to go
about issuing citations for violations of section 75.517, because
of inadequate insulated power cables, they contain no guidance
concerning the question of "fully protected," and simply cite
examples of locations where additional conduit protection may be
required, with no explanations.
Insofar as trolley wire locations are concerned, I find
nothing unreasonable in MSHA's desire to insure that a power
cable located in close proximity to a trolley wire is protected
against any physical damage which may result from a trolley pole
coming off the trolley wire and striking the cable. As a matter
of fact, respondent's safety representative Bochna conceded that
depending on the force exerted by a trolley pole in striking a
power cable, it was possible to penetrate the outer protective
sheath of the cable. He also confirmed that a trolley pole
striking a cable could cause cable abrasions or "minor damage,"
and that in the event the cable was damaged to the extent that
the outer jacket and inner insulation were damaged, the cable
could become energized through the live trolley wire if the cable
was in contact with the trolley wire. He also confirmed that a
trolley pole could pull a power cable down if it jumped the
trolley pole. Respondent's electrical engineer Coss confirmed
that with the additional conduit protection, the chances of cable
damage would be lessened, and he stated that he was aware of an
incident where a power cable protected by conduit was struck by a
trolley pole, and although the cable was not cut, the wires at
the switch box were pulled out by the striking action of the pole
against the cable.
Although it may be true that a properly insulated power
cable provided with a tough neoprene outer protective jacket may
provide adequate protection against normal "wear and tear" and
physical contact with equipment or other objects in an underground mining environment, it is not unusual for such cables to
be subjected to cuts, scuffing, abrasions, etc., which may or may
not be readily visible, or to internal damage which may not be
readily observable by a cursory inspection.
If such damage were
to occur over time, and remained undetected, it could conceivably
damage the integrity of the cable and render the insulation
qualities of the outer neoprene protection jacket useless,
thereby presenting a potential electrical hazard. ' In such a
situation, I believe that one may reasonably conclude that the
cable was not fully protected. However, in order to support a
violation of section 75.517, it would be incumbent on MS~A to
advance some credible and probative evidence to support such a
finding, and it may not simply rely on the fact that an inspector
found a power cable crossing over a trolley wire.

2444

Although I agree with the respondent's analytical analysis
of the Commission's holdings in the cited Homestake Mining
Company and Climax Molybdenum Company, decisions, supra, I take
note of the fact that in the Homestake Mining Company case, the
policy interpretation relied on by MSHA imposed a blanket mandatory requirement that additional powerline insulation other
than that required by the cited standard in question be used.
The policy included a finding by MSHA that the protective powerline jacket provided by the manufacturer was inadequate per se,
and it also included MSHA's own policy definition of the additional insulation required for compliance, which the Commission
found to be essentially meaningless.
In the instant case, MSHA's
policy statements are a veiled attempt to impose a mandatory
blanket requirement for additional protective conduit in all
cases where a power cable crosses over a trolley wire, and the
inspector obviously construed the policy as a mandate to issue a
citation for a violation of section 75.517, in all instances
where he may find a power cable crossing over a trolley wire.
I
agree with the respondent's assertion that MSHA's policy statements that additional conduit may be necessary in some locations
does not impose a mandatory obligation or duty to have the additional conduit protection in all cases.
I find that this
language is discretionary and permissive, rather than mandatory,
and that the prevailing circumstances should dictate whether or
not additional cable protection may be necessary to satisfy the
"fully protected" requirement found in section 75.517.
I conclude and find that in order to support any finding
that a power cable is not fully protected in violation of section
75.517, an inspector must, on a case-by-case basis, make an
objective evaluation of all of the circumstances presented,
including the use to which the power cable is being put, its
condition, the location and distance from equipment or other
physical objects which may reasonably expose it to physical
damage, its proximity to miners who are required to work or
travel in the area, and any other relevant factors which may
support a reasonable conclusion that the cable is located and
utilized in such a manner as to expose it to physical damage.
Reliance by an inspector on the mere location of the cable listed
among unexplained policy "location examples" is insufficient, in
my view, to establish a violation.
If an inspector followed the
literal language of MSHA's policy, as the inspector did in this
case, without any evaluation of all of the circumstances presented, he could issue a citation simply because the power cable
crossed over a trolley wire, even though the cable passed any
number of feet over the trolley wire and could never conceivably
come into contact with the trolley wire.
Such an interpretation
and application does little to foster mine safety, and simply
encourages litigation.
The respondent is correct in its assertions that MSHA's own
section 75.517 policy statements and interpretive guidance for

2345

its inspectors to follow clearly indicates that MSHA considers an
undamaged power cable to be "fully protected" pursuant to this
standard. However, the respondent's suggestion that a power
cable is inherently fully protected by the manufacturer's outer
protective tough neoprene jacket and meets the "fully protected"
requirement of section 75.517, in all cases and in all circumstances where the cable may be located is rejected. As noted
earlier, I have concluded that such cables are subject to damage
and that any determination as to whether or not they are fully
protected must be made on the basis of all of the facts presented
and not simply the location of the cable.
The petitioner takes the position that the cable at issue in
this case passed over a trolley wire at a highly travelled
haulageway used by miners and equipment going into and out of
working sections, and that this fact makes the location one where
conduit is necessary for additional protection, rather than a
location where conduit may be necessary. Respondent takes the
position that the inspector based the citation on his observation
of the power cable passing over the trolley wire, and his belief
that MSHA's policy manuals imposed a mandatory duty on him to
issue a citation in all cases where such a cable is not protected
by additional conduit. Respondent also takes the position that
it has presented credible evidence that the facts and circumstances presented in this case support a finding that the cable
was fully protected against any possible physical damage, and
that MSHA's own policy interpretations of "fully protected" have
been satisfied.
The evidence in this case establishes that the inspector
issued the citation because he believed he was compelled to do by
MSHA's policy directives. He admitted that he believed that each
of the location examples stated in the policy with respect to
power cables passing over trolley wires were mandatory requirements obligating an operator to provide additional conduit protection in all cases at such locations in the mine and that he
had no discretion to determine whether or not any particular
circumstances would require such additional guarding.
The inspector conceded that the power cable in question was
in good condition and undamaged, and that it met all of MSHA's
cable insulation requirements. He also agreed that the cable was
hung on an insulator, and that the exterior of the cable was
protected by an insulating jacket, and that each power conductor
inside the cable was individually insulated. He agreed that the
cable was provided with short circuit and fuse protection, that
the outer and inner portions of the cable would have to be
damaged in order to present any shock hazard, and that in the
event such damage was present, a person would have to reach up
and over the trolley wire and grab the cable in order to be
exposed to a shock hazard._ He also agreed that in the event the
cable was dislodged and lying across the trolley wire, anyone

2346

performing work on the light switch would be able to observe the
cable in that position.
The inspector expressed concern that a possible shock hazard
would exist if a trolley pole from one of the vehicles passing
under the cable came off the trolley wire and struck and damaged
the cable.
If such damage were to occur, and the cable were to
fall on the energized trolley wire, the inspector believed that
the electrical light block circuit would become energized and
pose a shock hazard to anyone contacting the wire or cable. The
evidence establishes that the inspector was not an electrical
inspector and had no particular expertise in such matters.
Although he confirmed that the conduit which was in place, but
had slipped away from the cable location immediately over the
trolley cable, would not protect the cable from damage if the
trolley pole were to strike it in the unprotected area between
the light switch box and the end of the protective conduit, he
nonetheless concluded that the conduit in place over the cable
would sufficiently protect the cable if it had not slipped.
The inspector's belief that a trolley pole would likely come
off the trolley wire and strike the cable in question was based
on "his experience" that trolley poles frequently come off the
trolley wire, and that the likelihood of this occurring would be
increased by the fact that the haulageway in question was a
highly traveled area which would increase the frequency of a
trolley pole striking the cable. The inspector agreed that it
was possible that a trolley pole would never come off the wire
while travelling the haulageway and that the haulageway area in
question was a reasonably flat area. Although the inspector
believed that the reasons for a trolley pole "frequently" coming
off the trolley wire included excessive vehicle speed, a bend in
the trolley wire, or inadequate spring pressure on the pole,
there is no evidence in this case that these conditions existed.
The inspector confirmed that he did not visually inspect the
cable in question, and he could not recall specifically looking
for ~ny cable damage. He also confirmed that he observed no
bends in the trolley wire (Tr. 32, 42, 45).
The inspector confirmed that a vehicle approaching the area
where the cable in question was located would have to slow down
in order to activate the light switch (Tr. 30). Respondent's
witness Bochna, who was familiar with the area, agreed that the
area in question was congested, but he stated that the traffic is
not heavy, and that a vehicle approaching the location of the
light switch cable would have to slow down or stop in order to
activate the traffic light switch in question before proceeding
further, and that in his driving experience he has had no problem
with a trolley pole coming off a trolley wire (Tr. 60-63, 71).
The testimony in this case establishes that the height of
the mine roof off the floor was approximately 8 feet.
Mr. Bochna

2347

testified that the trolley wire.was located approximately
12 inches from the mine roof, and the inspector testified that
the power cable was located approximately 6 inches above the
trolley wire. Respondent's witness. Coss, who is an electrical
engineer and a qualified MSHA certified electrician and electrical instructor, and who regularly observed the equipment operating underground and has operated the equipment himself,
testified that the trolley poles are approximately 5-1/2 to
6 feet long, and that they are mounted at different locations on
the equipment, at heights varying from 3 to 4 feet. He confirmed
that there would be less tension on a trolley pole in a high roof
area, and that in the event the pole came off the trolley wire in
such an area, there would be less of an impact on the cable if
the pole were to strike it (Tr. 85-86). Conceding that a trolley
pole does occasionally come off the trolley wire in the mine, in
view of the fact that the mine has approximately 10 miles of
trolley wire, and the fact that a vehicle must slow down to
activate the signal switch, he believed that the likelihood of a
trolley pole coming off a trolley wire at the location of the
cited cable would be remote. Even if this occurred, he further
believed that a blunt trolley pole would not damage the cable by
striking it while it was hanging up (Tr. 88).
I conclude and find that there is no evidence in this case
to establish the existence of any of the factors or conditions
alluded to by the inspector to support his belief that trolley
poles frequently come off a trolley wire.
There is no evidence
in this case of excessive vehicular speed, bends in the trolley
cable, inadequate spring pressure or any of the trolley poles, or
unusual haulage road conditions.
Further, there is no evidence
that the respondent has experienced any problems in the mine with
trolley poles coming off a trolley wire and striking or damaging
power cables.
During the course of the hearing, and in response
to my bench questions concerning 10 prior citations for violations of section 75.517, the respondent's counsel confirmed that
three of the citations were issued for lack of adequate insulation or protection for power cables passing through stoppings,
one of the locations listed in MSHA's policy "examples" where
additional cable protection is required.
Counsel confirmed that
he "settled" these citations after the petitioner's solicitor who
was handling the cases agreed to vacate the citations. The
parties could offer no further information with respect to the
facts and circumstances surrounding these violations, and they
did not know whether or not the remaining citations concerned
power cable crossing over trolley wires (Tr. 71-77). The respective posthearing briefs filed by the parties do not further
address my bench inquiries concerning these prior citations.
While it may be true that the petitioner has established
that it is undisputed that MSHA has consistently interpreted
section 75.517 to require protective conduit or guarding on power
cables where they pass over trolley wires, I have rejected the

2348

petitioner's.position that such a policy may impose a mandatory
blanket requirement that additional protective conduit be provided at all such locations "across the board" without any objective consideration of the prevailing facts and circumstances.
I
also reject any notion that MSHA may make such a broad sweeping
unsupported policy determination that the lack of such additional
conduit protection constitutes something less than the "fully
protected" language found in section 75.517.
On the facts of this case, and after careful consideration
of all of the evidence presented, I conclude and find that the
petitioner has failed to establish that the cited power cable in
question was not fully protected as required by the cited mandatory safety standard 30 C.F.R. § 75.517.
Accordingly, the
contested citation IS VACATED.
ORDER
On the basis of the foregoing findings and conclusions,
section 104(a) "S&S'' Citation No. 3096605, issued on May 27,
1988, citing an alleged violation of 30 C.F.R. § 75.517, IS
VACATED, and the petitioner's proposal for assessment of a civil
penalty for the alleged violation IS DENIED AND DISMISSED.

Distribution:
Susan M. Jordan, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, 58th Floor, 600 Grant
Street, Pittsburgh, PA 15219 (Certified Mail)
/fb

2349

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

22041

N0V .: ( :.:· S9

JEFFREY BROWN, .

v.

DISCRIMINATION PROCEEDING
Complainant
Docket No. PENN 89-228-D
MSHA Case No. PITT CD 89-17

BETH ENERGY MINES, INC.,
Respondent

Livingston Portal 84 Complex

ORDER OF DISMISSAL
Before:

Judge Koutras

Complainant's motion received on November 20, 1989, to
withdraw the complaint filed in this matter IS GRANTED, and this
case IS DISMISSED.

/~~£
d;t;:-t?~
~~
,{__ Koutras
Administrative Law Judge

Distribution:
Mr. Jeffrey Brown, R.D. #1, Scenery Hill, PA 15360
(Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll Professional
Corporation, 58th Floor, 600 Grant Street, Pittsburgh, PA 15219
(Certified Mail)
Mr. Alfred Paterini, Safety Committeeman, Box 513, Ellsworth, PA
15331 (Certified Mail)
/fb

2350

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

NOV 21 1989
CONTEST PROCEEDING

ASARCO, INCORPORATED,
Contestant

v.

Docket No. SE 88-82-RM
Citation No. 3252969; 7/16/88

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Respondent

.

Docket No. SE 88-83-RM
Citation No. 3252970; 7/16/88
Immel Mine
Mine ID 40-00170
CIVIL PENALTY PROCEEDING

SECRE'rARY OF LABOR-,
MINE SAFETY AND HEALTH
ADMINISTRA'rION CMS HA),
Petitioner

Docket No. SE 89-67-M
A. C. No. 40-00170-05520

v.
Immel Mine
ASARCO, INCORPORATED,
Respondent
ORDER OF DISMISSAL
The procedural history of this case, with regard to discovery, has been set forth in previously issued Orders.
On October 23, 1989, Petitioner filed a Response to the
Order of October 16, 1989.
In its Response, Petitioner stated,
inter alia, that it continues to decline to produce certain documents which were required to be produced by previous orders.
Petitioner further stated as follows:
"Given the inefficacy of
first complying with and then appealing from the Administrative
Law Judge's Discovery Order, the proper procedure is for the
Administrative Law Judge either to follow the procedure set forth
in Commission Rule 74Ca>Cl) (29 C.F.R. 2700.74Ca)(l)) or to
dismiss this action so that the Secretary may have this Order
reviewed by the commission."
(Emphasis added).
On October 27, 1989, Respondent filed a Renewed Motion to
Dismiss, requesting dismissal of this case based on Petitioner's
refusal to comply with the Discovery Orders.
Based on the history of this case, wherein Petitioner's
position has been clearly stated, and particularity base~ upon
the above language quoted from Petitioner's Response of

2351

October 23, 1989, I conclude that to issue ~ show cause order at
this point, pursuant to 29 C.F.R. § 2700.63(a), would only serve
to unduly delay a disposition of this case. I conclude, based on
Petitioner's continued refusal to comply with the Discovery
Orders previously issued, that dismissal of this case is warranted. Therefore, Respondent's Renewed Motion to Dismiss is
GRAN·rED.
It is ORDERED that the above case be DISMISSED.
-.

,

,,,
~·

~

,

-Avram Weisberger
Administrative Law Judge
Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, u. s. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Henry Chajet, Esq., Mark N. Savit, Esq., Doyle and Savit,
919 18th Street, NW, Suite 1000, Washington, DC 20006 (Certified
Mail)
dcp

2352

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

22041

·N•r·\1
'· . i,, '.· •. · .,. .· :·
v

'

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....

,,-~

JOSEPH G. DELIS!O,
Complainant

·-..:·I

DISCRIMINATION PROCEEDING

v.

Docket No. PENN 89-8-D
MSHA Case No. PITT CD 88-25

MATHIES COAL COMPANY,
Respondent

Mathies Mine
DECISION

Appearances:

Michael J. Healy, Esq., for the Complainant
Richard R. Riese, Esq., for the Respondent

Before:

Judge Fauver

•

Complainant alleges a violation of § 105(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et~
The issue is whether Respondent violated § 105(c) by
refusing to compensate Complainant the difference between his
regular daily wage of $126.52 and his statutory witness fee of
$30 paid ~y MSHA for the day he appeared at a hearing.
Complainant was subpoenaed by MSHA to testify against Respondent
in a hearing before a Commission judge.
The parties have stipulated the facts and submitted the
case for decision without an evidentiary hearing.
Respondent operates a coal mine where Com9lainant is a
miner, the chairman of the local 11nion safety committee, and a
"representative of miners" within the meaning of the Act.
On July 21, 1988, in Mathies Coal Company, PENN 88-36~R, a
hearing was held before a Commission judge to try a contest filed
by Respondent concerning a citation issued at the mine, which
charged a violation of a safety standard.
M.SHA subpoenaed Complainant to appear at the hearing and
paid him a statutory witness fee of $30. The United Mine Workers
of America paid Complainant the difference between his daily
miner's pay and the statutory witness fee paid by MSHA.
The hearing was held in a courthouse, not at the mine.
did not work at the mine on the day he testified.

Complain~nt

2353

Respondent refused to pay Complainant the difference between
the wages he would have earned at the mine that day, $126.52, and
the witness fee of $30 paid by MSHA.
However, Respondent called
its own mine employee witnesses at the hearing on July 21, 1988,
and compensated them at the pay rate they would have received had
they worked at the mine that day.
The witnesses called by
Respondent were salaried employees, not hourly employees.
DISCUSSION
Section 105(c)(l) of the Act provides:

(1) 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 tither mine subject to this chapter because
such miner, representative of miners or applicant for
employ'Jlent has filed or made a complaint under or
related to this chapter, including a complaint
notifying the operator or the operator's agent, or the
representa.tive of the miners at the coal or other mine
of an alleged danger or safety or health violation in a
coal or other mine, because such miner, representative
of miners or applicant for einployment is the subject of
medical evaluation and potential transfer under a
standard published pursuant to section 811 of this
title or because such miner, representative of miners
or applicant for e1nployment has instituted or caused to
be instituted any proceeding, under or related to this
chapter or has testified or is about to testify in any
such proceeding or because of the exercise by such
miner, representative of miners or applicant for
employment on behalf of himself or others of any
statutory right afforded by this chapter.
The issue here -- whether § 105(c) prohibits a mine operator
from withholding wages from a miner witness who testifies against
the operator at a Commission heacing while compensatin:r other
employee witnesses who testify on behalf of the operator -appears to be one of first impression.
However, this isslle has
been considered under other statutes.
In Carpenter v. Miller, 325 S.E. 2d 123 (WV 1984>, the West
Virginia Supreme Court of Appeals interpreted an
anti-discri~ination law similar to§ 105(c).
The state law
provided in part:
No person shall • • . in any • • • way
discriminate against . • • any miner • .
by reason
of the fact that he believes or knows that such miner
. . • has testified or is about to testify in any

2354

proceeding resulting from the administration or
enforcement of the provisions of this law.
[West
Virginia Code§ 22-l-2l(a) (3) (1981 Replacement
Vol. ) • ]
The UMWA and several miners brought a mandamus action
against the west Virginia Department of Mines to prevent the
practice of mine operators withholding compensation from miners
who were subpoenaed to testify in hearings before the Department.
The two operators named in the proceeding had paid the e1~loyee
witnesses who testified on their behalf, but refused to pay their
employees who testified against them. The court held that the
withholding of compensation fro;n the miners who testified against
the operators constituted discrimination in violation of the
state statute.
In UMWA v. Miller, 291 S.E. 2d 673 <WV 1982), the court held
that withholding compensation from a miner who accompanied a
state mine inspector during a mine safety inspection was
discrimination in violation of the above state statute.
In NLRB v. Western Clinical Laboratory, Inc., 571 F.2d 457
(9th Cir-:-I'978), the court upheld an NLRB ruling that the
employer violated§ 8(a}(4) of the National Labor Relations Act
1/ by requiring an e.nployee to use vacation time for his
attendance under subpoena at an NLRB hearing despite the
employee's desire to take leave without pay for those days.
In Electronic Research Co. [I], 187 NLRB 733 (1971), the
Board held that an employee's denial of a perfect attendance
award to an employee because he was absent from work while
testifying against the employer in a Board hearing violated
§ 8 (a) ( 4), where the e.nployer CJ ranted such an award to einployees
who appeared at the same Board hearing at the employer's request.
However, in Electronic Research Co. [II], 190 NLRB 773 (1971),
the Board held that the employer did not violate the NLRA when it
refused to pay for time lost from work by three e.nployees who had
been subpoenaed by the union as witnesses at a Board hearing,
even though it p.::i.id regular pay to employee witnesses called by
the employer.
The Board foilnd that the hearing. was an adversary
hea~ing in which each side subpoenaed or called its own witnesses

!/

Section 8(a}(4) provides:
"(a} It ·ahall be an unfair labor practice for an employer --

"* * *

" ( 4) to discharge or otherwise discri1nin3.te against an
e1nployee because he has filed charges or gi,ren testLnony under
this subchapter * * *."

2355

and compensated them for their ti1ne, and the union's witnesses
were not monetarily disadvantaged since the union had paid union
witness fees that exceeded.their wages.
In a later case, General Electric Company, 230 NLRB 683
(1977), a majority opinion of the Board'coinented on the opposite
results in the two Electronic Research, Co. cases, supra.
It
stated that the.Board was "distinguishing between those
situations where the employer's actions are directed at the
einployment relationship, as in the perfect attendance award
• , and those where they were not, as in the witness fee
situation" (emphasis supplied). The majority opinion thus
concluded:
There is nothing unlawful in an employer using the
wages of witnesses as the ineasure of his compensating
them for witness fees while not also payin9 employees
called by other parties • • • , since the employer's
actions are not directed at the e~ployment relationship.
[Fn. omitted.]
However, if an employer distinguishes
between its ernployees on the basis of whether they- were
summoned as witnesses by it or by the opposition, it
acts unlawfully.
Then-Chairman of the NLRB Fanning dissented on the ground
that the employer's denial of wages to opposition e.n9loyee
witnesses "was disparate treatment based on whether the testimony
was on behalf of or against Respondent's interest" - - and this
was "discrimination within the meaning of Section 8(a)(4)."
The distinction relied upon by the majority opinion in
General Electric -- between Cl) discrimination as to a perfect
attendance award or the use of vacation time and (2)
discrimination as to wages -- appears to me to artificial and in
any event distinguishable from Mine Act cases. The broad
protection of § 105Cc> of the Mine Act prohibits "any manner" of
discrimination.
I conclude that Respondent violated § 105(c) of the Act by
reL1sing to pay Co:nplainant the difference between his regular
daily wages, $126.52, and the witness fee of $30 paid by MSHA.
Because of Respondent's discriminatory tre3.tment of witnesses in
a Mi!'le A.ct proceeding, i.e., refusing to pay wages to Complainant
who was an opposition ~itness but paying the wages of the
witnesses who appeared on its behalf, no further examination of
discri.ninatory motive is necessary.

CONCLUSION OF LAW
1.

The judge has jurisdiction over this proceeding.

2356

2.

Respondent violated § 105(c) of the Act as found above.
ORDER

1.
The parties are directed to confer within 15 days of
this Decision in an effort to sti~ulate the amount of
Complainant's back pay, with accrued interest computed according
to the Commission's decisions, and Complainant's litigation
eKpenses, including a reasonable attorney's fee.
2.
Within 30 days of this Decision, Complainant shall file
either a stipulated proposed order awarding monetary relief
signed by both parties ~/ or, if there is no stipulation,
Complainant's proposed order awarding monetary relief.
If there
is no stipulation, Respondent shall have 10 days after the
proposed order is filed to file a response.
If appro~riate, a
hearing will be scheduled to resolve any issues of f~ct as to
monetary relief.
3. This Decision shall not become final until an order is
entered awarding rnonetary relief and declaring this Decision to
be final.
The judge will retain jurisdiction of this proceedin9
until such an order is entered.

LJ~
1-~\l'V\William Fauver
Administrative Law Judge

~/

Respondent's stipulation of a proposed order awarding
monetary relief will not limit its right to seek review of a
final Decision and Order entered in this proceeding.
Distribution:

Richard R. Riese, Esq., Thorp, Reed and Armstrong, One Riverfront
Center, Pittsourgh, PA 15222 CCertiEied Mail)
Michael J. Healey, Esq., Healey Whitehall, Law and Finance
Building, 429 ~ourth Avenue, Pittso~rgh, PA 15219 (Certified
Mail)
iz

2357

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

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 89-122-M
A.C. No. 23-00746-05514 A

v.
Sullivan Plant
WILLIAM D. LONG, Employed by
K. R. WILSON CONTRACTING,
INC.,
Respondent

.

DECISION APPROVING SETTLEMENT
Appearances:

Before:

Oscar Hampton, Esq., Office of the Solicitor,
U.S. Department of Labor, Kansas City, Missouri,
for Petitioner;
Frederick H. Schwetye, Esq., Union, Missouri, for
Respondent.

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section llOCc) of the Federal Mine Safety
and Health Act of 1977 (the Act). At hearings Petitioner
filed a motion to approve a settlement agreement and to
dismiss the case. A reduction in penalty from $1,300 to
$900 was proposed.
I have considered the representations and
documentation submitted in this case, and I conclude that the
proffered settlement is appropriate under the relevant
criteria set forth in Section llO(i) of the Act.
WHEREFORE, the motion for approval of settlem.jnt is
GRANTED, and it is ORDERED that Respondent pay a plnalty of
$900 within 30 days· of this ord(;r ·,/
;J
I

.I

I

i

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,
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:

1
·
/
Adrrvinist~a<.ive Law· Judge
(703) 756-6261
'
/
1·

Gary Melick/'v

Distribution:

r

.{
'\

~

<-"\

I

Oscar Hampton, Esq., Offic~ of the bolicitor, u:s. Department
of Labor, 911 Walnut Street, Room 2106, Kansas City, MO
64106 (Certified Mail)
Frederick H. Schwetye, Esq., 8a South Church Street, P.O. Box
499, Union, MO 63084 (Certified Mail)
nt

2358

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

NOV 2 7 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRA'rION CMSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 89-27-M
A.C. No. 23-00746-05512

v.
Sullivan Plant

K. R. WILSON CONTRACTING, INC.:
Respondent

DECISION APPROVING SETTLEMENT
Appearances:

Before:

Oscar Hampton, Esq., Office of the Solicitor,
U.S. Department of Labor, Kansas City, Missouri,
for Petitioner;
Frederick H. Schwetye, Esq., Union, Missouri, for
Respondent.

Judge Melick

This case is before me upon a peti~ion for assessment of
civil penalty under Section 105Cd) of the Federal Mine Safety
and Health Act of 1977 (the Act). At hearings Petitioner
filed a motion to approve a settlement agreement and to
dismiss the case. A reduction in penalty from $2,719 to
$2,634 was proposed.
I have considered the representations
and documentation submitted in this case, and I conclude that
the proffered settlement is appropriate under the cri eria
set forth in Section llOCi) of the Act.
i

i

WHEREFORE, the motion for approval of settlement is
'
GRANTED, and it is ORDERED that~Resp·'\dent pay a pena ty of
$2,634 within 30 days of this o 'derl

.

I

I t

(~ A/'~~ /\>t-'-. '

Gary Melick \\../
Adrrvinistratfve Law Jud e
(703) 756-6261

/

\ ;

Distribution:

I

Oscar Hampton, Esq., Office of the So~icitor, U.S. Department
of Labor, 911 Walnut Street, Room 2106, Kansas City, MO·
64106 (Certified Mail)
Frederick H. Schwetye, Esq., 8a South Church Street, P.O. Box
49.9, Union, MO 63084 (Certified Mail)
nt

2359

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

22041

NOV 2 7 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS'rRATION (MSHA),
:i;>etitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 89-126-M
A.C. No. 23-00746-05516-A

v.
Sullivan Plant
KENNETH R. WILSON, Employed by:
K. R. WILSON CONTRACTING,
INC.,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

Before:

Oscar Hampton, Esq., Office of the Solicitor,
U.S. Department of Labor, Kansas City, Missouri,
for Petitioner;
Frederick H. Schwetye, Esq., Union, Missouri, for
Respondent.

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section llO(c) of the Federal Mine Safety
and Health Act of 1977 (the Act).· At hearings -Petitioner
filed a motion to approve a settlement agreement and to
dismiss the case. A reduction in penalty from $1,600 to
$1,100 was proposed.
I have considered the representations
and documentation submitted in this case, and I conclude that
the proffered settlement is appropriate under the relevant
criteria set forth in Section llO(i) of the Act.
WHEREFORE, the motion for approval of settlem nt is
GRANTED, and it is ORDERED that Respondent pay a p nalty of
$900 within 30 days of this or~er., \
1

!/

II

.'

l

I
\
_
_,
'
Ga;~y Melic~ ~...
'1

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Administra~ive
3 > 1s6-6\2 61

no

Ii

i·

Distribution:

/L,.._...____\

, 1
Law J~dge/
~ ;
I

De~artment

Oscar Hampton, Esq., Office of the Solicitor, U.S.
of Labor, 911 Walnut Street, Room 210~, Kansas City, MO
64106 (Certified Mail)
!

Frederick H. Schwetye, Esq., 8a South Church Street, P.O. Box
499, Union, MO 63084 (Certified Mail)
nt

2360

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

2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

NOV 2 8 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 89-36-M
A. C. No. 11-01896-05503

v.
Vandalia Sand & Gravel
VANDALIA SAND & GRAVEL,
Respondent
DECISION
Appearances:

Maria P. Peterson, Esq., Office of the Solicitor,
U. s. Department of Labor, Chicago, Illinois, for
the Secretary~
·
Mr. Mike Themig, Vandalia Sand & Gravel, Vandalia,
Illinois, for the Respondent.

Before:

Judge Weisberger

Statement of the Case
In this case, the Secretary (Petitioner) seeks a civil
penalty Eor the alleged violation by the Operator (Respondent) of
30 C.F.R. § 56.15001. Pursuant to notice, a Hearing has held in
St. Louis, Missouri, on October 3, 1989.
Jerry Spruell testified
for Petitioner, and Respondent did not present any witnesses.
At t.he Hearing, the Parties entered into the following
stipulations:
1.
The Federal Mine Safety and Health Commission has
jurisdiction over these proceedings.
2.
Respondent's wife owns and operates the sand and gravel
pit at Vandalia known as Vandalia Sand and Gravel, and that
Mr. Mike Themig is the manager of the same gravel and sand pit.

3. The Respondents have worked 4,980 man-hours between
December 23, 1987, through December 23, 1988.
4.

The Respondent does not have any prior violations with

MSHA.

2361

------------------

Issues
The issues before me are whether Re3pondent violated
~6.15001, and the penalty to be imposed on Respondent
if 3Uch a violation did occur.
·

30 C.F.R. §
Regulation

30 C.F.R. § 56.15001, as pertinent, provides as follows:
"Adequate first~aid materials, including stretchers and blankets,
shall be provided at places convenient to all working areas."
Findings oi Fact and Discussion
. Inasmuch as Respondent did not present the testimony of any
witnesses at the Hearing, the factual findings that I have made
in this case were based upon the testimony of Jerry Spruell, an
MSHA Inspector, who testified for Petitioner.
On October 3, 1988, Spruell went to Respondenc's sand and
gravel operation to perform a semiannual inspection.
He met with
Mike Themig and asked him if he had a stretcher, blankets, and
first-aid materials at the property, and Themig indicated that he
did not, but that "if someone got hurt he would merely call the
hospital" (Tr. 14). On October 6, 1988, Spruell returned to the
site, and at that time was shown a stretcher which was folded up.
The side support braces of the stretcher were broken, and Spruell
opined that due to its condition it would not be able to carry a
person.
He indicated that in his opinion, a stretcher is
"adequate" if it is capable of transporting the largest person
employed on the site.
according to Webster's New Collegiate Dictionary (1979
edition), (Webster's) a "stretcher" is defined as "a litter (a.s
of canvas) £or carrying a disabled or dead person." Webster's
defines "adequate" as" . • . lawfully, and reasonably sufficient."
Inasmuch as the stretcher in question has support braces that
were broken, I find that it was inadequate to carry disabled
pers.ons.
According to Spruell's notes made on October 7, 1988, on
October 3, 1988, Th8mig had indicated that a blanket waa
" . . . in his truck." When Spruell was at the site on October 4,
1988, the µickup truck was not at the site.
On October 17, 1988,
when Spruell again returne<l to the site, a blanket was tak~n trom
a welding truck and placed in tne scale house.
Based upon cne above, and cons iC:ler ing t;1a t Ras pond.en t did
not contradict or rebut Themig's 3tatement to Spruell, on
October 3, 1988, tnat he did not have a blan~et, I c0nclude that
a blanket was not provided at any place convenient to the working
areas on October 3 - 4, 1988.

2362

Respondent had on the site, two first-aid kits which had the
following materials:
ten 3/4 inch band-aids, 1.8 ounces
first-aid cream, six antiseptic cleansing wipes, one roll of
cloth tape, one roll of gauze, two burn cream packs, two nonstick
pads, two extra large bandage strips, one pair sci5sors, and a
first-aid guide.
According to Spruell, the iirst-aid materials
were inadequate as they did not conLain any splints.
Inasmuch as the support braces for the stretcher were
broken, and the evidence tends to indicate that a blan~et was not
provided at the site on October 3 - 4, I find that Respondent
did violate section 56.15001, supra.
Spruell indicated that on October 4, 1988, Themig had told
that i£ an employee would suffer a neck or back injury, the
instructions were to call for emergency medical help from the
hospital.
A map submitted by Respondent indicates that an
emergency vehicle from tne hospital can reach Respondent by going
down 8th Street for 10 blocks, and then turning right on St.
Louis Avenue out to Respondent's site.
There is no evidence with
regard to any hazard occasioned by the lack of having a blanket
at the site.
The first-aid kit was, as indicated by Spruell,
adequate for very minor wounds.
I find the violation to be of a
low level of gravity.
hi~

Respondent had not abated the condition by the date stipulated
to on the citation, October 11, 1988. According to Spruell,
Themig had indicated that in the past other MSHA Inspectors had
accepted the stretcher, and there was no need for any splints as
tile first-aid mate.c ials were adequate.
Eventually after a
discussion with Spruell, who had discussed the possibility of
issuing a section 104(b) Order, the violative conditions were
aoated by Themig, by nailing two 2 x 4s to a plywood board, and
labeling it a stretcher, taking wooden lathes and marking them
splints, and placing these in the scale house along with the
blanket.
Taking all the above into account I conclude that the
penalty proposed by Petitioner, of $20, is appropriate for the
violation found herein.
ORDER

It is ORDERED that, within 30 days of this Decision,
Respondent pay $20 as a civil penalty for the violation found
herein.

LJ~~

Administrative Law Judge

Distribution:
Maria P. Peterson, Esq., Rafael Alvarez, Esq., Office of the
Solicitor, u. S. Department of Labor, 230 South Dearborn Street,
8th Floor, Chicago, IL 60604 (Certified Mail)
Mr. Mike Themig, Vandalia Sand and Gravel, P.
Vandalia, IL 62471 (Certified Mail)
dcp

2363

o. Box 391,

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

NOV 2 8 1989
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINrs·rRATION CMSHA),
Petitioner

..

v.

Docket No. SE 89-93
A. C. No. 01-01401-03748
No 7 Mine

.JIM WALTER RESOURCES,
INCORPORATED,
Respondent
DECISION
Appearances:

William Lawson, Esq., Office of the Solicitor,
U. s. Department of Labor, Birmingham, Alabama,
for the Secretary;
R. Stanley Morrow, Esq., Jim Walter Resources,
Incorporated, Birmingham, Alabama, for Respondent.

Before:

Judge Weisberger

Statement of the Case
In the proceeding, the Secretary (Petitioner), pursuant to a
Petition for an Assessment of Civil Penalty, filed on May 15,
1989, seeks a civil penalty for an alleged violation by the
Operator (Respondent) of 30 C.F.R. § 75.312.
Respondent filed
its Answer on May 19, 1989. Pursuant to a telephone conference
call with counsel for both Parties, on September 5, 1989, the
matter was set for hearing on September 13, 1989, in Birmingham,
Alabama.
At the hearing, Don Greer testified for Petitioner and
Greg Franklin testified for Respondent.
Post hearing Proposed
Findings of Fact and Memorandum of Law were filed on October 6,
1989. Respondent filed its Reply Brief on October 13, 1989, and
Petitioner filed its Reply Brief on October 16, 1989.
Stipulations

1.

Jim iJal ter ia the owner anu. operator of the No. 7 Coal

2.

·rhe Commission has jurisdiction to hear this proceeding.

Mine.

3.
Jim Walter Resources is a large-sized operator for purposes of the Act.

2364

4. Payffient of a penalty which may result out of this litigation would not affect its aoility to continue in the business.
5.

The violation alleged was abated in good faith.

6. Tha history of violations Rt Respondent's No. 7 Mine is
avecage for an operation of that size.

Findings of Facts and Discussion
The 92 longwall section, at Respondent's No. 7 Mine, is a
longwall operation where~y coal is extracted by a shear which
cuts the coal from the approxi~ately 850 foot wide coal face.
The shear cuts from the tailgate to the headgate (Entry No. 4).
The face is ventilated by ai~ from the adjacent No. 4 Entry an~
No. 3 Entry, with most of the air coming from the No. 3 Entry.
In the longwall nining cycle, the working or coal face advances
in an outoy direction, i.e., towards the entrance.
On February 14, 1939, at approximately 12:45 a.m., the lonqwall panel w.::ts inspected by Don G~r:-eer, an MSHA Inspecto.r. At
that time, he noted that the shear was cutting the working face
out~y crosscut A, but that the face was being ventilated by air
from Entry No. 3 w~ich passed through cros5cut A to the face.
He indicated that the roof in croascut A was su99orted by bolts,
and accordingly, it would not be a violation of the roof control
plan for a. miner to be in crosscut A. However, he did not enter
crosscut A as he "oerceived," (Tr. 33), that it was dangerous,
inasmuch as a "tremendoua" amount of roe~ and ffiaterial, (Tr 39),
as a result of the normal mining procedure, ~a3 being supporte1
'oy shield3.
He indicated, es3antially, tba t there also ,v;:;i,s a
buil :l up of l:'ock in a gob area. This material was located
ai;>pco:?Cimately 20 feet to the right of "l. coal 9illar, which
ab:.itted crosscut A inoy. He indicated that he was concerned that
this rnateci::i.l had created oressut"e on the roof oE crosacut J\. H~
indicated that the area to the right of crosscut A was
1.rnsu9;;>orted e:'{cept f 0r the shield.3. According to Gree·':'.', as the
.::3hields advanced outby, in the nocnal mininq proce-=3s, there ;.roul::l
be increased pre~sure on the roof of crosscut A due to the nor~al
falling of the roof.
1

Gre~r issued a section 1J4(a) Cication, ~lleging a violation
of 30 C.F.R. j 75.312, sunra, ~hich provides, as per~inent, ~h3t
"Ale that has ?assed through an abandoned are"l. or area ~hich i3
in~cce5di~le or unsafe foe i~suection sh~ll not be used to ventilate any wor~ing place in any ~ine." Thus, ~n ceder to 9revail,
~etitioner ~ust establish that che air ventilating the face
pa3s21 thcough e~ther an "a~a~jo~ed" area or one that is "unsafa
Eor ins~ection."~/

~/

No ar~1.!cnent is made Of Petitioner that the area in que~•c1on
was inaccessible. Nor does the evidence support s~ch a findin3.

2365

30 C.F.R. § 75.2(h) defines an abandoned area as an area
that is ".
. not ventilated and examined in a manner required
for working places under subpart D of this part 75." The
evidence is unequivocal that crosscut A was ventilated. According
to a plain reading of section 75.2(h), suora, an area is abandoned
if it is not ventilated and examined.
Inasmuch as the 75.2(h),
supra, uses these two conditions in the conjunctive, if one
condition has not been met, i.e., if the area has been ventilated,
as here, it can not be considered abandoned.'!:._/
Although Greer did not inspect the roof in crosscut A, I
find that the record does not contradict his opinion, that the
roof therein is subject to pressure from the falling roof as part
of the normal ore mining process.
Indeed Greer testified that he
observed some crumbling from the pillar abutting crosscut A.
Fran~lin also essentially agreed that the advance of the longwall
extraction, which causes the roof to fall, does transmit pressure
on the pillar abutting crosscut A.
As such, I find based upon
the testi1nony of Greer that crosscut A was unsafe for inspection.
Accordingly, inasmuch as air passed througn crosscut A on its way
to the face, Respondent herein did violate 30 C.F.R. § 75.312,
supra •.~/
Accocding to Greer, as the normal longwall mining process
retreats outby, there is increased pressure on crosscut A due to
the build up of materials in the gob areas adjacent to it.
However, although a hazard of a roof fall in crosscut A is
thereby created, Petitioner has not established the manner in
which the violation herein, i.e., air passing through that area
on the way to tne face, contributes to a hazard of the rib or
roof falling in crosscut A. Greer also indicated that it is
likely that there would be methane in the gob area as the seam
"is a known gassy seam of coal" (Tr. 54). He testified that as
the air passes

2;

I also find that it has not been established that the area in
Greer opined that he would not inspect
crosscut A.
His opinion is clearly not probative 0£ whether in
fact that area was actually examined by Respondent in the manner
required for working places. Testimony from Responde11t's witnesses
similarly does not establish that the area was not examined.
According to Greg Franklin, Respondent's ventilation engineer, he
was told by Paul Phillips, a foreman, that on the date in question
miners used crosscut A as a dinner hole, and that men traveled
through that area. He indicated that crosscut A was to be
inspect,=d. ·

~uestion was not examined.

3/

I reject Respondent's argument, as set forth in its Brief,
~hat Petitioner must show that the air contained .25 oercent of
methane to e3tablish a violation of section 75.312, s~ora.
I
£ind that the second sentence in section 75.312, supra, does not
qualify or modify the first sentence.
Inasmuch as the evidence
establishes that the terms of the first sentence were violated, I
find that Respondent was in violation of section 75.312, supra.
2366

through the gob, there is a potential for it to pick up methane
and transport it to the face. Greer indicated that, on the day
he was present, in the normal mining process the face would have
retreated another 12 to 15 feet that shift, thus increasing the
likelihood of methane arriving at the face.
In this connection,
he indicated that the night foreman had told him that, in
general, it is his policy to let the following shift, the day
shift, make any ventilation changes.4/ Greer indicated that
methane reaching the face could cause an ignition or explosion,
which could be initiated by problems with electrical equipment at
the face, or by sparks generated by the tops of the bits of the
shear. He indicated that in the event of a fire or explosion, he
would expect miners present in the working section to suffer
burns or fatalities in the severest of cases. However, He
indicated, in cross-examination, that no gas was found in
crosscut A, and that gas samples taken an hour after he issued
the ~itation were within the legal limits. He also indicatedthat
it was his "perception" that while an accident "could occur" he
did not "foresee" it happening beiore the violation could be
corrected (Tr. 60). Further, the evidence has not established
that air traveling through crosscut A results in a greater
likelihood of its passing through the gob area and picking up
methane, as opposed to air traveling up the headgate entry and
then on to the face. Hence, I conclude that it has not been
established that there was ~ reasonable likelihood that the
violation herein contributed to the hazard of fire or explosion.
Accordingly, I find it has not been established that the
violation herein was significant and substantial.
(See, Mathies
Coal Co., 6 FMSBRC 3-4 (1984)).
In assessing a penalty herein, I adopt the stipulations of
the Parties with regard to the factors set forth in section
llO(i) of the Act.
I further find that the violation herein was
of a moderate degree of severity. The evidence herein is not
very persuasive that there was a significant hazard occasioned by
coursing the air through crosscut A as opposed to the hazard to
one present in crosscut A occasioned by the condition of the roof
and rib there.
I find that Respondent herein was moderately
negligent. Considering all of the above, I conclude that
Respondent shall pay a penalty of $75 for the violation found
herein.

!I

I place more weight on the stateinent of policy, given by the
foreman of the night shift, the actual shift in question, rather
than the general statement of Fran~lin that it is policy to make
ventilation changes as they are needed.

2367

ORDER
It is hereby ORDERED that Respondent shall, within 30 days
of this Decision, pay $75 as a penalty foe the violation ·found
herein.
It is further ORDERED that Citation 3012364 be amended
to reflect the fact that the violation therein is not signiiicant
and substantial.

~~

/Avram Weisberger
Administrative Law Judge
Distribution:
William Lawson, Esq., Office of the Solicitor, U. S. Department
of Labor, 2015 Second Avenue North, Suite 201, Birmingham, AL
35203 (Certiiied Mail)

R. Stanley Marrow, Esq., Jim Walter Resources, Incorporated,
P. O. Box 830079, Birmingham, AL 35283-0079 (Certified Mail)
dcp

2368

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

22041

NOV 2 8 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 89-192
A.C. No. 15-11548-03572

v.
No. 22 Mine
LEECO, INCORPORATED,
Respondent
DECISION
Appearances:

Before:

G. Elaine Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee
for Petitioner;
Martin J. Cunningham, III, Esq., Reece, Lang,
Aker & Breeding, P.S.C., London, Kentucky for
Respondent.

Judge Melick

This case is before me upon the petition for civil for
penalty filed by the Secretary of Labor pursuant to
Section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801 et seq., the "Act," charging Leeco,
Incorporated (Leeco) with one violation of its Roof Control
Plan under the regulatory standard at 30 C.F.R. § 75.220 and
seeking a civil penalty of $7,000. The general issue before
me is whether Leeco violated the cited regulatory standard
and, if so, the appropriate civil penalty to be assessed in
accordance with Section llO(i) of the Act.
At hearing Leeco filed a motion to dismiss which was
granted at hearing in a bench decision. That decision is set
forth below with only non-substantive corrections:
I'm going to grant the motion. The motion is
essentially one to dismiss for failure to charge a
violation of law as charged in the citation.
Ordinarily, such a motion should of course be made
before trial, but under the circumstances here
there·was some ambiguity in the citation itself as
to what precise provisions of the Roof-Control Plan
actually were alleged to have been violated. Under
the circumstances the delay is understandable and I

2369

will allow the motion to be made at this time now
that the specific charges are known.
The citation before me, Citation No. 3030482
3tates as follows:

The temporary supports installed in the
area of the accident were not in
coillpliance with the approved Roof-Control
Plan, in that the inby row of three had
been installed eight to nine feet inby
the first row of four.
The approved plan
requires temporary supports in ro'lls of
four, not more than five feet apart.
Now clearly that citation charges a viol~tion
of the Roof-Control Plan and nothinq else, and as
stated at hearing by the Secretary's Counsel the
violation all~ged is that on Page 24 of the
Roof-Control Plan which is Governinent Exhibit ~o. 1
[attached hereto as Appendix I].
As clarified
further at hearing the specific charge of a
violation of the Roof-Control Plan appears to oe
that the second row of tem9orary supports, that is,
the temporary supports identified as ~o. 6 an1..l 7 on
the diagraill, Government Exhibit 2, [attached hereto
as Appendix II] were set in excess of 5 feet from
the first row of supports.
As an aside I also note that the specific
testimony related to that allegation also differs
significantly from the ~llegation of the citation.
The testimony by the Inspector who wrote the
citation is that the No. 6 temporary suppot"t was
6 feet inby the nearest first row su9port, and the
No. 7 temporary suµport was 6 1/2 feet from the
nearest first row su99ort, whereas it is charged in
the citation that these temporary supports were a
to 9 feet inby the first row of supports.
Be that ~s it may, as pointed out by
Mr. Cunningha1n, counsel tor the operator, the Plan
on its face does not require ~ore than one row of
te1npor3.ry supports where the cut at i:3sue is less
than 24 feet deep.
It is conceded by the
Government that the cut at issue was indeed less
than 24 feet deep.
It is also admitted by the
G'.Jvern,.,ent that the second row of tem90.cary
.'3U?~Jorts was not even req'.li r.ed by the Pl::in, but was
in e{cess of the Plan's requicements.
The fact

2370

that the second row o.f temporary support:,; does not
comply with other provisions of the plan is
therefore immaterial as far as I can see. As
another aside here, they have not shown that having
those additional second row of teinporary supports
even though they perhaps illay have been on greater
than 5 foot centers, were less safe than not having
them at all.
In any event, under the circumstances of this
case, I cannot find that there has ~een a violation
of the Roof-Control Plan.
I do not agree with the
Government's representations that the violation
charged in this citation was also a violation of
some other part of the standard at 30 C.F.R. §
75.220. I believe the Government's representation
was that the alleged violation in this case Rlso
re~resented a failure on the part of tbe mine
oper~tor to have taken additional precautions if
there -.vere unusual hazards.
It seems to me that
even if that were ~harged the eact that the
operator did erect additional temporary supports,
even though perhaps in ex:cess of the 5 foot
requi reinent, does show that some additional
?rotection was provided.
The Government also maintains th.at once ha·ving
made the decision to install additional supports
the mine operator must then comply with the 5 foot
center re1uirement of th:: Plan.
I cannot re=i.d any
such requirement into the Plan and I therefore
reject that contention.
Under the circumstances,
I'm going to grant the Motion to Dismiss and vacate
the citation.

ORDER
Citation No. 3030432 is VACA:rEo and this Civil Penalty
Proceeding is DISMISSED.

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Ad~inistrative

(703) 756-5251

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Gary Mel ic !c

2371

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Law

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~udge

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Cuts exceedin~ :4' in depth shall have a double ~o~ c~ ~a~oorarv supports
installed and advanced.
One row on 24' or less deep c~cs.
Areas where corners are rounded off additional roof belts to be installed
as necessary.

ROOM PLAN

Temporary supports to be installed before first bolt and advanced as each row of
roof bolts is installed.
Temporary Supports A to be installed before roof bolting co~~ences. Temporarv
Supports B, C, D and E installed as roof bolting progresses. Temporary supp~rts
1
are on 5 centers. The remote controls of the continuous ~iner shall not advance
in by the second row 0f roof bolts from the face.
~o person ~hall advance in bv
the miner controls while miner is mining coal.
Roof bolts en 4' centers maximu~.

2372

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2373

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-. _._ ··-· ··;_;...·.:..
;•·~

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

22041

NOV 2 8 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. KENT 89-137-M
A. C. No. 15-15676-05513
Staton Mine

MOUNTAIN PARKWAY STONE,
Incorporated
Respondent
DECISION
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,
U. S. Department of Labor, Nashville, Tennessee,
for the Secretary;
Jeffrey T. Staton, Mountain Parkway Stone,
Incorporated, Stanton, Kentucky, for the
Respondent.

Before:

Judge Weisberger

Statement of the Case
In this case the Secretary (Petitioner) see~s, by way of a
Proposal for Assessment of Civil Penalty filed on May 15, 1989,
civil penalties for alleged violations by the Operator
(Respondent) of various mandatory safety standards found in
Volume 30 of Code of Federal Regulations, and generally referred
to in the Proposal. Respondent filed its. Answer on June 9, 1989.
Subsequent to a telephone conference call with both Parties,
initiated by the undersigned on August 22, 1989, the Parties
agreed that this matter could be set for Hearing on August 31,
1989. The case was heard in Richmond, Kentucky, on August 3~,
1989. At the commencement of the Hearing, after the Parties were
provided with time to discuss the alleged violations in issue,
the Parties advised that Citation Nos. 3253524 and 3253525 were
settled. Subsequently, during the course of the Hearing, the
Parties indicated that a settlement had been reached in Citation
Nos. 3253322 and 3253523.

2374

At the Hearing Gary Manwarring and Vernon Denton testified
for Petitioner.
Bobby Brewer and Charles Williams''testified for
Respondent.
Proposed Findings of Fact and Memorandum of Law were filed
on October 27, 1989, by Petitioner, and on October 1, 1989, by
Respondent.
A Joint Motion for Approval of Settlement was filed
on November 6, 1989.
3tioulations
The Parties have stipulated to the following:
1. Mountain Parkway Stone, Inc. is a Kentucky corporation
engaged in the extraction and preparation oi crushed and broken
limestone for resale in interstate commerce.
2.
Mountain Par~way Stone, Inc. has operated an underground
mine in Powell, Kentucky since July 11, 1986.

3. Mountain Parkway Stone, Inc. is subject to the jurisdiction of tl'le Federal i>iine Safety and Health. Review Commi3sion and
its Administrative Law Judges.
4.
Mountain Parkway Stone, Inc. produced 59,552.44 tons of
limestone in 1987, 54,906.49 tons in 1988, and 14,227.43 tons
from January through August 1989.
Findings of Fact and Discussion
I.

Citaticn No. 3253320

Reapondenc operates a limestone mine Known as the Staton
Mine. On March 1, 1989, Gary Manwarring, an MSHA In3pector,
inspected the subject underground mine.
At that time a front-end
loader waa present at che iace, loading roe~ onto a naul truck.
Tnere was only one escapeway, at the portal, and there were no
refuges.
Respondent's operation was not involved in explocation
at that time.
Manwarcing issued a section l04(a) Citation alleging a violation of 3G C.F.R. ~ 57.ll050(a), which, in essence, provides that
avery mine 3hall have at least two separate escapeways to the
surface, but that a second escapeway is not required during
explocation ".
. or development oI an ore body."
(Emphasis
added).
Tnus, the prime issue tor consideration is whether or
not Re3f>Ondent. was involved in "development" when the citation
was issued.

2375

Manwarring offered hi3 opinion that Respondent was in production, not development, as it was removing limestone, its product.
Vernon Denton, a 3U~ervising inspector employed by MSHA,
indicated essentially that in a limestone mine there is not any
"development" inasmuch as soon aa the overburd~n is stripped
away, access is obtained directly to limestone, and the mine is
then in production. Neither of Respondent's witnesses, its
employees Bobby Brewer and Charles Williams, offered any
definition of.the term "development."
The main drift of the mine, from the entrance to the point
where the face existed on March 1, 1989, is somewhat circuitous
(Joint Exhibit 1), but ia the only feasible way from the entrance
to the point where the second portal or escapeway was eventually
broken through. As such, it appears to be Respondent's position
that the approximately 945 feet of the main drift, on March 1,
1989, was "development," as the drift was proceeding by the only
9ath possible to the point where the second portal would be
broken out.l/ Respondent apparently also relies on the testimony
of Brewer and Williams to the effect that on March 1, 1989,
Denton indicated that he had told Jeffery Staton that, in
essence, he would be allowed to go 1000 feet, without the neces3ity of a second escapeway, in orde~ to reach the point of a
breakthrough to a seco~d escapeway.~/
Respondent did not rebut the testimony of Petitioner' a
witnesses as to the meaning of the term "development." Nor did
Respondent affirmatively present any evidence to establish a
definition of that term different from that espoused by
Petitioner's witnesses. Further, I note that the Dictionary of
Mining, Mineral, and Related Terms, defines "development" as
iollows:
"a. To open up a coal 3eam or ore body as by sinking
shafts and driving drifts, as well as installing the requisite
equipment.
b. Work 0£ driving openings to and in a proved oce
body to prepare it for mining and transporting the ore . . • . "

1/

Manwarcing indicated on cross-examination, that the main
the only way to go from the en~rance portal to the
eventual breakthrough.

~rift was

2; I do not find any merit in Respondent's position. In deteriining whether Respondent violated section 57.11050(a), ~uora,
Respondent's mining operation must be analyzed.
In this analysis
it is not relevant to consider whether Respondent ~as proceeding
in accord with statements made to it by Denton. This issue is
discussed, infra, wher2in Respondent's negligence is discussed.

2376

On March 1, 1989, Manwarring observed Respondent loading limestone at the face, and the production reports, for 1987 through
August 1989, indicated the various amounts of production tonnage
for that period.
Hence, Respondent was beyond the stage of
opening up the ore body or preparing it for mining, as it was
already engaged in mining.
Respondent has not adduced any
evidence which would tend to establish tnat its sole purpose in
establisning the drift from the portal to the face was for development of the second escapeway, rather than for the production of
limestone.
Hence, I conclude that on March 1, 1989, there was no
"development" of an ore body as the mine was·engaged in production.
Inasmuch as the subject mine had only one escapeway on March 1,
1989, I conclude that it has been established that Respondent
herein violated section 57.11050.
The citation in question all8ges that the violation herein
is significant and substantial.
Neither Manwarring nor Denton
offered their opinion on this issue. According to Manwarring, in
the event at the escapeway being blocked at the portal, the
miners would be trapped.
This could occur if there would be a
fire, roof fall, gas, or water between the area where the miners
would be working and the escapeway portal.
He indicated that
there were five trucks underground, either gas or diesel, and
there was a possibility of the trucks igniting due the presence
of flammable material. Denton indicated that if a truck would
catch fire it would get so hot that it would be impossible to
traverse the area, and that toxic gases would be emitted from
burning tires and upholstery. He also opined that in the event
of a Eire there would oe oxygen depletion.
He described the trucks as old and in need of some maintenance work, and indicated that the electrical wiring was
deteriorating due to the fact that it contained older materials.
He indicated _that he saw wires with broKen insulation.
However,
neither Denton nor High indicated specifically what wires did not
nave proper insulation, the length 0£ the improper installation,
what truc~s these wires were located on, and their specific
location.
De~ton indicated that there was accu~ulation of fuel
and grease pr~sent, ~ut ne did not describe its specific location
or quantity.
It is clear that the risk 0£ injury to miners at
the illine as the consequence of a fire certainly is contributed to
by the lack oi a second escapeway. However, although the evidence indicates that a fire could have occurred, there is
insu(f icient evidence to conclude that there wa3 a reasonable
likelihood of such occurring.
It is clear that a bloc~age of the
escapeway portal could have occurred, but tnere is insufficient
evidence to·conclude that this event was reasonably li~ely to
occur.
~ccordingly, it must be concluded that Petitioner has not
establiahed that the violation herein was s1gniiicant and substantial.
(See, Mathies Coal Co., 6 FMSHRC at 3-4 (1984)).

2377

According to Denton, there was a "sort of an agreement"
(Tr. 73) that Respondent would be allowed to have the drift go
from the entrance for about 100 feet, then go to the right
between 400 to 500 feet, and then go to the right again for about
100 feet until it broke out to the surface to create a second
portal. He indicated that a second escapeway parallel to the
main jrift was not ordered, as there was not enough room along
the side of' the hill, where the main portal was located, to
create another portal entrance. According to Denton, he indicated to Je£fe~y Staton that the drift to the surface was to be a
main priority.
He iridicated that in 1987, he visited the mine
and advised Staton that, essentially, he was concerned with the
number of headings off the main drift, and aaked Staton to
consider mining from the surface down to the drift in order to
create an escapeway. He indicated that Staton told him tnat he
started at another point on the hill to open up a portal to go
down to the drift. According to Denton, in February oc March
1988, he returned to the mine and Staton advised him that he had
not had enough time to complete the drift. Denton indicated that
he told Staton to stop driving the other headings, and instead go
out to the surface. He said that Staton had told llim that he
felt he was entitled to a full 1000 feet of drift.
Manwarring indicated that when he inspected the mine on
November 2, 1988, there was a discussion with Staton witn regard
to the £equirement of a second escapeway, and Staton indicated
that he was in the process of driving a.heading to the outside to
establish an escapeway. Manwarring indicated that he returned
six more times, and on each visit he discussed the escapeway, and
Staton indicated that he waa working towards it, and would be
breaking out in a short period of time.
Brewer and Williams both
indicated tnat in a discussion on March 1, 1989, in essence,
Staton asked of Denton whether he had previously allowed Staton
1000 feet of drift, and Denton answered in the affirmative.
Respondent did noc rebut Manwarring's testimony with regard
to the numerous contacts, prior to March 1, 1989, that he had
wich Staton with regard to the escapeway.
Respondent did not
proffer the testimony of any person in management responsible for
decision1na~1ng with regard to any circumstances which would
excuse Respondent from having failed to have a second escapeway
or to maKe one. Accordingly, it is concluded that Respondent
herein actea with a high degree of negligence in not having a
second escapeway.
I iind tnat the lack of a second escapeway, with three
miners working underground, is a moderately serious violation.
Further, Respondent herein acted with a nigh degree of negligence.
Taking these factors into account, as well as tt1e remaining
factors in seccion llO(i) ot the Act, as stipulated to by the
Parties, I conclude that penalty herein of $200 is proper.

2378

II.

Citation Nos. 3253522, 3253523,
3253524, and 3253525

On November 6, 1989, a Joint Motion for Approval of
Settlement was filed concerning the above Citations. The Joint
Mocion proposes a reduction in penalties from $199 to $145.
I
have considered the representations and documentation submitted
in this ca3e, and I conclude that the proffered settlement is
appropriate under the criteria set forth in Section llO(i) of the
Act.
ORDER
It is ORDERED that Citation No. 3253320 be amended to reflect
chat the violation therein is not significant and substantial.
It
is further ORDERED that Respondent shall pay, within 30 days of
this Decision, $345 as a civil penalty for the violations found
nerein.

Distribution:
'l'homas A. Groo1ns, Esq., Office of the Solicitor, U. S. Department
0£ Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Cer~iiied Mail)
Jeffrey T. Staton, Vice President, Mountain Parkway Stone, Inc.,
RR #1, Box 309B, Stanton, KY 40380 (Certified Mail)
dcp

2379

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

November 29, 1989
CIVIL PENALTY PROCEEDING

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

Docket No. YORK 89-45-M
A. C. No. 30-00006-05527
Blue Circle Atlantic

v.
BLUE CIRCLE ATLANTIC, INC.,
Respondent

ORDER ACCEPTING SETTLEMENT MOTION
DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

This case is before me pursuant to the Commission's order
dated November 20, 1989, to determine whether good cause exists
to now accept the late filed settlement motion.
In his motion to reopen filed November 14, 1989, operator's
counsel advises that he and the Solicitor had been engaged in
extensive settlement negotiations regarding this case. He also
states that from November 3 to November 11 he had been engaged in
litigation matters outside his office and away from Chicago and
therefore did not become aware of the default order until November 11, 1989. In a telephone conference call on November 13,
1989, operator's counsel and the Solicitor previously advised me
of the foregoing circumstances and I told them that under the
present state of Commission regulations I was without jurisdiction to determine whether relief from the default was warranted until the Commission treated the request for relief as an
appeal and remanded the matter back to me. This has now occurred.
In view of the ongoing settlement negotiations and the
absence of operator's counsel from his office and city on other
professional matters, I conclude that relief is warranted and
that the filing of the settlement·motion should be accepted.
The subject citation was issued for a violation of 30 C.F.R.
56.9003 because a haulage truck was not provided with adequate
brakes. The penalty was originally assessed at $900 and the
proposed settlement is for $600. The settlement motion represents that negligence is less than originally thought because the
truck in issue had been inspected shortly before citation Aas
§

2380

issued.
In ·light of this circumstance and because the proposed
settlement remains a substantial amount, I conclude it should be
approved.
In light of the foregoing, it is ORDERED that late filing of
the settlement be APPROVED.
It is further ORDERED that the motion for settlement be
APPROVED.
It is further ORDERED that the operator PAY $600 within ·30
days from the date of this decision.

~\~

· Paul Merlin
Chief Administrative Law Judge

Distribution:
Jane Snell Brunner, Esq., Office of the Solicitor, U. S. Department of Labor, 201 Varick Street, Room 707, New York, NY 10014
(Certified Mail}
Mark A. Lies, II, Esq., Seyfarth, Shaw, Fairweather & Geraldson,
Blue Circle Atlantic Inc., Suite 4200, 55 East Monroe Street,
Chicago, IL 60603
(Certified Mail}
/gl

2381

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

22041

NOV .3 0 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
APMINISTRATION, (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 88-118-M
A.C. No. 03-01551-05502
Malvern Minerals South Mine

MALVERN MINERALS COMPANY,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINSITRATION, (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 88-129-M
A.C. No. 03-01551-05501 D9M
Malvern Minerals South Mine

S E C 0 INCORPORATED,
Respondent
CIVIL PENALTY PROCEEDINGS

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

Docket No. CENT 88-130-M
A.C. No. 03-01551-05501 W6C
Malvern Minerals South Mine

v.
GARRETT EXCAVATING, INC.,
Respondent
DECISION
Appearances:

Before:

Robert A. Fitz, Esq., Office of the Solicitor,
u. s. Department of Labor, Dallas, Texas for
Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll,
Professional Corporation, Pittsburgh,
Pennsylvania for Respondent Malvern
Minerals Company;
Mark Moll, Esq., Jones, Gilbreath, Jackson &
Moll, Fort Smith, Arkansas for Respondent SECO, Inc.,
J.E. Sanders, Esq., Wooton, Glover, Sanders &
Slagle, Hot Springs, Arkansas for Respondent Garrett
Excavating, Inc.

Judge Melick

These consolidated civil penalty proceedings are before
me upora separate petitions filed by the Secretary of Labor
against the named Respondents pursuant to section 105Cd) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq., the "Act."
The petitions allege violations
developed from an investigation by the Secretary of a fatal
highwall failure at the Malvern Minerals Company (Malvern)
South Mine on October 2, 1987. The general issue before me
is whether there have been any violations of the cited
regulatory standards and, if so, the appropriate civil
penalties to be assessed in accordance with Section llO(i) of
the Act.
Background
On October 2, 1987, at about 11:10 a.m., Phil Keeton, a
backhoe operator employed by Garrett Excavating Inc.
(Garrett), and Bill Williams, a self employed driller, were
killed when a highwall collapsed. The evidence sttows that
Keeton had been employed by Garrett for about 3 1/2 years as
a backhoe operator and for the latter 1 1/2 years as a crew
leader. He had a total of 40 years mining experience with
about one year at the South Mine. Williams had 27 years
mining experience with about 3 weeks experience at the South
Mine.
The Malvern South Mine is a novaculite quarry located
near Hot Springs, Arkansas. Bill Williams was contracted by
Malvern to perform the drilling, SECO, Inc., (SECO) waa
contracted to load and detonate explosives in the drilled
holes and Garrett was contracted to load and haul the broken
ore and rock. Malvern directed the overall mining sequence.
The mine operated intermi ttantly, producing for abo,ut
4 months with a 2 month period during which the mill
continued to process stockpiled ore. When the mine was
producing it employed one Malvern employee and 6 contract
employees on one shift of 10 hours a day 6 days a week.
Mining was performed by drilling and blasting a highwall
creating a single bench. The bench would then be removed as
mining progressed.
The South Mine contains three stratigraphic units
sloping approximately 43° to the northwest. These units have
been overturned and are, therefore, stratigraphically upside
down.
The· topmost unit, the Lower Novaculite, is a bed of
hard, brittle novaculite.
Underlying this is the Middle
Novaculite unit--a shale unit containing about 3% graphite.
The lowest unit, approximately 30 feet thick, is the Upper
Novaculite. According to the record this unit consists of a
soft tripolitic novaculite.

2383

Mining had initially progressed from the southwest end
of the pit to the northeast to a depth of about 450 feet when
the direction was reversed. In October 1987 mining
operations were again be~ng conducted in the southwest end of
the pit. The pit had been deepened to 80 feet at the time of
tne accident. On the first pass a bench had been lowered
about 50 feet by October 2nd along a distance of about 150
feet.
The highwall in the immediate accident area ranged
from 80 to ~O feet high and was sloped Dack at an angle of
about 63°.
Docket No. CENT 88-118-M
In this case the Secretary maintains that she has
charged Malvern under Citation No. 2659481 with three
violations of the regulatory standards.
In proposing a civil
penalty the Secretary separated the citation into three parts.
Under Part A the Secretary purports to charge a violation of
the standard at 30 C.F.R. § 56.3200 and seeks a penalty of
$10,000. Under Part B the Secretary purports to charge a
violation of 30 C.F.R. § 56.3130 and seeks a penalty of
$4,000. Finally, under Part C the Secretary purports to
charge a violation of
30 C.F.R. § 56.3401 and seeks a
penalty of $1,000.~/
On the face of the subject citation the Secretary
charges a violation of the standard at 30 C.F.R. § 56.3200
and alleges as follow~:
Two employees of contractors to Malvern Minerals
were fatally injured when an unplanned slope
failure occurred. Several thousand tons of large
boulders and loose materials from the approximately
70 foot pit highwall fell completely burying and
crushing the operator of a track drill and the
operator of a track mounted· backhoe. Management of
Malvern Minerals and associated contractors and
equipment operating personnel of the contractors
had observed and were concerned about the highwall
condition including a cap rock overhang (the large
boulder3 mentioned above) which orotruded
approximately 8 ieet out from th~ highwall and was
approximatelt 16 feet thick by 100 feet long.
1/Malvern presents persuasive arguments in its post
heariiig brief that the citation herein failed to comport with
the Section 104(a) particularity requirements and t~at the
Secr2tary has improperlt proposed penalties in excess of
$10,000 for what is arguaoly only one violation.
In light of
che disposition of the cication(s) herein there is no need to
address these issues. ·

2384

A tension crack varying from 3-7 inches wide exists
back from the brow of the highwall running from the
area of failure, angling NNE, back from the
highwall for a distance of approximately 150-200
feet to a point north-east of the area of failure
35 feet back from the highwall.
The cited standard provides as follows:
Ground conditions that create a hazard to persons
shall be taken down or supported before other work
or travel is permitted in the affected area. Until
corrective work is completed, the area shall be
posted with a warning against entry and, when left
unattended, a barrier shall be installed to impede
unauthorized entry.
The cited standard clearly presupposes that the ground
conditions that create a hazard have manifested themselves so
that they can be discovered by appropriate examination of the
ground (as required by the standard at 30 C.F.R. § 56.3401)
and so that they can be corrected.
The purpose of the
regulation is to require elimination of hazardous conditions.
It is not to make the operator a guarantor
protecting
against unforeseeable or hidden hazards. If indeed an
appropriate examination, performed as required under section
56.3401 would not have revealed a hazardous ground condition
it may reasonably inferred that there could be no violation
of section 56.3200.
Inasmuch as I have found, infra, that examination of
ground conditions above the highwall was not required under
30 C.F.R. § 56.3401 I cannot find that there was any
violation of 30 C.F.R. § 56.3200. In sum, since I have
found that Malvern performed the required examination of
ground conditions by "persons experienced in examining and
testing for loose ground" and those persons did not upon such
examination discover any ground conditions that created a
hazard "before other work or travel [was] permitted in the
affected area", there was in any event no violation of the
standard at 30 C.F.R. § 56.3200.
The Secretary, in her post hearing brief, maintains in
particular that a crack in the ground above the highwall
existed for several weeks before October 2nd and that it
should have been discovered and corrected. This argument is
predicated however upon the inre~ence that because the crack
existed after the highwall collapsed it also existed before
the collapse. Any such inference must however be inherently
reasonable and there must be a rational connection between
the evidentiary facts and the ultimate fact inferred. Here
the required nexus is absent. See Mid-Continent Resources, 6

2385

FMSHRC 1132 (1984), Garden creek Pocahontas, 11 FMSHRC
November 21, 1989.
In this regard I note that the crack in the ground above
the highwall was not even discovered until October 5, three
days after the highwall failure and a period of time during
which additional ground movement could have been triggered by
the initial failure. Moreover Irvin Garrett was in the
iCILmediate vicinity of the failure area the day before the
failure and testified credibly that he saw no sign of a crack.
Even the Secretary's witnesses conceded that the crack could
have developed at the time of the highwall failure.
The persuasive expert testimony of Mssrs. Steuart and
Blancke also convinces me that the Secretary's preferred
inference that the crack existed before the highwall
collapse is based on unreliable speculation. The preferred
inference is accordingly rejected. For this additional
reason the alleged violation has not been proven and Part A
of Citation No. 2659481 must be vacated.
Part B of Citation No. 2659481 purports to charge a
violation of the standard at 30 C.F.R. § 56.3130 and alleges
as follows:
The slope failure was induced because the bench was
removed from the area ot failure resulting in the
highwall being too steep for the existing rock
structures. The company failed to use safe mining
practices including the proper use of benching
which had been discontinued for economic concerns.
The cited standard provides as follows:
Mining methods shall be used that will maintain
wall, bank, and slope stability in places where
persons work or travel in performing their assigned
tasks. When benching is necessary; the width and
height shall be based on the type of equipment used
for cleaning of benches or scaling of walls, banks
and slopes.
The Secretary charges in this part of the citation that
Malvern failed to construct appropriate benches on the
highwall. The cited standard requires benching however only
when ''necessary". Since the determination of when benching
is "necessary" within the meaning of the cited standard is
subjective, the standard must appropriately be measured, in
order to pass constitutional muster, against the standard of
whether a reasonably prudent person familiar with the factual
circumstances surrounding the allegely hazardous condition,
including any facts particular to the mining industry, would

2386

recognize a hazard warranting corrective action within the
purview of the regulation. Alabama By-Products Corporation,
4 FMSHRC 2128 (1982); Canon Coal Co., 9 FMSHRC 667 (1987);
Ozark-Mahoning Co., 8 FMSHRC 190(1986)
In this case it is undisputed that before the rock fall
here at issue the superintendent of the South Mine, Charles
Steuart, sought approval from the District Office of the
Federal Mine Safety and Health Administration (MSHA) in
Little Rock, Arkansas to discontinue the practice of benching.
Steuart submitted his proposal to Billy Richie, the MSHA
District Manager having inspection authority over the South
Mine, in 1979. According to the unchallenged testimony of
Steuart, Richie verbally approved this method of mining for
the South Mine. The evidence further shows that in spite of
both State and Federal inspections since that date (until the
citation at bar) Malvern had never been cited for failure to
utilize benches at the South Mine although the practice of
mining without benches was continuously followed.
While in hindsight several of the Secretary's witnesses
concluded at trial that the practice of benching should have
been followed at the South Mine the evidence is clear that
preceding the accident, all persons familiar with the
conditions at the mine, including MSHA officials, had
approved of the practice of mining without benching. I
cannot therefore find that the standard as applied in this
case did indeed require "benching" at the South Mine prior to
the date of the accident. Accordingly there was no violation
as alleged.
Part B of Citation No. 2659481 must therefore
also be vacated.
Part C of the citation alleges a violation of the
standard at 30 C.F.R. § 56.3401 and charges as follows:
A contributing factor to the injuries
resulting from the ground failure was the fact that
supervisors or other designated persons had not
examined the top of the pit highwall for hazardous
ground conditions at least weekly. The absence of
inspection and examination precluded the discovery
of the tension crack existing in the ground behind
the highwall. The pit had ceased operation in June
1987 and reopened September 3, 1987. The last
known examinaiion of the area behind the highwall
occurred in June 1987 when survey flags were placed
above· the brow. No cracks were observed during
this examination. Hignwall failure occurrad along
the line of survey stakes p~aced during the June
examination.
The cited standard, 30 C.F.R. § 56.3401, provides a3
follows:

2387

Persons experienced in examining and testing for
loose ground shall be designated by the mine
operator. Appropriate supervisors or other
designated persons shall examine and, where
applicable, test ground conditions in areas where
work is to be performed prior to work commencing,
after blasting, and as ground conditions warrant
during the workshift. Highwalls and banks
adjoining travelways shall be examined weekly or
more often if changing ground conditions warrant.
At hearing the Secretary narrowed the charges to a
failure by "appropriate supervisors or other designated
persons" to have tested ground conditions in "areas where
work is to be performed prior to work commencing". In
particular the Secretary now maintains that the area above
the pit highwall should have been included as part of the
required examination.
Because of the imprecision and subjectivity of
the regulatory language requiring examinations in "areas
where work is to be performed" this regulation too must
appropriately be measured against the standard of whether a
reasonably prudent person familiar with the factual
circumstances surrounding the allegedly hazardous condition,
including any facts particular to the mining industry, would
recognize a hazard warranting corrective action within the
purview of the applicable regulation. Alabama By-Products
Corporation, supra.
The Secretary offered no evidence in this case to show
that in the mining industry an examination of the work area
would ordinarily include the ground above the highwall.
Indeed the MSHA inspector responsible for inspecting the
South Mine before this accident acknowledged that he did not,
as part of his inspections of th~ mine, examine the area
above the highwall nor did he require such inspections by the
mine operator. The practice was to examine the highwall by
standing back from the base and visually observing the
exposed face.
Moreover the expert witnesses produced by Malvern,
Dudley Blancke and Charles Steuart, testified that it was not
the industry practice to examine the ground above the
highwall. Within this framework of ~vidence I cannot
conclude that the area above the highwall was an area subject
to the testing of ground conditions under the cited
regulatory provisions. ~ccocdingly that part of Citation
No. 2659481 alleging a violation of 30 C.F.R. § 3401, must
also be vacated.

2388

ORDER
Citation No. 2659481 (A) (B} and (C} is hereby vacated
and Civil Penalty Proceeding Docket No. CENT 88-118-M is
dismissed.
Docket No. CENT 88-129-M
In this case the Secretary has charged SECO Incorporated
(SECO} in Citation No. 3063001 with one violation of the
standard at 30 _C.F.R. § 56.3401. ·rhe citation alleges as
follows:
On October 2, 1987 a massive highwall failure
fatally injured one employee of each of two
contractors other than SECO. The lone SECO
employee assigned to this mine was not
knowledgeable or experienced in examining and
testing for loose ground conditions. This resulted
in the abs~nce of any examination of ground
conditions on top of the pit highwall. This
employee narrowly escape being buried by the
highwall failure.
At hearing the Secretary charged that the only employee
of SECO assigned to the mine was neither properly
"designated" by the mine operator nor "knowledgeable or
experienced in examining and testing for loose ground
conditions" within the meaning of the cited standard.
On the fa-ce of the citation however the Secretary did not
allege that the SECO employee was not properly designated but
only that he was·"not knowledgeable or experienced in
examining and testing for loose ground conditions." She is
accordingly limited to only those allegations charged in the
citation.
In addition the Secretary cites no evidence in her post
hearing brief to support this charge and, to the contrary,
the overwhelming uncontradicted evidence is that the lone
SECO employee was indeed "knowledgeable" and "experienced" in
examining and testing for loose ground. This employee, Glen
"Buzz" Brown, had 3 years experience in the mining industry
and was a certified blaster. He testified that on the date
of the accident he followed his practice of visually
examining the face of the highwall before commencing work and
found no dangerous conditions.
Moreover 3ince I have found that examination of ground
conditions in the area above the highwall was not required by
established MSHA and industry practices before this accident
I cannot infer from the failure of Brown to have examined the,
area above the highwall that he was not qualified to perform
the examinations required. Under the circumstances the
citation must be vacated.
2389

ORDER
Citation No. 3063001 is vacated and Civil Penalty
Proceeding Docket No. CENT 88-129-M is dismissed.
Docket No. CENT 88-130-M
The Secretary charges Garrett Excavating Inc. (Garrett)
under Citation No. 2659482 with one violation of the
regulatory standard at 30 C.F.R. § 56.3401 and charges as
follows:
The lead person of the crew of the contractor was
fatality injured when a massive ground/slope
failure occurred. This person was not properly
experienced in testing and examining loose ground
conditions, resulting in the absence of an
examination of the top of the pit highwall. The
lead person was designated to insure the safe
working conditions surrounding the crew.
The essence of the Secretary's allegations here is that
because the designated person failed to examine the ground
above the pit highwall that person was therefore not
"properly experienced in testing and examining loose ground
conditions". However for the reasons already cited in regard
to the disposition of similar charges against Malvern
Minerals and SECO in this decision I also vacate this
citation. Lack of experience in testing cannot be infer.red
from the failure to have examined above the pit highwall
since the established industry and MSHA practice did not
include such examinations.
ORDER

f'iJl_

Citation No. 2659482 is vacated and Civll Penalty
Proceeding Docket
No. CENT 38-13 0-MJ is dismi:\;ed.

~
1
~fl)/~'\µQXJ \ .
.

.

- \)

cjary r-telick
\
Admidistrative Gaw Judge
(703~~756-6261 '

2390

l

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

'.·''".!\'
')01989
N
tJ V ,,

KATHLEEN I. TARMANN
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. LAKE 89-56-DM

INTERNATIONAL SALT COMPANY,
Respondent

MD 89-10
Cleveland Mine

ORDER OF DISMISSAL
On November 6, 1989, Complainant's Attorney advised my
Secretary that the matters in dispute in this case had been
settled by the Parties.
On November 15, 1989, a Show Cause Order was issued which
provided as follows:
Accordingly, Compainant shall, within 10 days
of this Order, show cause why this case shall not be
dismissed. Failure of Complainant to respond to this
Order shall result in this case being dismissed
pursuant to 30 C.F.R. § 2700.62(a).
Complainant has not filed any response to the Show Cause
Order.
Accordingly, pursuant to 30 C.F.R. § 2700.62(a), it is
ORDERED that this case be DISMISSED

~~

Avram Weisberger
Administrative Law Judge
Distribution:
Richard Valore, Esq., Valore, Moss & Kalk, 75 Public Square,
Suite 300, Cleveland, OH 44113 (Federal Express)
Keith A. Ashmus, Esq., Thompson, Hine and Flory, 1100 National
City Bank Building, 629 Euclid Avenue, Cleveland, OH 44114-0370
(Federal Express)
dcp

2391

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

20006

.November 30, 1989

DISCRIMINATION PROCEEDING

FREDRICK J. BOUCHER,
Complainant

Docket No. PENN 89-248-D
PITT CD 89-18

v.
Svonavec Strip Mine
SVONAVEC COAL INC.,
Respondent
ORDER OF DISMISSAL
Before:

Judge Merlin

On July 28, 1989, you filed with this Commission a complaint
of discrimination under section 105(c) of the Federal Mine Safety
and Health Act of 1977. On October 4, 1989, a show cause order
was issued directing you to provide information regarding your
complaint or show go.od reason for your failure to do so.
You
were specifically told that if you did not comply with the order
your complaint would be dismissed.
The show cause was mailed to
you certified mail, return receipt requested and the file contains the receipt card indicating you received the show cause
order.
You have however, not responded and complied with the
show cause order.
Accordingly, this case is DISMISSED.

=

Paul Merlin
Chief Administrative Law Judge

Distribution:
Mr. Frederick Boucher, R.D. #3, Rockwood, PA
Mail)

15557

(Certified

svonavec Coal Inc., 140 West Union Street, Somerset, PA
{Certified Mail)
/gl

2392

15501

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

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 89-86-M
A.C. No. 05-03998-05513 NYO

v.

Summitville Mine

INDUSTRIAL CONSTRUCTORS
CORPORATION,
DECISION APPROVING SETTLEMENT
Before:

Judge Morris

This is a civil penalty proceeding initiated by the
petitioner against respondent in accordance with the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et~·
The civil penalties sought here are for the violation of
mandatory standards promulgated pursuant to the Act.
Prior to a hearing the petitioner filed a motion seeking
to settle the case. Correspondence filed with the settlement
indicated respondent has been appraised of the proposal. The
citations, the original assessments and the amended civil
penalties, are as follows:
Citation No.

Assessment

Disposition

2876658
2876656

$9 8. 0 0
20.00

$20.00
20. 0 0

In support of their motion to approve the settlement the
parties have submitted information relating to the statutory
criteria for assessing penalties as contained in 30 u.s.c.
§ 820(i).
I have reviewed the proposed settlement and I find it is
reasonable and in the public interest.
tt should be approved.
Accordingly, I enter the following:

2393

ORDER
1.

The settlement agreement is approved.

2.
The foregoing citations and civil penalties, as amended,
are affirmed.

3. Respondent has paid the $20 assessment for Citation
No. 2876656.
Accordingly, respondent is ordered to pay the
petitioner the sum of $20 for the violation of Citation 2876658
within 40 days of the date of this decision.

Law Judge

Distribution:
Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294
CCertif ied Mail)
Mr. Dave Ohler, Washington Corporations, 101 International Way,
P.O. Box 8182, Missoula, MT 59807 (Certified Mail)
/ct

2394

ADMINISTRATIVE LAW JUDGE ORDERS

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

November 3, 1989
DISCRIMINATION PROCEEDING

RICHARD R. MAYNES,
Complainant

Docket No. CENT 89-132-DM

v.
MD 89-35
PHELPS DODGE CORPORATION,
Respondent
ORDER DENYING RESPONDENT'S MOTION FOR SUMMARY DECISION
Complainant, by written Response filed herein on November 1,
1989, has responded to Respondent's Motion for Summary Decision
which was filed on September 11, 1989. Complainant's response is
found to have merit·and it and the exhibits attached thereto are
incorporated herein as the initial portion of my decision on this
issue. It is further noted that Respondent neither alleged or
established that Complainant's initial delay in filing with
MSHA prejudicially deprived it of a meaningful opportunity to
defend itself in this matter. There is no allegation of specific
prejudice or even of general prejudice.
See Schulte v. Lizza
Industries, Inc., 6 FMSHRC 8 (January, 1984). The delay of
Complainant Maynes in filing with the Secretary - approximately
27 days - is not of a duration where one might infer unavailability of or loss of memory of critical witnesses.
It is also specifically held, absent further Commission
precedent, that the time limitations of Section 105(c) of the Act
insofar as such pertain to individual complainants are not jurisdictional. Secretary v. 4-A Coal Company, Inc., 8 FMSHRC 905
(June, 1986); Buelke v. Thunder Basin Coal Company, 11 FMSHRC 240
(February, 1989). To hold individual complainants to a higher
standard of filing compliance than the Secretary of Labor would
not seem logical or justified in view of the disparity in educational background, legal and business experience, and experience
in and familiarity with mine safety processes and requirements.
Accordingly, Respondent's motion for summary judgment is denied.
The parties, and their counsel, are directed to forthwith
comply with the requirements of my Prehearing Order of September
27, 1989.

.· ~#~~.,/ ~ rfi~\/ ff~

·~ichael ~. ~asher, ~r.

Administrative Law Judge

2395

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

22041

November 16, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 89-103
A.C. No. 46-07310-03501 AUJ

v.
Logan County No. 1 Mine
2 K LEASING,
Respondent
ORDER DENYING .MOTION TO APPROVE SETTLEMENT
On November 13, 1989, the Secretary filed a motion to
approve a settlement in this case. The docket involves a
single alleged violation originally assessed at $2000. The
motion proposes that it be reduced to $1000.
The citation involved herein alleges a violation of
30 C.F.R. § 77.1605(b) because a coal haulage truck was not
provided with adequate brakes. The motion states that the
brake defect was a partial cause of a coal haulage accident
which resulted in the truck driver being fatally injured.
The motion states that the reduction in the penalty is
justified because Respondent's business is very small and
"the penalty threatened to reduce its ability to continue
in business." No factual justification for this conclusion
was provided. The size of Respondent's business and its
favorable history of prior violations were presumably
considered in assessing the penalty originally. The effect
of a penalty on its ability to continue in business, if
relied upon to reduce the penalty, must be supported by
factual data.
Accordingly, the motion to approve the settlement
agreement is DENIED.
IT IS FURTHER ORDERED that unless additional factual
support for a renewed motion is submitted, the parties shall
respond by December 8, 1989, to paragraph 2 of the Prehearing
Order of July 25, 1989, and advise me of any dates in
January or February 1990 which would pose scheduling difficulties.

11~ ~,#/Wcl~)

~ames A. Broderick

Administrative Law Judge

2396

Distribution:
Mark Malecki, Esq., u ..s. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Rm. 516, Arlington, VA 22203
(Certified Mail)
Vaughn Groves, Esq., P.O. Box ?53, Charleston, WV 25322
(Certified Hail)
slk

~u.s.

G.P.O. 1989-261-102:04762

2397