SEPTEMBER 1987
Commission Decisions
09-30-87
09-30-87
09-30-87
09-30-87
09-30-87
09-30-87
~'<12-19-86

NACCO Mining Company
White County Coal Corporation
Emerald Mines Corporation
Greenwich Collieries
Quinland Coals, Inc.
Odell Maggard v. Chaney Creek Coal Corp.
Garry Goff v. Youghiogheny & Ohio Coal Co.

LAKE 85-87-R
LAKE 86-58-R
PENN 85-298-R
PENN 85-188-R
WEVA 85-169
KENT 86-1-D
LAKE 84-86-D

1541
Pg. 1578
Pg. 1590
Pg. 1601
1614
Pg. 1627
1630

Administrative Law Judge Decisions
09-08-87
09-08-87
09-10-87
09-15-87
09-18-87
09-18-87
09-21-87
09-22-87
09-23-87
09-25-87
09-25-87
09-28-87
09-29-87
09-29-87
09-29-87

Sec. Labor for George Jones v. Dee Gold
Mining Company
Neil Sprague
Paula L. Price v. Monterey Coal Co.
Arnold Sharp v. Big Elk Creek Coal Co.
Local 1810, UMWA v. NACCO Mining Company
Consolidation Coal Company
Freeman United Coal Mining Co.
Utah Power and Light Company
Sec. Labor for James C. Gray, Jr. v.
Chaney Creek Coal Corp. etc.
Timber Lakes Corporation
Sec. Labor for Bryant M. Hatfield, Jr. v.
Smith Brothers Construction Inc.
Westmoreland Coal Company
Richard W. Peters, Sr. v. Buckeye
Industrial Mining Co., Inc.
Jim Walter Resources, Inc.
Jim Walter Resources, Inc.

WEST 85-131-DM Pg. 1631
WEST 87-129-M
LAKE 86-45-D
KENT 86-149-D
LAKE 87-19-C
WEVA 87-66
LAKE 86-67
WEST 87-101
KENT 86-55-D

Pg. 1660
1662
Pg. 1668
Pg. 1671
Pg. 1675
Pg. 1678
Pg. 1688
Pg. 1690

WEST 86-250-M
WEVA 87-156-D

Pg. 1692
Pg. 1702

HOPE 78-236
LAKE 87-37-D

Pg. 1705
. 1707

SE
SE

Pg. 1711
Pg. 1713

87-91
87-95

was discovered that the decision, Garry Goff v. Youghiogheny and Ohio,
LAKE 84-86-D was not published in its entirety in the December, 1986 volume.
We are reprinting it at this time, but cites should refer to the December
publication.

~·~rt

SEPTEMBER 1987
Review was granted in the following cases during the month of September:
Western Fuels-Utah v. Secretary of Labor, MSHA, Docket No. WEST 86-113-R,
etc. (Judge Maurer, August 4, 1987)
Harley Smith v. Bow Valley Coal Resources, Inc., Docket Nos. KENT 86-23-D,
KENT 86-84-D. (Judge Weisberger, August 19, 1987)
Secretary of Labor on behalf of Bryan Pack v. Maynard Branch Dredging
Company and Roger Kirk, Docket No. KENT 86-9-D. (Judge Fauver, August 20, 1987}
Secretary of Labor on behalf of Joseph Gabossi v. Western Fuels-Utah, Inc.,
Docket No. WEST 86-24-D. (Judge Morris, August 21, 1987)
No cases were filed in which review was denied.

CO:M.MISSION DECISIONS

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

September 30, 1987
NACCO MINING COMPANY
Docket No. LAKE 85-87-R

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 86-2

v.
NACCO MINING COMPANY
and
UNITED MINE WORKERS OF
AMERICA (UMWA)

BEFORE:

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

BY:

Backley, Doyle and Nelson, Commissioners

This proceeding arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (1982), and involves the issuance
of a citation pursuant to section 104(d)(l) of the Mine Act by an
inspector of the Department of Labor's Mine Safety and Health Administration ( 11 MSHA 11 ) as a result of an inspection conducted pursuant to
section 10.3(g)(l) of the Act. ll Commission Chief Administrative Law

ll

Section 104(d)(l) states:
If, upon any inspection of a coal or other mine,

1541

Judge Paul Merlin held that although a violation was established, the
section 104(d)(l) citation was not properly issued because the cited
violative event had occurred several days before the inspector visited
an authorized representative of the Secretary finds
that there has been a violation of any mandatory
health or safety standard, and if he also finds
that, while the conditions created by such violation
do not cause imminent danger, such violation is of
such nature as could significantly and substantially
contribute to the cause and effect of a coal or
other mine safety or health hazard, and if he finds
such violation to be caused by an unwarrantable
failure of such operator to comply with such
mandatory health or safety standards, he shall
include such finding in any citation given to the
operator under this [Act]. If, during the same
inspection or any subsequent inspection of such mine
within 90 days after the issuance of such citation,
an authorized representative of the Secretary finds
another violation of any mandatory health or safety
standard and finds such violation to be also caused
by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring
the operator to cause all persons in the area
affected by such violation, except those persons
referred to in subsection (c) of this section to be
withdrawn from, and to be prohibited from entering,
such area until an authorized representative of the
Secretary determines that such violation has been
abated.
30 u.s.c. § 814(d)(l).
Section 103(g)(l) states in part:
Whenever a representative of the miners or a miner
in the case of a coal or other mine where there is
no such representative has reasonable grounds to
believe that a violation of this [Act] or a
mandatory health or safety standard exists ... such
miner or representative shall have a right to obtain
an immediate inspection by giving notice to the
Secretary or his authorized representative of such
violation or danger .•.. Upon receipt of such
notification, a special inspection shall be made as
soon as possible to determine if such violation or
danger exists in accordance with the provisions of
this [Title]. If the Secretary determines that a
violation or danger does not exist, he shall notify
the miner or representative of the miners in writing
of such determination.
30 u.s.c. § 813(g)(l).

1542

the mine. The judge concluded that since the inspector had been engaged
in the investigation of a past event rather than in an inspection of an
existing condition, only a section 104(a) citation could be issued.
8 FMSHRC 59 (January 1986)(ALJ). The Commission granted the petition
for discretionary review filed by the United Mine Workers of America
11
(
UMWA 11 ) and heard oral argument. We conclude that the Mine Act permits
the issuance of a section 104(d)(l) citation under the circumstances
presented in this case. Therefore, we reverse and remand.
Nacco's Powhatan No. 6 mine is an underground coal mine located in
eastern Ohio. On Friday, May 31, 1985, the miners' representative at
the mine requested, by telephone and confirmatory letter, that MSHA
conduct an examination of "long cuts" being made at the mine. 2/ The
request referenced a specific long cut alleged to have occurred on the
previous day. The letter stated that "[t]his re-occurring [sic]
violation has been discussed with mine management several times since
January 1985 by the UMWA and MSHA without getting this practice
stopped." The letter further suggested that criminal action might be
appropriate.
MSHA inspectors arrived at the mine on the following Monday, June
3, 1985. The inspectors went underground to the location where the long
cut allegedly had occurred. Through observations and measurements, the
inspectors determined to their satisfaction that a long cut had been
made on May 30, and that in making the cut the continuous miner operator
was under unsupported roof, at least six feet beyond the last permanent
roof supports. On June 4, 1985, the inspectors returned to the mine and
further questioned the crew, union representatives, and mine management
about the long cut. On June 5, 1985, the inspectors issued to Nacco a
citation pursuant to section 104(a) of the Mine Act, 30 U.S.C. § 814(a),
charging that the continuous miner operator's proceeding under unsupported roof constituted a violation of 30 C.F.R. § 75.200. 3/ The
citation indicated that the violation was of a "significant and
substantial" nature.
On June 24, 1985, the MSHA sub-district manager reviewed the
citation. He concluded that the citation should have been issued
pursuant to section 104(d)(l) of the Mine Act because, in his opinion,
the violation was the result of Nacco 1 s unwarrantable failure to prevent
miners from proceeding under unsupported roof. He ordered the citation
modified accordingly, At the subsequent evidentiary hearing, Nacco did
not contest the allegation of a violation or that the viola' ion was
2/
A "long cut" occurs when a continuous mining machine ( 11 continuous
;iner") cuts coal from the coal face in such depth that the continuous
miner operator is placed beyond the last permanent roof support and
under unsupported roof.
}/
In relevant part, section 75.200 prohibits persons from proceeding
beyond the last permanent roof support, unless adequate temporary
support is provided or unless such temporary support is not required
under the approved roof control plan and the absence of such support
will not pose a hazard to the miners.

1543

significant and substantial. Rather, Nacco argued that the citation was
issued improperly under section 104(d) and that the violation was not
caused by its unwarrantable failure to comply with section 75.200.
In his decision, Judge Merlin held the section 104(d) citation to
be invalid because it was based on an investigation of a past happening,
rather than on an inspection of an existing condition. The judge relied
upon the unreviewed decisions of three Commission administrative law
judges: Westmoreland Coal Co., Nos. WEVA 82-304-R, etc. (May 4, 1983)
(ALJ Steffey)(unpublished order); Emery Mining Corp., 7 FMSHRC 1908
(November 1985)(ALJ Lasher); Southwestern Portland Cement Co., 7 FMSHRC
2283)(December 1985)(ALJ Morris). 4/ The judge quoted with approval
Judge Steffey's observations in We;tmoreland, supra, that section 104(d)
restricts the issuance of unwarrantable failure sanctions to existing
violations found during the course of an inspection and that Congress
intended to distinguish between the terms "inspection" and "investigation" in the Mine Act. 8 FMSHRC at 61-66. The judge also noted Judge
Lasher's statement in Emery, supra, that Congress viewed an investigation of a past occurrence as different from an inspection of a mine
site, and that the Act does not permit a section 104(d) sanction to be
issued based upon past occurrences. Judge Merlin noted that Judges
Steffey, Lasher, and Morris agreed that when an inspector is engaged in
the investigation of a past happening rather than an inspection of an
existing situation, section 104(d) sanctions cannot be issued. 8 FMSHRC
at 71.
The judge found the reasoning of his colleagues persuasive and
applied it to the facts at hand. The judge stated that when the
inspectors went to the mine on June 3 and 4, 1985, they were looking
into the circumstances of an event alleged to have occurred in the past
-- the continuous miner operator having proceeded beyond the last
permanent roof support on May 30, 1985. Because the inspectors were
investigating a past happening rather than inspecting an existing
condition, the judge held that they could not issue a citation under
section l04(d). 8 FMSHRC at 71-72. Accordingly, the judge modified the
citation to one issued under section 104(a),
Turning to the penalty aspect of the case, the judge concluded
that the violation was serious and that Nacco was grossly negligent in
allowing the violation to exist, He assessed a civil penalty of $5~000,
8 FMSHRC at 73-75,
The United Mine Workers of America sought Commission review on the
grounds that the judge erroneously interpreted the prerequisites for the
issuance of a citation under section 104(d). We granted the UMWA's
petition for discretionary review and heard oral argument in this and

!±I

Commission Administrative Law Judge William Fauver subsequently
reached an opposite conclusion in Florence Mining Co., 9 FMSHRC 1180
(June 1987)(ALJ), review directed, August 7, 1987. See also Rushton
Mining Co., 9 FMSHRC 800 (April 1987)(ALJ Broderick)(distinguishing
above decisions).

1544

three other cases that raise similar issues. ~/
The specific issue before us requires a determination of whether a
section 104(d) citation may be issued for a violative condition that no
longer exists when cited by the MSHA inspector. Such a determination
must take into account the overall enforcement scheme of the Mine Act
and its primary purpose of providing miners with more effective
protection from hazardous conditions and practices. 30 U.S.C. § 801.
See also Senate Subcommittee on Labor, Committee on Human Resources,
95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 82-86 (1978)(statement of Senator Williams)("Mine
Act Legis. Hist. 11 ) . In line with this purpose, section 2(e) of the Act
places primary responsibility upon "the operators of such mines with the
assistance of the miners ..• to prevent the existence of such [hazardous] conditions and practices in such mines." 30 U.S.C. § 80l(e).
As an incentive for operator compliance, the Act's enforcement
scheme provides for "increasingly severe sanctions for increasingly
serious violations or operator behavior. 11 Cement Division, National
Gypsum Company, 3 FMSHRC 822, 828 (April 1981). Sections 104(a) and
llO(a) provide that the violation of any mandatory standard requires the
issuance of a citation and assessment of a monetary civil penalty.
Under sections 104(b) and llO(b), if the operator does not correct the
violation within the prescribed period, the more severe sanction of a
withdrawal order is required, and a greater civil penalty is assessed.
30 U.S.C. §§ 814(b) and 820(b). Under section 104(d), if an inspector
finds a violation and also finds that the violation is of a significant
and substantial nature and has resulted from the operator's unwarrantable failure to comply with the standard, a citation noting those
findings is issued. This "section 104(d) citation" carries enforcement
consequences potentially more severe than section 104(b) sanctions. QI
If further unwarrantable failure violations occur within 90 days of the
citation issued under section 104(d), unwarrantable failure withdrawal
orders are triggered. Issuance of the withdrawal orders does not cease
until an inspection of the mine discloses no unwarrantable failure
violation. Kitt Energy Corp., 6 FMSHRC 1596 (July 1984), aff'd sub nom.
UMWA v. FMSHRC, 768 F.2d 1477 (D.C. Cir. 1985).

5/
Emerald Mines Corporation, 9 FMSHRC ~- (September 30, 1987);
White County Coal Corp., 9 FMSHRC ~-(September 30, 1987); Greenwich
Collieries, 9 FMSHRC ~ (September 30, 1987).
QI
The Secretary argues that only section 104(a) authorizes the
issuance of a citation and that it is, therefore, improper to refer to a
citation issued with section 104(d) findings, as here, as a "section
104(d) citation." For convenience and clarity, we have found it useful
to refer to a citation issued with section 104(d) findings as a section
104(d) citation. Consolidation Coal Co., 6 FMSHRC 189, 191-192
(February 1984). This shorthand form of expression is commonly employed
and understood. It was used by the parties at the hearing and by the
judge in his decision. Indeed, the citation here at issue was modified
by the sub-district MSHA manager to a ''104(d) type citation."

1545

The threat of this 11 chain 11 of citations and orders under section
104(d) provides a powerful incentive for the operator to exercise
special vigilance in health and safety matters because it is the conduct
of the operator that triggers section 104(d) sanctions, not the
coincidental timing of an inspection with the occurrence of a violation.
Indeed, Congress viewed section 104(d) as a key element in the overall
attempt to improve health and safety practices in the mining industry.
See S. Rep. No. 181, 95th Cong., 2d Sess. 30-32 (''S. Rep.") reprinted in
Mine Act Legis. Hist. 618-620. See also UMWA v. FMSHRC, supra, 768 F.2d
at 1479. To read out of the Act the protections and incentives of
section 104(d) because an inspector is not physically present to observe
a violation while it is occurring distorts the focus and blunts the
effectiveness of section 104(d). We discern no warrant for such a
formalistic approach.
The judge's invalidation of the use of section 104(d) for a prior
violation and his conclusion that section 104(d) may be used for
existing violations only, is not supported by the relevant statutory
language. Section 104(d)(l) does not state that enforcement action may
be taken only if the inspector finds a violation in progress. Rather,
section 104(d)(l) is triggered i f an inspector finds that there "has
been a violation" of a mandatory health or safety standard. Use of the
present perfect tense of the verb "to be" in this key context denotes a
wide, not narrow, temporal range covering both past and present
violations. Thus, by its own terms, section 104(d)(l) sanctions are
applicable to prior as well as existing violations, and nothing in the
text of section 104(d)(l) restricts their use solely to ongoing
violations.
Nor can the insistence on the inspector's personal observation of
an existing violation be reconciled with the obvious purpose of section
104(d). Throughout section 104(d), enforcement action is consistently
linked to the inspector's determination that a violation has resulted
from the operator's unwarrantable failure to comply with a mandatory
standard, The focus in section 104(d) is constantly upon the operator's
conduct in failing to comply with the cited mandatory standard, not upon
the current detection and existence of the violation. Under the
construction urged by Nacco, unwarrantable failure findings would
frequently be unavailable despite unwarrantable conduct on the part of
an operator.
We have resisted previous invitations to give the Mine Act a
technical interpretation at odds with its obvious purpose. In
Westmoreland Coal Co., 8 FMSHRC 1317, 1323-27 (September 1986), a case
involving the right of miners to compensation under section 111 of the
Mine Act, 30 U.S.C. § 821, we concluded that the chronological sequence
in which orders of withdrawal are issued is not determinative of the
right to compensation. We looked to the purpose of section 111 -- added
incentive for operator compliance through a graduated scheme of
compensation tying enlarged compensatory entitlement to increasingly
serious operator conduct. We noted the focus of section 111 as a whole
on operator conduct, and we declined to adopt a technical interpretation
of section 111 that thwarted its purpose.

1546

We follow a similar approach here and interpret section 104(d) in
a manner consistent with its purpose. Congress deemed that miners
should be protected from the hazards of recurring violations caused by
an operator's unwarrantable failure through the deterrent effect of the
progressively severe sanctions of section 104(d). Legis. Hist. at 619.
Yet, application of the judge's holding produces results at odds with
this intent. Under the judge's opinion, an operator who commits an
unwarrantable failure violation that is not detected by the inspector
until it has ceased to exist is free of the very sanction intended to
prevent similar failures in the future. The fact that such a violation
could be cited under section 104(a) and that a penalty would be assessed
for the violation, does not compensate for the loss of the heightened
awareness of unwarrantable violations that attends section 104(d)
sanctions and that is aimed at preventing such violations from occurring
in the first instance.
Further, detection of a violation after it has ceased to exist is
not uncommon. Many violations by their very nature cannot be, or are
unlikely to be, observed or detected until after they occur. For
example, the failure to perform a required pre-shift examination,
30 C.F.R. § 75.303, is usually detected after the shift has commenced,
and most health violations are determined after the fact of violation
through the analysis of samples and other data. See,~·· 30 C.F.R.
§ 70.100.
In fact, the violation at issue here, proceeding beyond the
last permanent roof support when no temporary support is provided, is
the type of violation that is unlikely to occur in the presence of the
inspector. Were we to agree with the approach adopted by the judge, the
statutory disincentive for operator misconduct would be lost. Zf
Nacco asserts that because section 104(d) refers only to
violations found "upon any inspection," whereas section 104(a) refers to
violations found "upon inspection or investigation, 11 Congress intended
to distinguish between enforcement actions based upon an inspection and
those based upon an investigation. Nacco argues that an "inspection"
denotes the time in which an inspector is physically present at the mine
(and actually observes a violation in progress), whereas an 11 investigation11 denotes an inspector's inquiry into a past violation. Therefore, according to Nacco, section 104(d) applies only to ongoing
violations observed by the inspector.
Although we are not required in this proceeding to decide the
meaning of "inspection" and "investigation" for all purposes under the
Mine Act, we are satisfied that, as used in section 104(d), Congress did
not intend the distinction urged by Nacco and approved by the judge. In
interpreting the conditions under which a section 104(d) sanction may
issue, we do not find significant the inclusion of the terms "inspection
or investigation" in section 104(a) and the term "inspection" alone in
section 104(d). The words are not defined in the Mine Act, and common

ZI

Although Nacco argues that untoward problems in terms of the "time
sequence" of section 104(d) will arise if section 104(d) is used to cite
violations that no longer exist, no issue with respect to the commencement and termination of the ninety-day period is before us on review.

1547

usage does not limit the meaning of "inspection" to an observation of
presently existing circumstances nor restrict the meaning of ''investigation" to an inquiry into past events. Webster's Third New International Dictionary (Unabridged) 1170, 1189 (1971) ("Webster's"). Both
words can encompass an examination of present and past events and of
existing and expired conditions and circumstances. ~/
The first major reference to both terms appears in section 103 of
the Act, 30 U.S.C. § 813, which pertains to inspections, investigations
and record keeping. While it is true that section 103 indicates that
inspection and investigation are, to some extent, distinct, it is also
clear that, as in common usage, the concepts are not intended to be
mutually exclusive. In particular, it is clear that an inspection is
not meant to preclude an inquiry into past events. Section 103(g) (n. 1
supra) provides to the representative of miners the right to obtain an
immediate "inspection" whenever the representative has reasonable
grounds to believe that a violation of a mandatory health or safety
standard exists. There is nothing in the language of section 103(g)
that requires the violation to be ongoing when the inspector arrives at
the mine site. As a practical matter, the violation may have been
corrected shortly after the request of the miners' representative and
before the inspector reaches the mine. Yet the inspector is nonetheless
on an "inspection" and, if he finds that a violation has occurred, he
may cite it using the full panoply of sanctions available under the Act.
Indeed, this case was instituted on the basis of a section 103(g)
inspection, requested by the representative of miners, after the
violation had occurred.
Further, we find in the legislative history of section 104(d)
indications that section 104(d) sanctions are not restricted to
occasions when an inspector observes an existing violation. Section
104(d) of the Mine Act was carried over without substantive change from
section 104(c) of the 1969 Coal Act. 30 U.S.C. § 801 et seq. (1976)
See also,~·· Atlantic Cleaners & Dyers~ Inc. v. U.S., 286 U.S.
427 (1932)-:-

£/

Most words have different shades of meaning and
consequently may be variously construed, not only
when they occur in different statutes, but when used
more than once in the same statute or even in the
same section.

It is not unusual for the same word to be used
with different meanings in the same act, and there
is no rule of statutory construction which precludes
the courts from giving to the word the meaning which
the legislature intended it to have in each
instance.

286 U.S. at 433-34.

1548

(amended 1977) ("Coal Act"). When Congress was contemplating the
provision that became section 104(c)(l) of the Coal Act, the House Bill
defined the term "inspection" as "the period beginning when an
authorized representative of the Secretary first enters a coal mine and
ending when he leaves the coal mine during or after the coal-producing
shift in which he entered.u Senate Subcommittee on Labor, Committee on
Labor and Public Welfare, 94th Cong., 1st Sess. Part I Legislative
History of the Federal Coal Mine Health and Safety Act of 1969, at 917918 (1975)(1'Coal Act Legis. Hist."). Judge Steffey in Westmoreland,
supra, quoted by Judge Merlin with approval (8 FMSHRC at 63), viewed
this definition as support for a conclusion that Congress intended to
distinguish between an "inspection" and an "investigation" because it
regarded an inspection as an examination limited to a single day.
However, the House Bill definition of inspection was dropped at
conference in favor of the Senate version of section 104(c)(l), which
provided for findings of unwarrantable failure at any time during the
same inspection or during any subsequent inspection within 90 days of
the issuance of the initial 104 ( c )( 1) notice of violation "without
regard to when the particular inspection begins or ends." Coal Act
Legis. Hist. at 1507. The Senate version was enacted as section
l04(c)(l) of the Coal Act, and reflects a clear congressional understanding that an inspection may take longer than one day (particularly
at large mines), that an inspector's inquiry into unwarrantable failure
may take more time than any one-day period that he is in a mine, and
that a finding of unwarrantable failure may require examination into
events and actions "without regard to when the particular inspection
begins or ends." Coal Act Legis. !!i§!_. at 1507.
Nacco makes much of the fact that although Congress did not
substantively change the language of section 104(c) of the Coal Act when
it was carried over as section 104(d) of the Mine Act, Congress did
change section 104(a) of the Mine Act by authorizing the Secretary to
issue citations upon an inspector 1 s 11 belief" that an operator violated
the Act and upon either an "inspection or an investigation. 11 For Nacco,
the inspector 1 s belief can be premised upon a retrospective inquiry into
past events and circumstances, or upon an analysis of present events and
circumstances. Nacco finds the change in section 104(a) compelling
evidence that Congress distinguished between enforcement actions that
can be based upon past or present conditions and those that must be
based solely upon present conditions.
We are not persuaded. The fact remains that there is no
indication in the Mine Act legislative history that Congress intended
the change in section 104(a) to affect the application of section
104(d) 1 s unwarrantable failure sanctions in any way. In fact, it has
been asserted, by way of explanation, that the change in section 104(a)
merely reflects the drafters' technical reliance on the language of the
Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq.
(1970), in amending the Coal Act rather than an intent to change the
circumstances under which a section 104(d) citation can be issued. 1 T.
Biddle, Coal Law & Regulations § 9.03[2](b] (1968). We are reluctant to
draw substantive inferences from the change where evidence of express
legislative intent is lacking.

1549

Nor are we persuaded by Nacco's argument that use of the term
"finds" in section 104(d) perforce demonstrates that the inspector must
personally observe an ongoing violative condition or practice. In
ordinary usage, the term 1 s use is not confined to the mere accidental
discovery of things but extends as well to detection by effort,
analysis, and study. Webster's at 851-852 (1971). In the context of
section 104(d), we hold that 11 find 11 is used in an adjudicative sense,
meaning that the inspector must conclude that an unwarrantable violation
has occurred based upon whatever process of discovery or examination may
be appropriate.
In sum, the result reached by the judge frustrates the deterrent
power of section 104(d). After searching the language and purpose of
the Act, as well as the legislative histories, we find no evidence that
Congress intended to place such a severe limitation on so important an
enforcement mechanism. 9/ Consequently, and for the foregoing reasons,
we conclude that a section 104(d) sanction may be based upon a prior
violation and that the judge erred in holding that the citation was
improperly issued under section 104(d) of the Mine Act. We reverse the
judge in this regard.
At the hearing Nacco challenged the validity of the section
104(d)(l) citation on the grounds that the sub-district manager ordered
the modification as a matter of policy, and that all such roof control
violations were automatically deemed to be unwarrantable without regard
to the particular facts involved. The judge made mention of the subdistrict manager's decision to modify the citation and appears to have
inferred that the modification improperly rested upon general policies
without consideration of the particular circumstances of the violation.
8 FMSHRC 72-73. However, the judge made no conclusions on this issue
given his disposition of the case. Since questions may remain regarding
the sub-district manager's decision to have the citation modified from a
section 104(a) citation to section 104(d)(l) citation, the judge should,
as part of his disposition, clarify his finding as to whether the
modification was proper within the statutory framework. If he
determines that the sub-district manager's modification was proper, he
shall then determine whether the violation resulted from an
unwarrantable failure to comply with the standard.

QI

Moreover, this case involves a factual situation that begins with
an exercise of miners 1 rights under section 103(g)(l). As noted, that
section provides that the miners 1 representative may obtain an
"immediate inspection 11 of the mine by MSHA whenever the representative
"has reasonable grounds to believe that a violation of this Act or a
mandatory health or safety standard exists, or an imminent danger
exists .... " 30 U.S.C. § 813(g)(l). Congress intended that through the
exercise of this "important right" miners are to "play an integral part
in the enforcement of the mine safety and health standards." Mine Act
Legis. Hist. at 617-618. Yet, as the facts of this case illustrate,
were we to hold that an operator must be caught in the act of violation
before the appropriate section 104(d) enforcement actions could be
taken, the miners' self-help remedy embodied in section 103(g)(l) could
be eroded seriously.

is so

Accordingly, and for the foregoing reasons, we reverse the judge's
conclusion that a section 104(d) citation may not be issued under the
kind of circumstances presented by this case. We vacate the judge's
subsequent modification of the section 104(d) citation to a section
104(a) citation, and remand for further proceedings consistent with this
decision.

:c~~1Uv

Richard V. Backley, Commissioner

L. Clair Nelson, Commissioner

1551

Commissioner Lastowka, concurring:
I am in total agreement with the majority's conclusion that the
administrative law judge erred in determining that a citation could not
be issued properly pursuant to section 104(d)(l) of the Mine Act in the
circumstances of this case. I believe, however, that certain aspects
of the rationale compelling this conclusion deserve emphasis and that
some of the arguments of the operator and the dissent need to be
addressed more directly.
The question of law before us can be stated in general terms as
follows: Can a finding by MSHA, that a violation of the Mine Act was
caused by an "unwarrantable failure" on the part of a mine operator, be
included in a citation issued for a violative condition that occurred
but is no longer in existence so as to be observable at the time of an
MSHA inspection? The more specific question posed is whether the administrative law judge erred in concluding that in the circumstances of the
present case it was procedurally improper for MSHA to find that the
violation resulted from Nacco's unwarrantable failure. As explained
below, both of these questions must be answered in the affirmative.
The relevant facts are undisputed. A miners 1 representative
reported to MSHA a violation alleged to have occurred at Nacco's mine.
The reported violation involved an operator of a continuous mining
machine extracting coal to an excessive depth such that he impermissibly
placed himself under an unsupported portion of the mine's roof. The
report to MSHA further stated that this type of violation was recurring
at the mine despite past discussions with mine management by both MSHA
and the United Mine Workers of America. The miners' representative
requested "an immediate investigation" by MSHA of the incident and
suggested that criminal prosecution under the Mine Act might be
warranted. (Exh. GX-4).
Pursuant to this request, two MSHA inspectors went to Nacco 1 s mine.
They reviewed the mine 1 s daily report books and saw no reference to the
incident. They proceeded underground. They observed the location of
the reported incident and took measurements of the width and depth of
the mined area and the spacing of the roof support bolts that had been
installed. The following day the inspectors questioned miners, management personnel and representatives of the miners concerning the incident.
The inspectors determined that, as had been reported to MSHA, the operator
of the continuous mining machine had proceeded under unsupported roof in
violation of 30 C.F.R. § 75.200. They issued a citation alleging a violation and indicated on the citation that it was issued pursuant to
section 104(a) of the Mine Act, They also indicated on the citation that
they found the violation to be a "significant and substantial" violation.
Fifteen days after the citation was issued, it was modified at the
direction of the inspectors' supervisor to include a further finding
that the violation resulted from Nacco's "unwarrantable failure to
comply" with the applicable mandatory standard. 30 U.S.C. § 814(d)(l).

1552

Nacco does not contest that the incident occurred, that the mandatory standard was violated or that the violation was significant and
substantial. Rather, the sole focus of this litigation is the propriety
of the additional, subsequent finding that the violation resulted from
Nacco's "unwarrantable failure."
Nacco's concern over the making of the unwarrantable failure
finding has its roots in the more severe enforcement consequences
triggered by the presence of such a finding in a citation. For present
purposes, those consequences can be succinctly highlighted by quoting a
summary of the statutory provision by the U.S. Court of Appeals for the
District of Columbia Circuit:

An "unwarrantable failure" citation commences a
probationary period: If a second violation
resulting from an "unwarrantable failure" is found
within 90 days, the Secretary must issue a "withdrawal
order" requiring the mine operator to remove all persons
from the area ••• until the violation has been abated.
Such withdrawal orders are among the Secretary's most
powerful instruments for enforcing mine safety.
Once a withdrawal order has been issued, any subsequent
unwarrantable failure results in another such order.
This "chain" of withdrawal order liability remains in
effect until broken by an intervening "clean" inspection.
That is, "an inspection of such mine [which] discloses
no similar violations." 30 U.S.C. § 814(d) (2).
UMWA v. FMSHRC and Kitt Energy Corp., 768 F.2d 1477, 1479 (D.C. Cir.
1984)(emphasis added).
There is no dispute in the present case that the enforcement effect
of an unwarrantable failure finding made pursuant to section 104(d) is
as described above. What is disputed, however, is the extent of the
availability of this statutory mechanism to certain violative
situations, vizo, whether an unwarrantable failure finding can be made
in conjunction:-with a citation issued for a violative condition that
occurred but is no longer in existence so as to be observable by an
MSHA inspector.
The answer to this question must first be sought in the language of
section 104(d)(l). Quotation of the first sentence of the section and
identification of its discrete components serves to focus the inquiry:
[l] If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary [2] finds that
there has been a violation of any mandatory health or
safety standard, and [3] if he also finds that, while
the conditions created by such violation do not cause
imminent danger, such violation is of such nature as
could significantly and substantially contribute to
the cause and effect of a coal or other mine safety

1553

and health hazard, and [4] if he finds such violation
to be caused by an unwarrantable failure of such
operator to comply with such mandatory health or
safety standards, [5] he shall include such finding
in any citation given to the operator under this Act.
30 U.S.C. § 814(d)(l).

(Bracketed numbers added).

The arguments in support of the procedural validity of the Secretary's
action in issuing the citation in this case, reduced to their essence,
are straightforward: Each element of section 104(d)(l) being met, the
citation properly was issued pursuant to section 104(d)(l). In my opinion,
based on the undisputed facts, the procedural history recited above, and
the plain text of section 104(d)(l), there is no apparent procedural error
associated with the Secretary's action in issuing the contested citation
pursuant to section 104(d)(l). There was: (l) an inspection; (2) a finding
of a violation; (3) a significant and substantial finding; (4) an unwarrantable failure finding; and (5) all of the above findings were included in a
citation issued to the operator. The opposite conclusion is advanced
by the operator and the dissent with such vigor, however, that a closer
examination of their contentions should be undertaken to determine whether
there is a less apparent, but nevertheless fatal flaw in the Secretary's
actions.
Clause [l] of the first sentence of section 104(d)(l) provides that
the actions identified in clauses [2] through [5] be taken "upon any
inspection of a coal •.• mine". (Emphasis added). Much is made by the
operator and the dissent of the fact that the word "inspection" and the
word "investigation" are both used in the Mine Act in referring to and
describing the various enforcement activities of the Secretary authorized
by the Act. In some instances both words appear in the same provision
(e.g., § 104(a), § 107(a)), but in other provisions only one of the
words appears (e.g., § 103(b)(investigation), § 104(d)(inspection),
§ 104(e)(inspection) and§ 105(c)(2)(investigation)).
The basic point of the arguments highlighting the Mine Act's varying
usage of the words !!inspection" and "investigation" is that the words are
different their meanings are different and a distinctive impact on the
Secretary's enforcement activities and the consequences flowing therefrom
was intended depending on the particular word used in a particular statutory provision, As specifically related to the principal issue presented
in this case, the argument advanced is that because clause [l] of section
l04(d) (1) refers only to "inspections", the special findings provided for
in clause [ 3 J ("significant and substantial") and clause [ 4) ("unwarrantable failure") cannot appropriately be included in citations issued as
a result of 11 investigations" by the Secretary.
Despite the force with which this argument is advanced, extensive
consideration of its merits is unnecessary and inappropriate in the
present case. The fact is that the citation at issue was issued "upon
an inspection" of the mine, It is undisputed that the inspectors were
at Nacco's mine pursuant to a request by a representative of the miners
that MSHA look into the circumstances surrounding a reported violation

1554

of the Act. See, e.g., Oral Arg. Tr. at 47-48. The statutory basis for
the miners request and MSHA's prompt response thereto is section 103(g)(l).
This section provides:
Whenever a representative of miners or a miner .••
has reasonable grounds to believe that a violation
of this Act or a mandatory health or safety standard
exists, or an imminent danger exists, such miner or
representative shall have a right to obtain an
immediate inspection by giving notice to the Secretary or his authorized representative of such violation or danger •.••. Upon receipt of such notification,
a special inspection shall be made as soon as possible
to determine if such violation or danger exists •.•.
30 U.S.C. § 813(g)(l)(emphasis added). 1/ Therefore, because the citation
disputed in this case was issued "upon an inspection" conducted pursuant
to section 103(g)(l), it is unnecessary here to address the contention
that citations cannot be issued pursuant to section 104(d) where through
the course of an MSHA "investigation" it is determined that violations
have occurred even though they are no longer in existence. That question
appropriately is addressed in a case that actually poses the issue.
The next basis for the argument that the provisions of section
104(d)(l) were not intended to be applied to violations that occurred
but are no longer in existence at the time of an MSHA inspection centers
on that section's use of the word "finds" as the predicate for actions
taken thereunder. (Clause [2] If an inspector "finds that there has
been a violation"; clause [3] "if he also finds that" the violation is
significant and substantial; and clause [4] "if he finds such violation
to be caused by an unwarrantable failure")(emphasis added)). Nacco
argues that the plain meaning of "find" is "to happen on; come upon;
meet with; discover by chance". Nacco's brief at 12, citing Webster's
New World Dictionary 523 (2d Coll. ed. 1976). It asserts that a violative condition that no longer exists cannot be happened upon or discovered by chance and therefore cannot be "found" during an inspection
within the meaning of section 104(d) (1), The Secretary and the 1JMWA
argue in opposition that in section 104(d)(l) the word "finds" is used
in its adjudicative sense to describe the reaching of a conclusion by
an inspector.
In my opinion, the operator's argument that the use of the word
"finds'' in section l04(d) (1) requires the inspector to discover a presently existing violative condition is defeated by a plain reading of
the section, Clause [2] states: if an inspector "finds that there has
been a violaton. , .. " The use of the phrase "finds that" clearly refers
to a conclusive finding rather than a finding in the nature of a chance

1/
Although a suggestion that section 103(g)(l) itself was intended by
Congress to be applicable only to presently existing violations has been
proffered, it has been advanced with little vigor in a footnote to the
operator's brief. See Nacco's brief at 15 n. 17. In fact, even this
limited espousal ofa-narrow reading of the text of section 103(g) (1)
was disavowed at oral argument before the Commission. See Oral Arg.
Tr. at 52-53.

1555

discovery. Further, the precise conclusion described ("that there has been
a violation") by its own terms includes, rather than precludes, violations
that occurred but are no longer present when an inspector arrives at a mine.
To equate the phrase 11 that there has been a violation" with the phrase "that
there is a presently existing violation" is to give a tortured rather than a
plain reading to clause [2]. The text of clauses [3] and [4] also is directly
contrary to the argument advanced by Nacco. In describing further actions to
be taken by the inspector, clauses [3J and [4] respectively provide that "if
he also finds that ••• such violation" is significant and substantial and "if
he finds such violation to be caused by an unwarrantable failure •••• " Again,
both of these uses of the word "finds" plainly are in the sense of conclusive
findings; the inspector must make determinations as to whether the level of
danger posed by a violation and the nature of the operator's conduct associated
with the violation meet the thresholds of governing legal tests. These types
of determinations are not "chance discoveries" or conditions "happened upon."
Rather, they are determinative findings or conclusions arrived at through the
faculty of mental reasoning. That this is the plain meaning of the word "finds"
as used in section 104(d)(l) is further underscored by clause [5] 1 s provision
that the inspector "shall include such finding[s] in any citation given to the
operator under this Act." (Emphasis added).];_/
Furthermore, clause [5] 1 s provision that such findings shall be included
"in any citation" issued to the operator (emphasis added), by its plain terms
authorizes, rather than prohibits, the making of unwarrantable failure findings
in any citation, including a citation issued for a violation that occurred out
of the sight of an MSHA inspector.
Therefore, I conclude that a plain reading of section 104(d)(l) requires
a conclusion that the Secretary properly can issue a citation thereunder containing findings that a violation occurred but no longer exists, that the
violation is a significant and substantial violation and that the violation
resulted from an unwarrantable failure by the operator to comply with a mandatory standard. '}../

2/

Nacco's reliance on Holland v, United States, 464 F, Supp. 117 (W.D,
1978), to support its interpretation of section 104(d) is unpersuasive,
The Holland court's discussion of section 104(d) arose in the context of a
tort claim based on negligent inspection, a context clearly distinguishable
from the enforcement case before us. Even assuming its applicability, and
further assuming that Holland supports the proposition that a violation must
be observed by an inspector to be cited under section 104(d), I would respectdisagree,
Ky,

3/
The
cite, and the majority and dissenting opinions discuss in
some detail, the legislative history pertaining to the origins of section
104(d), Even when the meaning of statutory text appears clear on its face,
i t is not inappropriate to examine legislative history for any further
enlightenment as may be available concerning congressional intent. Train v.
Colorado Public Interest Research Group, 420 U.S. 1, 9 (1975). See 2A Sutherland Statutory Construction, § 48.01, p. 278 (4th ed. 1984). Accordingly, I
have reviewed the proffered passages and the arguments based thereon. I find
in the legislative history absolutely no indication that Congress specifically
focused upon or had any reason to be aware of the nuance to the enforcement of
section 104(d) that has been suggested and scrutinized in this case. Although
the advocates on both sides of the issue can extract isolated words and phrases
from the legislative history and interpret them to support their positions, I
(Footnote continued)

1556

Even if the Secretary is not precluded on the face of section
104(d)(l) from issuing citations thereunder for violations no longer
in existence when an MSHA inspector is present at the mine, Nacco and
the dissent argue that such action is nonetheless improper because it
runs directly counter to the fundamental purpose and logic underlying
section 104(d). The operator repeatedly describes section 104(d) as a
"time critical" provision and argues that once a violative condition has
ceased to exist the appropriate time for proceeding under section 104(d)
also has ceased. Nacco submits that the purpose of section 104(d) "is
to encourage compliance, not to punish an operator" and that to allow
citations under section 104(d) of violations that are no longer in
existence at the time of an MSHA inspector's arrival at the mine leads
to the "Kafkaesque" and "bizarre" result that a withdrawal order would
be issued for a hazardous condition that is no longer present, Nacco's
brief at 20-21. The dissent echoes these themes in asserting that "the
Secretary ••• is motivated more by retribution than by the protection of
miners when he issues a section 104(d) citation or withdrawal order for
a hazard that no longer exists" and that in such circumstances "bald
harassment becomes inevitable." Dissent at 32, 36.
Contrary to these characterizations of the cataclysmic effect of our
upholding the Secretary's right to proceed as he did in this case, the
result we reach not only is consistent with the plain langugage of section
104(d) as discussed above, but also is entirely consistent with the
enforcement logic underlying the section as discussed below. Furthermore,
in light of the operator's and the dissent's predictions of the dire consequences that will result from our upholding the Secretary's actions, it
is important to underscore the fact that our decision is simply an affirmation of the Secretary's right to continue to enforce this provision as it
has always been enforced under both the 1977 Mine Act and its predecessor
statute, the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801
et seq, (1976)(amended 1977)
The feature that distinguishes section 104(d) from other enforcement
provisions in the Mine Act is its authorization of the Secretary to find
a violation to have been caused by an unwarrantable failure of the operator to comply with a standard. No other provision in the Mine Act concerns
itself with whether the conduct of an operator in conjunction with a violation was "unwarrantable." The importance of an unwarrantable failure
finding in a citation stems from the probationary effect triggered by its
presence as was described at the outset of this opinion (supra at 2) by
quoting the court of appeals decision in Kitt Energy Corp. As described
therein, once a citation containing an unwarrantable failure finding and
a significant and substantial finding has been issued, any further violation also caused by an unwarrantable failure within 90 days requires
issuance of a withdrawal order, as do still further violations until a
complete, clean inspection of the mine has taken place.
Fn. 3/ continued
find none of the referenced passages so illuminating on the question at issue
as to justify any interpretation in conflict with a plain reading of section
104(d). UMWA v. FMSHRC, 671 F.2d 615, 621 (D.C. Cir. 1982), cert. denied~ 459
U.S. 927 (1982); United States v. U.S. Steel Corp., 482 F.2d 439, 444 (7th Cir.
1973), cert. denied, 414 U.S. 909 (1973). See also 2A Sutherland, supra.

1557

The plain focus of section 104(d)'s unique enforcement scheme is on
the conduct of an operator in relation to an occurrence of a violation.
Where a violation results from an operator's unwarrantable failure, the
statute requires that a higher toll be exacted from the operator than
is exacted in situations where, although a violation occurred, the
operator has not acted unwarrantably. In arguing that the special
provisions of section 104(d) are not logically applied to violations
that occurred but no longer exist, the operator and the dissent ignore
the section's focus on the conduct of the operator, which would be the
same regardless of whether an inspector observed the violation. They
further overlook the fact that the Secretary's inquiry into whether an
operator's conduct in relation to a violation was unwarrantable, will be
precisely the same type of inquiry undertaken in precisely the same manner
regardless of whether the violation actually was observed by an inspector.
Simply put, determination of whether an operator's conduct in relation to
a violation was unwarrantable is not at all contingent on or affected by
whether a violative condition remains in existence at the time of inspection.
Concomitant with their failure to recognize that the operator's
conduct, rather than the timing of the inspector's arrival, is the focal
point of section 104(d), the operator and the dissent erroneously assert
that proceeding under section 104(d) where a violative condition is not
presently in existence serves no safety purpose and constitutes meaningless punishment. If this is true a remarkable transformation has been
worked. The use of one of "the Secretary's most powerful instruments for
enforcing mine safety" (Kitt Energy, supra, 768 F.2d at 1479) has been
reduced to nothing more than purposeless punishment unrelated to the
safety
of the Mine Act.
The essence of the argument that no safety purpose is served by proceeding under section 104(d) for violations not discovered during their
existence can be cast in terms of the following syllogism: (1) Hazardous
conditions threaten miners' safety; (2) no hazardous condition exists if
a violative condition is not presently in existence; (3) therefore miners 1
is not threatened in these circumstances. The fallacy in this
syllogism lies in its second premise. Contrary to the arguments of Nacco
and the dissent 0 a very significant safety concern is presented in situations where an inspector determines that a violation occurred even though
the violative condition no longer exists. Furthermore, such situations,
like those where violative conditions are observed by an inspector,
appropriately can be addressed pursuant to the procedures set forth in
section 104(d) with no damage to that section 1 s underlying enforcement logic.
To be sure, the most clear cut example of a hazard jeopardizing
miner
is an observable physical condition that is in violation
of an applicable mandatory standard. Where such a violative condition
is observed by an inspector and is determined to have resulted from
unwarrantable conduct by the operator, the section 104(d) probationary
scheme indisputedly is appropriately invoked. A significant threat to
miner 1 s safety also. is presented, however, by situations such as that
in the present ~ase where a violative condition has occurred but has
ceased to exist prior to the inspector's arrival at the mine. In fact,
the level of danger posed in such circumstances may far surpass that
posed by violations observed by an inspector.

1558

At the moment that a mandatory standard is violated, the immediate
threat to miner safety is identical regardless of whether an inspector
is present to observe the violative act. In both instances a hazard has
occurred and miner safety has been jeopardized. Beyond this initial
exposure, however, the level of harm that is posed by an unobserved
violation begins to transcend that posed by an observed violation for
two reasons. First, if an inspector observes a violation being committed,
he will immediately order its cessation and the associated threat of harm
to the miner will end. Where an inspector is not present to intervene,
however, the violative act and the associated hazard will likely continue
to exist until the work task being performed in a violative manner is
completed. Second, where a violation has not been observed by an inspector the violative conduct is more likely to be repeated in the future due
to the lack of any immediate intervening sanction directed at the violative
act dissuading its repetition. This latter consideration is forcefully
illustrated in the present case by the recurring instances of miners
working under unsupported roof at Nacco's mine that prompted the miners'
representative's complaint to MSHA and request for intervention. Therefore,
despite Nacco's and the dissent's suggestions to the contrary, the hazard
or threat to miner safety posed by violations that are not observed by
MSHA inspectors often will exceed, in duration as well as instances of
exposure, the hazard posed by violations that happen to be caught by
inspectors during the period of their existence.
Since violations that occurred but were not observed by MSHA
inspectors during the period of their existence pose at least as great,
if not greater, danger to miner safety as violations that are observed,
the necessity and logic of applying the enforcement procedures in section
104(d) to unobserved as well as observed violations is evident. In both
instances MSHA inspectors will have determined that violations of mandatory standards occurred. In both instances citations specifying the
nature of the violations and addressing abatement measures will be
issued. 4/ In both instances the inspectors will determine whether
the violation resulted from the operator's unwarrantable conduct and,
if so, the operator will be put on notice that further unwarrantable
violations will result in the cessation of mining operations through
the issuance of withdrawal orders. In short, in both instances the
important sanctions Congress provided in section 104(d) can be
logically invoked and effectively directed at the precise type of
aggravated operator conduct to which section 104(d) was intended to
be applied.
For the foregoing reasons, as to the question of law before us~ I
agree with the majorityvs conclusion that the Secretary is not barred
from issuing a citation pursuant to section 104(d)(l) of the Mine Act
for a violation that occurred but is no longer in existence so as to be
observable during an MSHA inspection.
4/
Abatement of an observed instance of a miner working under unsupported roof normally would involve removal of the miner from the unsafe
area and instruction of the miner, and others if appropriate, concerning
the need for future compliance with roof control standards. Abatement
of a similar, but unobserved, violation necessarily would emphasize the
latter.

1559

Of course, the Secretary's action in proceeding under section 104(d) is
subject to challenge and review, like any other secretarial enforcement action,
to determine whether, in a given set of circumstances, the Secretary has acted
arbitrarily, capriciously or otherwise not in accordance with law. Considered
in the abstract, it may be possible that the Secretary's invoking of section
104(d) sanctions for a violation that occurred far in the past could, depending
on the particular factual context, constitute impermissible enforcement action.
See generally dissent at 22, 33-36. This vague specter of possible abuse,
however, is a plainly insufficient basis for foreclosing in all circumstances
the Secretary's ability to cite past violations under section 104(d). More
relevant is how the Secretary actually proceeds in non-theoretical enforcement
situations.
In the case before us, the Secretary conducted an inspection in response
to a miners' representative's report of a violation. The violation occurred
on a Thursday, the request for an inspection was made on a Friday, the Secretary's inspection took place on the following Monday and Tuesday, and a
section 104(a) citation was issued on Wednesday. The finding that the violation resulted from the operator's unwarrantable failure, resulting in the
modification of the citation to a section 104(d)(l) citation, was made only
19 days later. As of this date the operator was put on notice that it was
subject to a section 104(d) probationary chain and that to avoid the issuance
of withdrawal orders avoidance of further unwarrantable violations during the
next 90 days was necessary. Thus, section 104(d) was invoked and implemented
in a manner consistent with its intent.
Based on these circumstances, and the record in this case, I perceive no
basis for any conclusion that an injustice to the operator or a perversion of
section 104(d)'s enforcement scheme has been caused by the Secretary's actions.
Accordingly, I join the majority in reversing the judge's decision and
remanding for further proceedings. Z.I

~j~
James~Lastowka

Commissioner

51 I agree with the majority that further findings concerning whether the
violation at issue resulted from the operator's unwarrantable failure are
necessary, Although the judge indicated that he desired to avoid just such
a remand in the event he was reversed on the controlling question of law
(8 FMSHRC at 73), the intended meaning of his findings as to the validity
of the modification of the citation and whether the operator's conduct, in
fact, was unwarrantable, is not totally clear. See 8 FMSHRC at 72-73. See
also, Oral Arg. Tr. at 38-39. Clarification of these points through further
findings is necessary. Regarding the procedural propriety of the modification
of the citation, two points should be noted. First, an inspector's supervisor
certainly has the power to review the inspector's enforcement actions and,
based on that review, direct appropriate modifications of the inspector's
action. Second, the record in this case contains evidence, not referenced by
the judge, concerning the sub-district manager's consideration of the particular circumstances of the violation at issue influencing his direction that the
citation be modified to include an unwarrantable failure finding. Tr. 350-368,
376-77.

1560

Chairman Ford, dissenting: "!._/
The decision of Chief Administrative Law Judge Merlin, that the
majority would reverse, holds that an MSIL~ inspector is not authorized
to issue an unwarrantable failure citation or order of withdrawal for
a pre-existing violation that no longer exists at the time of his on
site inspection. According to the judge's reasoning, the sole post hoc
sanction available to the inspector in such circumstances is a citation
authorized under section 104(a) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801, 814(a). l/ All Commission judges who considered this issue prior to this appeal had agreed with Judge Merlin. 2/

On appeal, the Secretary and the United Mine Workers of America
(UMWA) argue -- and the majority agrees -- that the scope of section 104(d),
30 U.S.C. § 814(d), is so broad as to authorize unwarrantable failure sanctions (including mine closure orders) for violations that, while they may
have existed in the past, no longer exist and therefore are not personally
observed by the inspector. The section 104(d) sanctions imposed in such
circumstances have no prophylactic purpose. Thus, the majority is constrained to justify the imposition of section 104(d) for a past completed
violation because of its "deterrent effect" (Majority Slip Opinion at p. 7).
That expansive view conflicts with the plain meaning of the 1977 Act, the
intentions of its authors, and its underlying policies. Accordingly, I
must respectfully but vigorously dissent.

*/ This opinion constitutes my general position on the applicability
of unwarrantable failure sanctions to past completed violations not
observed by MSHA inspectors. My legal conclusions herein therefore
apply to three related cases also decided today: Greenwich Collieries,
Docket Nos. PENN 86-33 and PENN 85-188-R et al., 9 FMSHRC
(Sept. 30
1987); White County Coal Corp., Docket Nos. LAKE 86-58-R and LAKE 86-59-R,
9 FMSHRC
(Sept. 30, 1987); and Emerald Mines, Docket No. PENN 85-298-R,
9 FMSHRC
(Sept. 30, 1987).
l/
For purposes of this opinion, sanctions based on unwarrantable failure
allegations will be referred to as section 104(d) citations and orders while
sanctions not alleging unwarrantable failure will be referred to as section
104(a) citations. I agree with my colleagues 1 view that despite the Secretary's theoretical arguments on this issue, such a distinction serves to
clarify the discussion.
2/
Greenwich Collieries, 8 FMSHRC 1105 (1986)(ALJ Haurer); White County
Coal Corp., 8 FMSHRC 921 (1986)(ALJ Melick); Emerald Hines Corp., 8 FMSHRC
324 (1986)(ALJ Melick); Southwestern Portland Cement Co., 7 FMSHRC 2283
(ALJ Morris); Emery Mining Corp., 7 FMSHRC 1908 (l985)(ALJ Lasher); and
Westmoreland Coal Corp., (WEVA 82-340-R et al.)(May 4, 1983)(ALJ Steffey).
As the majority notes, one judge has recently reached a contrary result.
Florence Mining, 9 FMSHRC 1180 (1987)(ALJ Fauver). The Secretary correctly
indicates that this is a matter of first impression for the Commission.
Secretary 1 s brief at p. 9. The Secretary cites only Rushton Mining Co.,
6 IBMA 329 (1976) both as precedent under the 1969 Coal Mine Health and
Safety Act, 30 U.S.C. 801 et seq. (1970) and as an indication of traditional post hoc enforcementpolicy under section 104(d). Secretary's
brief at pp. 14-15. Rushton, however, is clearly distinguishable from
these cases on appeal insofar as it involved a violation that continued
up to the time the inspector observed it. 6 IBMA 334-336.
1561

The category of past completed violations that the majority would
subject to section l04(d) sanctions presumably includes a violation
that may have occurred weeks or months before an inspector is made
aware of it, let alone conducted his after the fact investigation as
to whether and under what circumstances it may have existed. Additionally, the violation may no longer exist for any number of reasons: the
area where it occcurred may long since have been abandoned; intervening
incidents or conditions may have corrected or obliterated it; or a conscientious operator may have taken steps unilaterally to abate it. Under
any of these scenarios, no unwarrantable, significant and substantial
violation exists that poses an ongoing hazard to miners or that demonstrates continuing operator indifference to miner health and safety.
As will be demonstrated below, post hoc imposition of section 104(d)
sanctions in such circumstances"""WaS simply not contemplated by Congress.
I.

The Plain Meaning of Section 104
A.

Present vs. Past Conditions

As stated in Higgins v. Marshall, one "must look first to the language
of the I~tineJ Act itself and give [its] words ..• their ordinary meaning."
584 F.2d 1035, 1037 (D.C. Cir. 1978), cert denied 441 U.S. 931 (1979).
A parsing of the text of section 104(d) reveals the conscious intent
of Congress to distinguish between citations based on present conditions
and those based on past conditions that are no longer extant when the
inspector is physically present in the mine. This legislative purpose
is directly reflected by the use of the present tense throughout section
104(d). '}_/
Since the grammatical context of section 104(d) is the present tense,
it follows that its enforcement sanctions are directed toward extant
violations, The statutory language itself does not encompass the expansion of the section 104(d) sanction to include violations that no longer
exist (or that have been abated) and, therefore, do not reflect current
operator indifference to mine safety or a continuing risk to miners. !!_/
3/
Under section 104(d)(l) a citation can only be issued where "the
conditions created by such violation do not cause [not "did not" cause]
imminent danger 11 ; where "such violation is [not "was"] of such a nature
as could [not "could have"] significantlyand substantially contribute
[not "contributed"] to the cause and effect of a ,,, hazard"; and only
"if [the inspector] finds such violation to be caused [not "to have been
caused] by an unwarrantable failure of such operator to comply [not "to
have complied 11 ] , Similarly, a section l04(d)(l) withdrawal order can
only be issued if the Secretary "finds another violation ..• to be also
caused [not "was caused"] by an unwarrantable failure." [Emphasis added].

4/

Contrary to the argument of the majority the phrase "has been a

~iolation" in section 104(d) does not lead to a contrary conclusion.

"Has been" is the present perfect tense of "to be" denoting an action
begun in the past and continuing into the present. Thus, "has been" is
the necessary predicate establishing that a violation has to have occurred
and then continued up to the point where an inspector can "find" it and
impose appropriate sanctions.

1562

Textual analysis is buttressed by legislative history that ties section
104(d) sanctions to extant violations. Section 104(d) was adopted virtually
without change in the 1977 Act from section 104(c) of the 1969 Coal Mine
Health and Safety Act. 80 U.S.C. § 801, 814(c)(l970). 'l_/ Therefore, what
Congress said in 1969 about the timeliness of unwarrantable failure citations
and orders is dispositive of the issue under the 1977 Amendments.
The 1969 House Report described the unwarrantable failure enforcement
sanction as applicable when an inspector finds that a mandatory health or
safety standard "is being violated." 6/ The Senate's unwarrantable
failure sanction was likewise applicable where the inspector "finds [that
a standard] is being violated." 7/ The Conference Report restated the
Senate characterization: "if an inspection of a coal mine shows that a
mandatory [standard] is being violated." 8/ Thus, when the 1969 Act
passed Congress, the legislators agreed that unwarrantable failure
sanctions applied to existing violations, that is, practices or conditions that continue to violate mandatory health and safety standards
up to the time the inspector witnesses them.
As noted above, the 95th Congress re-enacted the existing language
of the 1969 Act (section 104(c)) as section 104(d) of the 1977 Act. In
so doing Congress found the language to be "effective and viable" in its
existing form. 9/ Lastly, the Senate Labor Committee clearly spoke to the
timeliness factor for unwarrantable failure closure orders by relating them
to failure to abate orders authorized under section 104(b) of the 1977 Act:
Like the failure to abate closure order ... the
unwarranted (sic) failure order recognizes that
the law should not tolerate miners continuing to
work in the face of hazards .... 10/
The legislative history thus explains and justifies the adoption
of the present tense in the statutory language of section 104(d):
Congress deliberately restricted unwarrantable failure sanctions to
extant conditions or practices discovered by the inspector because they
5/
Sen. Rep. No, 95-461, 95th Cong., 1st Sess. 48,(1977). Reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong.
2d Sess., Legislative History of the Federal Mine Safety and Health Act
of 1977 at 1326, (Leg, Hist., 1977 Act),

!:._/

Legislative History of the Federal Coal Mine Health and Safety Act of
1969, 94th Cong, lst Sess, (Comm, Print 1975) (Leg. Hist., 1969 Act) at
p-:-1061.

7/

Id, at 872-73.

8/

Id. at 1511-1512,

9/

Leg, Hist., 1977 Act, 620.

10/

Leg. Hist., 1977 Act, 619.

1563

have been allowed to continue through operator indifference, willful
intent or a serious lack of reasonable care. Review Commission decisions
addressing the proper definition of "unwarrantable failure" are entirely
consistent with this Congressional view. Westmoreland Coal Co., 7 FMSHRC
1338 (1985); United States Steel Corp., 6 FMSHRC 1423 (1984). "[AJn
unwarrantable failure to comply may be proved by a showing that the
violative condition or practice was not corrected or remedied, prior
to issuance of a citation or order, because of indifference, willful
intent, or aserious lack
reasonable care. II 6 FMSHRC 1437. [Emphasis
added].

B.

Investigation vs. Inspection

A principal basis upon which the judges' decisions below have rested
is the distinction between "investigation" and "inspection" as those
tenns are used in the 1977 Act. Section 104(a) citations can be
issued on the basis of an inspection or investigation while section
104(d) sanctions are limited to violations cited in the course of an
inspection only.
The words "inspection" and "investigation" are not separately defined
in the Act. Therefore, these words must be interpreted and understood as
having their contemporary, ordinary meanings. Furthermore, it is a commonly
accepted generalization that when people say one thing they do not mean
something else. Thus, when Congress said "inspection", it did not mean
11
investigation" and vice versa. In this regard and contrary to the UMWA's
contention (UMWA brief at p. 10), the legislative history of the 1977 Act
clearly demonstrates that Congress made "fine distinctions" between
"inspection" and "investigation" for purposes of the Act.
Senate Report No. 95-181 discusses the Secretary's subpoena powers
under what ultimately became section 103(b), 30 U.S.C. § 813(b), and states,
"This authority is limited to investigations and not inspections." 11/
Later, in the Senate floor debates Sen. McClure sought to amend section
l03(b) so that it would more clearly apply to investigations only, and not
ions. The ensuing colloquy between Sen. McClure and the principal
authors of S. 717, Sens. Williams and Javitz, clearly indicates that by
adopting the McClure amendment, all three obviously distinguished between
"inspections" and "investigations" within the context of the 1977 Act, 12
The foregoing legislative history is fully explained by the ordinary
meanings of the two terms. Against the background of federal oversight
and regulation of mine safety and health, "inspection" is defined as
11
strict or close examination or survey to determine compliance," while
"investigation" is defined as a "searching inquiry as to causes." 13/
Ordinarily, the use of different terms, as here, creates an inference
that Congress intended a difference in meaning. This inference is

11/

Le. Hist., 1977 Act, 615.

12/

~· at p. 1091-92.

13/

Webster's Third New International Dictionary (G&C Merriam Co., 1971).

1564

confirmed by the statutory language itself. Thus, when Congress used
the words together in sections 103(a), 104(a), (b), and (g)(l), lOS(a),
and 107(a), 30 U.S.C. §§ 813(a), 814(a), (b) and (g)(l), 815(a) and
817(a), it separated them with the disjunctive "or" rather than the
conjuntive "and". The use of "or" clearly indicates that Congress
did not intend these words to be considered interchangeable. Likewise,
when Congress limited the prohibition against advance notice to
"inspections" in section 103(a), it did so in recognition of the
different meaning of "inspections" and "investigations". 14/ Since an
investigation, as defined, is an inquiry into causes, it fOllows upon
an antecedent event which is known before the "investigation" can begin.
Therefore, it would be futile to bar advance notice of the Congressionally
mandated follow-up to a mine accident. An "inspection", in contrast, is
the beginning of enforcement to determine if violati<.1 e mine conditions exist,
and Congress wanted to bar advance notice to avoid operator efforts to
disguise safety hazards.
Section 104(a) and (b) broadly confer citation and withdrawal
order authority for violations believed to have been committed upon
"investigation" or "inspection". The withdrawal sanction is limited to
the operator's failure to abate after having been cited. Section
104(d)(l), however, is confined to violations found nupon any inspection".
This provision read together with section 104(d) (2) provides for immediate withdrawal authority without regard to abatement efforts for violations deemed to result from the operator's unwarrantable failure to comply.
This is a significant extension of regulatory authority and by using the
term 11 inspection" alone, Congress reserved and confined this authority
to current existing violations which, because of their gravity or the
operator's underlying failure to correct them require prophylactic mine
closure. Congress did not intend this authority to be used as a post
hoc sanction for violations no longer extant or previously abated but
later "found" during after-the-fact "investigations" as to their causes. 15/
Moreover, Congress used the terms together six times in the Act. 30 U.S.C::§§ 813(a), 814(a), (b) and (g)(l), 815(a) and 817(a).
Congress' failure
to do so in section 104(d) (1), therefore must be attributed to conscious
14/ See also section llO(e) 30 U.S.C. § 820(e), authorizing criminal
penalties for advance notice of "inspections" only.
1
The majority attaches some significance to the fact that Congress
dropped a House-proposed definition of "inspection" from the 1969 Actg
and then goes on to assume that the deletion somehow authorizes the
issuance of unwarrantable failure sanctions at any time for past
violations. (Majority slip opinion at pp. 8-9), I believe the reason
for the deletion is much simpler than that. The definition was
irrational, As judge Steffey wryly observed, the definition, if read
literally, would have required an inspector to set up an underground
larder to sustain him until his quarterly inspection of the entire
mine was completed. Hestrnoreland Coal Co., Docket Nos. WEVA 82-304-R
(May 4, 1983), quoted below at 8 FMSHRC 63.

1565

choice rather L1an inadvertance. 16/ The Act, its legislative history,
and an inquiry into the plain meaning of the terms at issue indicate
clear Congressional intent that investigations and inspections were to
be considered as distinctly different enforcement activities with
equally distinct consequences.
Finally, the majority emphasizes that section 103(g) grants a complaining miner the right to an "inspection" and that the enforcement
actions here were taken as a consequence of a section 103(g) complaint.
While that is true as far as it goes, the activities engaged in by
MSHA were investigative rather than inspectorial in nature. Furthermore,
the specific enforcement action complained of -- citing the operator
under section 104(d) -- was undertaken by the sub-district manager when
he modified the initial citation 19 days after it was issued by the
inspectors who responded to the miner's complaint.
One is left to conclude, therefore, that "inspection" now encompasses
all enforcement activity the Secretary chooses to engage in: an inquiry
into past events, an examination of existing conditions, and all subsequent
internal review conducted by MSHA once the inspector leaves the mine
premises. 17/ Under that rubric, I disagree with my colleagues that they
are "not required ••• to decide the meaning of inspection
for all
purposes under the Mine Act" (Majority Slip Opinion at P. 7). They have.
16/ The Court of Appeals for the District of Columbia recently applied
this principle of statutory construction in another case involving the
Mine Act. Citing Rusello v. United States, 464 U.S. 16, (1983) the D.C.
Circuit endorsed the proposition that where Congress includes language
in one section of a statute but omits it in another section of the same
Act it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion. United Mine Workers of
America v. Mine Safety and Health Administration, Docket Nos. 86-1239 and
86-1327 (D,C, Cir, July 10, 1987)(slip opinion at p. 19).
17/ The 19-day hiatus between the initial issuance of the section 104(a)
citation and its ultimate modification to a 104(d) citation would appear
to confound the Secretary's own review procedures in 30 C.F.R. Part 100.
Section 100.6 provides for pre-Commission review of citations and orders
"issued during an inspection" and requires all parties desiring a safety
and health conference to request one within 10 days after receipt of the
citation or order, The regulations are silent with respect to modifications to citations and orders. It is therefore conceivable that an
operator could waive his right to a conference on a 104(a) citation only
to be notified after the 10-day period has elapsed that the citation has
been modified to a section 104(d) citation or order. In such a circumstance the operator is lulled into forfeiting the opportunity to
present exculpatory evidence that might militate against the modification
of a section 104(a) citation to a section 104(d) citation or order.
The inevitable result of today's decision will be that operators may
defensively request conferences on all citations so as to avoid the
unforseeable consequences of extended "inspections" by the Secretary.

1566

C.

Believes vs. Finds

Intertwined with the distinction between investigations and inspections under the Act is that between "believes" and "finds" within the
constituent elements of section 104. Section 104(a) allows for the
issuance of a citation whenever an inspector "believes" an operator has
violated the Act or mandatory standards, whereas section 104(d) requires
that the inspector "find" a violation.
Both the Secretary and the UMWA argue that "finds" as used in section
104(d) carries an adjudicative sense 18/ while NACCO argues that the term
requires that the inspector "discover11the violation first-hand before a
section l04(d) citation or order may be issued. ];1_/
A search of the language and purpose of the Act, as well as the
legislative history however, does indicate explicit intent on the part of
Congress to limit the application of section 104(d) to instances where the
violation in question is actually observed by the inspector. Indeed, contrary to the Secretary's and the UMWA's arguments, the legislative history
of the 1977 Act specifically equates "finds" with "observes" or "discovers"
for purposes of section 104(d).
Senate Report No. 95-181 addresses the rationale for injunctions under
section 108 of the 1977 Act, 30 U.S.C. § 818. The remedial injunction was
a new enforcement tool granted the Secretary by Congress in the 1977 Act to
be used against "habitual or chronic" violators that don't respond to the
citation, mandatory abatement and withdrawal order sanctions of section
104. 20/ The Senate Report is quoted at length because it has direct and
dispositive bearing on the issues in this case:
18/ "It is patently clear from the language of section 104(d) itself
that the word finds is used in that section in the adjudicative sense,
meaning that the inspector must conclude that an unwarrantable violation
has occurred, not that he must literally discover an active, in-progress
violation. 11 Secretary's brief at p. 20 (emphasis added).
nFurthermore, under Judge Merlin's analysis, use of the word finds
can only mean that an inspector must discover or ncome upon" a violation ••••
Only by interpreting find to mean conclude or determine can the provision
of l04(d) make any sense, as an effective enforcement tool." UMWA 1 s brief
at pp. 4-5 (emphasis added).
19/ Brief of NACCO at p. 16. The majority endorses the position of the
Secretary and the UMWA on this issue. (Majority slip opinion at p. 9).
The "finding 11 of unwarrantable failure was made three weeks after the
issuance of the original l04(a) citation by a sub-district manager who
did not visit the mine, interview witnesses, examine the operator's
records or consult with the issuing inspector. 8 FMSHRC 72. The two
inspectors who did perform those activities, however, declined to "find"
unwarrantability even in the sense that that term is propounded by the
majority.
20/

Leg. Hist., 1977 Act, 1334.

1567

The current scheme for enforcing the mine safety laws
enables MESA to eliminate the dangerous conditions which
are observed in the course of inspections either by
requiring the abatement of the violation or, where
warranted, by withdrawing miners from the dangerous
situations. Having taken these steps, however, there
are no current enforcement sanctions to insure continued compliance with the Act's requirements by the
operator after abatement of the actual violations
observed •••• The new provision of section 109 of
the bill is designed to deal with that gap in
enforcement.
It is in essence, a means by which the Secretary
con (sic) obtain the correction of violations
which habitually occur when the inspector is
not present in the mine. The provision enables
the court to infer from the repeated discovery
of violations at a mine that the operator probably regularly permits such violations to occur
at times when the inspector is not present at
the mine • .lJ:.../ [Emphasis added.]
It should be noted that the "current scheme" and 11 current enforcement
sanctions" of the 1969 Act to which the Senate Report refers are identical
to the current scheme and sanctions of the 1977 Act insofar as section
104(d) is concerned. As noted above, section 104(d) was drawn almost
verbatim from section 104(c) of the 1969 Act. (As will he discussed
below, the same holds generally true for section 103(g), 30 U.S.C.
813(g), (miners' complaints) and its predecessor in the 1969 Act).
Had Congress sought to grant the Secretary the authority to impose
104(d) sanctions for violations that no longer exist when the inspector
is present to observe them, it would have amended section 104(d) for
that purpose. Instead, Congress devised injunctive relief to fill an
acknowledged "gap in enforcement" with respect to violations not actually
observed by the inspector because he is not prese~t at the mine. Section
108 constitutes extraordinary relief that is to be invoked only when other
statutory measures have failed. Nevertheless, its genesis, quoted above,
was the recognition by Congress that section 104(d) had limited application
to violations still in progress during the Secretary's physical inspection
of the mine.
A conscious decision on the part of Congress to withhold the Secretary's authority to invoke section 104(d) sanctions for violations not
observed by his inspectors is binding on this Commission as well.

§

Furthermore, the legislative history for section 104(e), 30 U.S.C.
814(e), indicates clearly thC!t Congress intended "finds" to mean

:!:J:../ Leg. Hist., 1977 Act, 627.

1568

"discover". !J:./ Sen. Schweiker authored what is now section 104(e). In
a Senate floor colloquy with Sen. McClure, Sen. Schweiker explained what
"finds" means in terms of section 104(e):
Tile way the amendment works is if a pattern of
substantial violations is found the mine is put
on notice .••. Tilen after the next violation
occurs they are shut down •.•• He [the operator)
can clean the slate up in 90 days by good behavior,
or he can clean it up on the next inspection and
show that there are no violations that exist. 23/
[Emphasis added].
Sen. Schweiker's explanation is even more clearly stated later in the
Senate Record:
••. Once a withdrawal order has been issued ••• and
a subsequent inspection of the mine discloses
another violation ..• a withdrawal order will be
issued until the violation has been abated •...
Subsequent to this, the operator is subject to
further withdrawal orders ••• each time a violation of a substantial and significant nature is
discovered, until an inspection of the mine in
its entirety discloses no violations ..• which
could significantly and substantially," etc. 24/
[Emphasis added] •
The legislative history fully supports Judge Merlin's view that the
inspector's first-hand observation of violations is a prerequisite to the
imposition of section 104(d) sanctions. In short, an inspector cannot cite
under section 104(d) what he cannot "find", that is, observe or discover in
the course of his inspection. 2
Clear judicial support for equating
22/ While section 104(e) is not before this Commission, our ultimate
decision will carry implications for future "pattern of violations"
enforcement. Sections 104(d) and (e) are completely analogous insofar
as the inspection/investigation and believes/finds dichotomies are
concerned, The majority's determination that section 104(d) sanctions
can be imposed post hoc for violations no longer extant clearly implies
that section 104(e) sanctions can be similarly imposed,
23

. History, 1977 Act at p, 1077.
Id. at p. 1105,

25/ The majority cites two violations that might escape section 104(d)
sanctions -- failure to perform pre-shift examinations (30 C.F.R. 75.303)
and health violations, such as excursions above the respirable coal dust
standard, that are determined by after the fact analysis of samples.
(Footnote continued)

1569

"find" with "observe" is also found in Holland v. U.S., 464 F.Supp 117,
123 (W .D. Ky. 1978). Thus, the inspector is limited to the 104(a)
sanctions with respect to past violations no longer extant at the
time of his inspection and observation of current conditions.
II.

The Interaction Between Section 104(d) Sanctions and Miners'
Complaints

Concerns have been raised in this case that if inspectors cannot
impose section 104(d) sanctions for past, but unobserved violations, the
rights of miners under section 103(g) will be "emasculated". Oral argument at p. 57. Indeed, as the majority notes, this case arose from a
citation issued in response to a section 103(g) complaint. The Conference
Report on the 1977 Act, however, could not be more clear as to the interaction between section 103(g) and the ensuing sanctions allowed under the
Act:
Fn. 25/ continued
Regarding the first example, section 75.303 requires not only that
a pre-shift inspection be conducted but also that it be recorded in an
examination book "open for inspection by interested persons." Failure
to examine and then record would therefore be a violation continuing to
the time the inspector arrives at the mine to inspect the books. He
would be observing the continuing violation and would have available to
him the unwarrantable failure sanction. Of course, failure to preshift
but nevertheless misrepresenting that failure by "recording" it is an
offense subject to the criminal sanctions of Section llO(f), 30 U.S.C.
820(f).
As for the second example, except for respirable coal dust
sampling, the vast majority of sampling conducted for the purpose of
determining compliance with health standards is conducted by MSHA
:Lnspectors themselves, See generally, Mine Inspection and Investigac.ion Manual U.So Department of Labor, Chapters III and IV (1978).
, when an inspector conducts the sampling to determine compliance with various health standards and then analyzes those samples
or forwards them for laboratory analysis, he is at all times engaged
in the "discovery" of a potential violation and, if the ultimate analysis
proves noncompliance, he is authorized to cite under section 104(d)
if the other elements of that section are met. It should also be noted
that
technology increasingly provides instrumentation for
instantaneous analysis and quantification of workplace toxics just as
sound level meters provide instant quantification of workplace noise.
Furthermore, with respect to the health standard specifically raised
by the majority, the respirable coal dust standard, Congress has
specifically fashioned a sanction for continuing noncompliance with
the standard that verges on an unwarrantable failure to comply. Section
104(f) provides withdrawal order authority when an inspector finds that
an operator has failed to reduce dust levels below the standard as
evidenced by sample results, and when he further determines that
additional time for abatement is not warranted. 30 U.S.C. 814(f).

The conference substitute contains a further amendment requiring the Secretary to notify the operator
••. forthwith if the (103(g)] complaint indicates
that an imminent danger exists. Otherwise, miners
might continue to work in an imminently dangerous
situation until the Secretary is able to inspect
•••• Accordingly, an operator who receives such a
notice would do what is necessary to evaluate the
situation and protect the miners who may be exposed
from the dangerous situations. While this provision,
in fact, gives the operators the opportunity to abate
such dangerous conditions-its sole purpose [is?] to
protect the health and safety of miners. l:!!_/
The clear implication of the underlined sentence is that operators
in such circumstances may "get away with" abating violations without being
cited when the inspector arrives but that the substance of protecting miners
takes precedence over the form of enforcement. In fact, what does the above
passage mean other than that the Secretary is precluded from citing past,
abated violations that give rise to section 103(g) complaints? Such a
reading also reinforces the proposition that Congress intended "finds"
to mean "observes in the course of inspection" since section 107, 30 U.S.C.
817, requires the inspector to "find" imminent danger just as he is required
to "find" a violation under section 104(d).
Furthermore, the Conference Report goes on to state:
The failure of the Secretary to notify the
operator ..• under this provision will not
nullify any citation or order which may be
issued as a result of the inspection in
response to the [miner's] request ••• even
if such inspection discloses the existence
of an imminent danger situation in the mine, 27/
The only logical explanation for this "hold harmless" language is
that if the operator has been notified and he abates prior to inspection
he cannot be cited; whereas if he is not notified and therefore does not
abate prior to inspection, he can be cited and cannot affirmatively
defend against the citation or order by arguing that the Secretary
failed to notify him of the violation.
Moreover, section 103(g) had an analogous antecedent in the 1969 Act,
30 U.S,C. § 813(g)(l970). That inspection in response to a miner's complaint was also part of the "current scheme" referred to in the Senate
Report quoted above, As such, section 104(d) sanctions were limited
under the 1969 Act to violations 11 observed in the course of [section
103(g)] inspections." Leg. Hist., 1977 Act, 627. Congress did not
26/

Leg. Hist., 1977 Act, 1324 [emphasis added].

27/

Id. at 1324 [emphasis added].

1571

amend section 103(g) to authorize section 104(d) sanctions for past
completed violations not observed by the inspector upon his arrival at
the mine in response to a miner's complaint. Therefore, the "current
scheme" of the 1977 Act must operate under the same restrictions as
Congress ascribed to the "scheme" of the 1969 Act.
The appropriate interrelation between sections 103(g) and 104(d)
can also be established by reference to section 2 of the Act which sets
forth its Congressionally determined purposes. In section 2(e) Congress
declares that mine operators "with the assistance of miners have the
primary responsibility to prevent the existence of [unsafe and
unhealthful] conditions and practices in .•. mines." Section 2(g) goes
on to state that the purpose of the Act is "to require that each operator
of a coal or other mine and every miner in such mine comply with
(mandatory safety and health] standards." 30 U.S.C. §§ 802(e) and (g).
Thus, the operators' and the miners' responsibilities to prevent
the continued existence of unsafe and unhealthful conditions and practices derive directly from section 2 of the Act itself - not because of,
and perhaps in spite of, the Secretary's various enforcement incentives
and disincentivites used to encourage compliance. Given the Secretary's
finite enforcement resources, section 2 explicitly acknowledges that the
correction of hazardous conditions and practices will for the largest
part depend upon the vigilant self-policing of mine safety and health
by operators and miners. As the UMWA states convincingly in its brief:
The likely interaction of all parties involved in
carrying out the enforcement of mine safety and
health laws should be the highest priority of the
Commission in fashioning its interpretation of
section 104(d) in this case. Only by construing
the statute with an eye toward that priority, will
the proper determination be made. UMWA brief at
p 12,
Q

The "likely interactionH of all parties is obviously aimed at the
prevention of hazards to miners and the prompt abatement of violations
once they arise irrespective of the threat of sanctions. When two of
the parties, the operator and the miner, for whatever reason cannot or
will not "interact" to carry out their responsibilities under section 2(g),
Congress has provided for Secretarial intervention under section 103(g).
However, given the Conference Committee's view, above, as to how this
level of interaction is to be circumscribed, 104(d) sanctions are impermissible responses to 103(g) complaints aimed at past completed violations,
Under the principles enunciated in section 2 of the Act, such a
limitation on the Secretary's enforcement powers is appropriate, There
is no incentive for fostering the "interaction of all parties involved"
when one of the parties, the Secretary, is motivated more by retribution
than by the protection of miners when he issues a section 104(d) citation or withdrawal order for a hazard that no longer exists. Section 2
is even more severely compromised when the operator's unilateral action
to abate violations prior to the inspector's arrival is "rewarded" by
imposition of the more severe enforcement sanctions of section 104(d).

1572

Yet, the majority would extend the Secretary's authority to issue 104(d)
sanctions to violations "corrected" before the inspector's arrival.
(Majority slip opinion at p. 13.)
In short, the majority's decision will encourage its own "cat and
mouse game" 28/ with respect to violations that no longer pose any colorable threat to miner health and safety.
III; Practical Enforcement Problems Arising from Post Hoc Section 104(d)
Sanctions
By reversing Judge Merlin and allowing the Secretary to issue retroactively the enforcement sanctions of section 104(d), the majority raises
a number of enforcement policy issues. Practical issues include the
potential for constant recomputation of the 90 day probationary period
built into section 104(d). The majority dismisses this "time sequence"
problem by arguing that it doesn't arise on review and thus need not be
considered here. (Majority Slip Opinion at p. 7, fn. 6.) They err on
two counts.
First, the "time sequence" issue raised by NACCO is not mere calendar
speculation; it is a substantive argument in favor of limiting section
104(d) citations and orders to existing violations actually observed by
an inspector in the course of his inspection. NACCO correctly argues that
by applying section 104(d) to past, completed violations the 90 day probationary period is "written out of the Act." NACCO brief at p. 22.
This is because the majority's opinion allows the Secretary, through the
post hoc imposition of section 104(d) sanctions, to reach back continuously
into expired 90 day "cleann probationary periods previously considered to
be unwarrantable failure free. This argument is inextricably linked to the
"present tense", "finds" vs "believes", and "inspection" vs "investigation"
arguments, discussed above. They all center on the proposition that the
section 104(d) chain is a prospective sanction that starts with a presently
observed unwarrantable failure violation and becomes progressively more
severe as subsequent unwarrantable failure violations are observed during
the ensuing 90 day period.
Second, the "time sequence" issue is before the Commission on the
basis of the facts of this case, The violation was alleged to have
occurred on May 30, 1985, It was cited by the inspectors under section
104(a) on June 5, 1985. The section 104(a) citation was modified to a
section 104(d)(l) citation by the subdistrict manager on June 24, 1985.
From which of the three dates does the 90 day probationary period run?
If the Secretary can retroactively ufind" an unwarrantable failure
violation 25 days into the past, doesn't it follow that the operator
should be credited with those same 25 days toward the 90 day probationary
period? If not, doesn't the majority's decision actually establish
a 115 day probationary period under section 104(d)? These are legitimate
questions that can not be deferred to another day since NACCO has explicitly
raised them in this appeal. Furthermore, as the majority is obviously
breaking new ground with this decision, clear guidelines as to future
enforcement procedures must be articulated in this case. Obviously, if
28/

UMWA brief at p. 12.

1573

as argued in this dissent, the Secretary has no authority to issue a
section 104(d) citation in the first place, the "time sequence" issue
is moot, 29/
Although an unwarrantable failure closure order is not at issue here,
the majority's decision authorizes the issuance of such orders for nonextant violations alleged by the Secretary to have occurred some time
before the arrival of an inspector. Indeed, the majority's decisions today
in White County Coal Corp., Docket Nos. LAKE 86-58-R and LAKE 86-59-R,
9 FMSHRC
(Sept. 30, 1987) and Greenwich Collieries, Docket Nos.
PENN 86-33 and PENN 85-188 et al., 9 FMSHRC
(Sept. 30, 1987), allow
just such enforcement actions.~As argued above, since the violation no
longer exists, the withdrawal order is not issued for the purpose of protecting miners; no hazard is present at the time of issuance. This, despite
Congressional statements to the effect that such orders are necessary so
as to prevent "miners continuing to work in the face of hazards." 30/
If, as the Secretary suggests, the withdrawal order is issued "to send
a message" 31/ or, in the terminology of the majority, for its "deterrent
effect", then section 104(d) curiously takes on the trappings of a civil
penalty closure order.
Both the Senate and House bills that gave rise to the 1977 Act included
such an order. Leg. History, 1977 Act at pp. 159 and 237. Its purpose was
not the protectionof miners but was purely punitive. The order, however,
could only be imposed by the Commission after a full hearing. After due
deliberation, Congress rejected the civil penalty closure order. What
Congress was unwilling to delegate legislatively to the Secretary cannot
be delegated judicially by this Commission.
If as the UMWA argues 32/, the withdrawal order can be terminated
simultaneously with its issuance, the enforcement mechanism of section
104(d) becomes a dead letter, a "nonclosure" closure order. No one is
29/

Aside from the uncertainty now introduced into the computation of the

90 day probationary period, there is now also a general lack of temporal

restraint on the Secretary in applying section 104(d) sanctions, particularly
section 104(d) orders. In two cases decided today, the violations are
alleged to have occurred as short as one hour (White County Coal Corp.,
infra) and as long as 13 months (Greenwich Collieries, infra) before
issuance of the orders.
30/

• Hist., 1977 Act, 619,

l.!_/ "We close that section of the mine; we cut off production, send a
message to everyone involved - from the miners to the operators - that
we are not going to tolerate this kind of activity •.•• I would probably
close it until the next clean inspection, yes ••. The Commision has often
paid due deference to the Secretary's interpretation of his enforcement
mandates." Statement of Solicitor of Labor Salem, oral argument,
December 16, 1986 at pp. 18-20.
32/ Statement of Mr. Meyers for UMWA, oral argument, December 16, 1986
at pp. 31-32.

1574

actually withdrawn, although the statute requires that they be withdrawn,
and the credibility of the entire enforcement mechanism becomes subservient
to an obviously formalistic exercise.
Finally, if as the Secretary alternatively suggests, 33/ the withdrawal order is issued for the purpose of training miners in such areas
as roof control and ventilation as a means of abatement, two problems
arise. First, the Secretary did not allege a violation of the training
regulations that would warrant such a means of abatement. Second, the
miners that are withdrawn as a result of the order may not be the miners
that were present in the area when the violation is alleged to have
occurred. In either event the remedial basis for the order is inapposite
with respect to the violation charged. 1!!_/
IV.

The Underlying Policy of Section 104(d).

What is most disconcerting about the enforcement policy now blessed
by the majority is its adverse effect on the Act's fundamental philosophy
of voluntary compliance. What compliance incentives exist when a mine
operator and his workforce who currently maintain a commendable safety
performance can be brought under the heavy hand of section 104(d) enforcement for errors alleged to have been committed weeks or months in the
past? 35/ Indeed, given the unlimited retroactivity inherent in the
majority's holding, section 104(d) sanctions are now authorized against
a current management and workforce that may not even have been involved
in the past completed violation. Particularly galling will be the retroactive issuance of withdrawal orders for violations that posed no conceivable threat to miner health and safety even when they first occurred
(e.g., recordkeeping violations). Only the first violation in a section
104(d) chain need be both significant and substantial and caused by unwarrantable failure to comply; subsequent withdrawal orders in the chain
need only allege unwarrantability.
33/

Statement of Solicitor Salem, oral argument, December 16, 1986 at

p-:- 21.

34/ These arguments are particularly true with regard to the Majorityvs
decision today in White County Coal Corp., supra, wherein the means of
abatement was the retraining of miners as to the requirements of the
operator's roof control plan. Indeed, if in this case and in White
County Coal Corp., the Secretary had alleged inadequate training as the
basis of the violations (as, apparently, it was) and had cited under
section 104(a), the deterent effect of enforcement espoused by the
majority would still have been achieved. Production would have been
stopped for the period of time needed to abate the violation, i.e.,
until the miners in question had been reinstructed in the hazards of
going under unsupported roof. In such a scenario the true purposes of
the Act would have been served within the limitations placed on the
Secretary by Congress with respect to past completed violations not
observed by inspectors in the course of their inspections.
35/ In a companion case decided today, Greenwich Collieries, supra,
l04(d) orders were issued for violations alleged to have occurred as far
back as 13 months.

1575

Furthermore, the carefully formulated enforcement scheme of section
104(d) is seriously undermined by today's decision, for despite their
protests to the contrary, the majority has effectively jettisoned the
90 day probationary period central to the operation of section 104 of
the Act. Logic dictates that the 90 day probationary period of section
104(d) can only be imposed prospectively in response to an extant violation that poses a discrete hazard to miner health or safety and that
evidences an operator's "continuing indifference, willful intent or
serious lack of reasonable care." U.S. Steel, supra. In this enforcement regimen, both management and miners are unequivocally put on notice
that any future violation, regardless of its seriousness, that results
from an unwarrantable failure to comply will result in a summary withdrawal order. By law the triggering citation is posted for both managers
and miners to see. The threat of a withdrawal order hangs like a Sword
of Damocles over every shift and every section for the ensuing 90 days.
Safety and health awareness is heightened as the attention of everyone
is focused on avoiding the adverse economic and productivity consequences
of unwarrantable failure violations. These practical yet motivational
incentives cannot but have a salutary effect on maintaining a safer and
more healthful workplace as the probationary period progresses. In sum,
the prospectively applied probationary period has definition, limits,
immediacy and practical consequences for those who must work under it
and establish a habit of compliance.
Though I hesitate to characterize the Mine Act's enforcement scheme
in criminal law terms, the obvious and primary purpose of section 104(d)
is rehabilitative. The majority's holding however would play hob with
the rehabilitative function of the probationary period by allowing the
Secretary to reach back continuously into the past to restart the 90 day
clock. In such circumstances the Sword of Damocles may never be sheathed.
Once that point is reached, the credibility of the enforcement program
is severely compromised, the incentive to voluntary compliance is dulled,
and bald harrassment becomes inevitable.
In summary, I do not hold with the majorityvs view that the Secretary
can impose section 104(d) sanctions for prior completed violations not
observed by his inspectors, Congress explicitly declined to delegate
such authority. Indeed, the legislative history on point clearly indicates
that section 104(d) was reserved by Congress for violations observed by
the inspector in the course of his inspection.
The inspector may, nevertheless, cite the operator under section
104(a) of the Act if upon "investigation" he "believes" a past violation,
not witnessed by him, has occurred. There is more than sufficient
"deterrent effect 11 in the civil penalty sanctions associated with section
104(a) as witnessed by the $5000.00 civil penalty assessed by Judge
Merlin in this case. Therefore, I would affirm his decision.

~
Chairman

1576

Distribution
Ann Rosenthal, Esq.
Vicki Shteir-Dunn, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Mary Lu Jordan, Esq.
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 20005
Thomas W. Meyers, Esq.
United Mine Workers of America
56000 Dilles Bottom
Shadyside, Ohio
43947
Timothy M. Biddle, Esq.
Thomas C. Means, Esq.
Paul W. Reidl, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
R. Henry Moore, Esq.
Buchanan Ingersoll
58th Floor, 6700 Grant Street
Pittsburgh, PA 15219
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W.
Washington, D.C, 20006

1577

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

September 30, 1987

WHITE COUNTY COAL CORPORATION
Docket Nos. LAKE 86-58-R
LAKE 86-59-R

v.
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

BEFORE:

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

DECISION
BY:

Backley, Doyle and Nelson, Commissioners

This proceeding arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seg. (1982), and presents us with an
issue, similar to that decided by us this date in Nacco Mining Co.,
9 FMSHRC ~' Docket Nos. LAKE 85-87-R and 86-2 (September 30, 1987):
May the Secretary of Labor, in the course of an inspection, issue orders
pursuant to section 104(d) of the Mine Act, 30 U.S.C. § 814(d), based
upon a violation that is detected after the violation has ceased to
exist? l/ Commission Administrative Law Judge Gary Melick held that
Section 104(d) statesg
(1) If, upon any inspection of a coal or other
mine, an authorized representative of the Secretary
finds that there has been a violation of any mandatory health or safety standard, and if he also finds
that, while the conditions created by such violation
do not cause imminent danger, such violation is of
such nature as could significantly and substantially
contribute to the cause and effect of a coal or
other mine safety or health hazard, and if he finds
such violation to be. caused by an unwarrantable
failure of such operator to comply with such mandatory health or safety standards, he shall include
such finding in any citation given to the operator
under this [Act]. If, during the same inspection or
any subsequent inspection of such mine within 90
days after the issuance of such citation, an autho-

1578

such orders could not be issued. 8 FMSHRC 921 (June 1986)(ALJ).
the reasons set forth in Nacco, supra, we reverse and remand.

For

The facts are not in dispute. On February 6, 1986, Inspector
Wolfgang Kaak of the Department of Labor's Mine Safety and Health
Administration ( 11 MSHA 11 ) was conducting a "spot" inspection, pursuant to
section 103(i) of the Mine Act, 30 U.S.C. § 813(i), of the Pattiki Mine
of White County Coal Corporation ("White County"), an underground coal
mine located in southern Illinois. During the inspection, he observed a
chalk line drawn for centering purposes on the unsupported roof of Room
No. 6. The chalk line extended from the last row of permanent supports
to the face for a distance of thirteen feet. Inspector Kaak was not
present when the chalk line was drawn and he observed no one under the
unsupported roof. However, the coal drill operator admitted to the
inspector that he had drawn the chalk line and had walked under
unsupported roof to do so, even though he had seen a red flag warning of
the danger. 8 FMSHRC at 922.
Inspector Kaak issued a section 104(d)(l) order of withdrawal to
White County, alleging an unwarrantable failure violation of mandatory
safety standard 30 C.F.R. § 75.200. £/ This violation was alleged in a
rized representative of the Secretary finds another
violation of any mandatory health or safety standard
and finds such violation to be also caused by an unwarrantable failure of such operator to so comply,
he shall forthwith issue an order requiring the
operator to cause all persons in the area affected
by such violation, except those persons referred to
in subsection (c) of this section to be withdrawn
from, and to be prohibited from entering, such area
until an authorized representative of the Secretary
determines that such violation has been abated.
(2)
If a withdrawal order with respect to any
area in a coal or other mine has been issued
pursuant to paragraph (1), a withdrawal order shall
promptly be issued by an authorized representative
of the Secretary who finds upon any subsequent
inspection the existence in such mine of violations
similar to those that resulted in the issuance of
the withdrawal order under paragraph (1) until such
time as an inspection of such mine discloses no
similar violations. Following an inspection of such
mine which discloses no similar violations, the
provisions of paragraph (1) shall again be applicable to that mine.
30 u.s.c. § 814(d)(l) & (2).
~/

30 C.F.R. § 75.200 provides in part:
No person shall proceed beyond the last permanent
support unless adequate temporary support is

1579

section 104(d)(l) order because, as the record reflects, a preceding
section 104(d)(l) citation had been issued approximately one month
earlier. 30 U.S.C. § 814(d)(l). According to the inspector 1 s
affidavit, the chalk line had been drawn one hour before he detected the
violation. The inspector terminated the order twenty-five minutes
later, after the miners were reinstructed on the roof control plan.
During a subsequent regular quarterly inspection of the mine, on
February 12, 1986, Inspector Kaak observed footprints under unsupported
roof in the crosscut between the No. 6 and 7 entries. Again, the
inspector did not observe anyone under the unsupported roof nor was he
able to obtain further information about the incident. The inspector
issued a section 104(d)(2) order of withdrawal to White County alleging
another unwarrantable failure violation of section 75.200 (n. 2 supra).
This violation was alleged in a section 104(d)(2) order because of the
preceding issuance of the section 104(d)(l) order. 30 U.S.C.§§ 814(d)
(1) & (2). This order was terminated approximately one hour after it
was issued.
White County contested both orders and challenged the unwarrantable failure findings. White County moved for summary decision,
arguing that the orders were invalid because they were not issued based
upon findings of existing violations. Relying on certain unreviewed
Commission administrative law judges 1 decisions, including two judges'
decisions that we reverse today, 3/ Judge Melick held that section
104(d) orders cannot be issued ba;ed upon findings of violations that
occurred in the past but no longer exist when detected by the inspector.
8 FMSHRC at 923. The judge found that the inspector did not observe any
violations being committed and based the section 104(d) orders upon
evidence of past violations. Id. Therefore, the judge granted White
County partial summary decisiofl:" modified the section 104(d) orders to
section 104(a) citations, 30 U.S.C. § 814(a), and ordered the parties to
confer regarding the desirability of further proceedings. 8 FMSHRC at
923-24, Thereafter, White County advised the judge that it did not wish
to contest the citations further, and the judge dismissed the case.
8 FMSHRC 994 (June 1986)(ALJ). We granted the Secretary of Labor's
petition for discretionary review and heard oral argument.
In Nacco, supra, we addressed the closely related question of
whether an inspector may issue a citation under section 104(d)(l) for a
violation not in existence at the time of its detection by an inspector.
We held that the enforcement sanctions of section 104(d) are not
restricted to existing violations observed by the inspector. Rather,·
these sanctions are to be applied to violations caused by the operator 1 s
unwarrantable failure to comply with mandatory standards -- regardless
of whether they are in existence at the time of detection. Nacco, slip
provided or unless such temporary support is not
required under the approved roof control plan and
the absence of such support will not pose a hazard
to the miners.
~/

Nacco, supra; Emerald Min~s Corporation, 9 FMSHRC ~-' Docket No.
PENN 85-298-R (September 30, 1987).

op. at 5-10. Accord: Emerald Mines, infra, slip op. at 4-6. We based
this conclusion on the text of section 104(d), its legislative history,
the section's purpose of deterrence, and the overall scheme of the Mine
Act. Id. We emphasized the importance of unwarrantable failure
findings within the context of the graduated enforcement scheme of
section 104(d) that provides "increasingly severe sanctions for
increasingly serious violations or operator behavior." Nacco, slip op.
at 5, quoting Cement Division, National Gypsum Co., 3 FMSHRC 822, 828
(April 1981). We held:
The threat of th[eJ "chain" of citations and
orders under section 104(d) provides a powerful
incentive for the operator to exercise special
vigilance in health and safety matters because it is
the conduct of the operator that triggers section
104(d) sanctions, not the coincidental timing of an
inspection with the occurrence of a violation. Indeed, Congress viewed section 104(d) as a key
element in the overall attempt to improve health and
safety practices in the mining industry ..•. To read
out of the Act the protections and incentives of
section 104(d) because an inspector is not physically present to observe a violation while it is
occurring distorts the focus and blunts the
effectiveness of section 104(d). We discern no
warrant for such a formalistic approach.

*
Throughout section 104(d), enforcement action is
consistently linked to the inspector 1 s determination
that a violation has resulted from the operator's
unwarrantable failure to comply with a mandatory
standard. The focus in section 104(d) is constantly
upon the operator 1 s conduct in failing to comply
with the cited mandatory standard, not upon the
current detection and existence of the violation.
Slip op. at 6 (citations omitted; emphasis in original).
Although the present case involves section 104(d)(l) and (2)
orders, whereas Nacco involved a section 104(d)(l) citation, the reasons
that led us to conclude that 104(d) citations could be issued for prior
violations not detected by the inspector at the time of occurrence apply
to orders issued under sections 104(d)(l) and (2) as well. Those
reasons apply whether a citation or order is involved because the focus
of section 104(d) is upon unwarrantable failure by the operator not upon
whether its detection occurs concurrently with its commission. Further,
section 104(d) orders are the procedural vehicles both specified and
required by the Mine Act for alleging violations involving unwarrantable
failure once a section 104(d)(l) citation has been issued. Therefore,
we hold that section 104(d) orders may be based upon violations detected
by the inspector during an inspection occurring after the violation has

1581

ceased to exist.
4-6. f±/

See Nacco, slip op. at 5-10; Emerald, slip op. at

With respect to the chalk line violation in this proceeding, the
inspector issued the contested section 104(d)(l) order within one hour
after learning that the coal drill operator had proceeded under
unsupported roof. The dangers of unsupported roof are well documented,
and the violation in this case, proceeding under unsupported roof, is
the type of violation that is unlikely to occur in the presence of an
inspector. See Nacco, slip op. at 7. The same considerations apply
with respect to the subsequent footprint violation. Such violations
will ordinarily be detected by an inspector only after they have
occurred. Under the rationale adopted by the judge, however, such
unwarrantable conduct would not be subject to the unwarrantable failure
sanctions mandated by the Mine Act.
To the extent that the judge's decision rests upon a conclusion
that only the term "inspection" appears in section 104(d) (as opposed to
the use of both "inspection" and 11 investigation 11 in section l04(a)) and
that the term inspection is limited to detection of presently existing
events only, we reject that rationale. First, the orders issued in this
case arose from a section 103(i) "spot" inspection and from a regular
quarterly inspection and, more importantly, as we held in Nacco, the
term inspection is broad and includes inquiry into past as well as
present events. Nacco, slip op. at 7-8.

!±I

See Greenwich Collieries, Div. of Pennsylvania Mines Corp.,
9 FMSHRC ~-' slip op. at 6, Nos. PENN 85-188-R, etc. (September 30,
1987), as to the Secretary's policy regarding withdrawal of miners from
a mine in those instances where section 104(d) orders are issued for
violations no longer in existence.

1582

We therefore reverse the judge and vacate his modification of the
section 104(d) orders to section 104(a) citations. Because the judge
held that these orders were not properly issued under section 104(d). he
did not reach the question of whether the alleged violations occurred as
a result of the unwarrantable failure of the operator to comply with 30
C.F.R. § 75.200. Therefore. we remand the matter to the judge for
further proceedings consistent with this decision.

L. Clair Nelson. Connnissioner

1583

Commissioner Lastowka, concurring:
In this case the administrative law judge granted a motion by White
County Coal Corporation for partial _summary decision. The judge's ruling
involved a question of law raised by White County concerning whether an
MSHA inspector properly could issue orders pursuant to section 104(d) of
the Mine Act alleging violations that had occurred but were no longer in
existence at the time of the MSHA inspection. The judge concluded that
because "the inspector did not observe any violations being committed
but ••• based his issuance of the [section] 104(d) orders ••• upon evidence of past violations", the orders were not properly issued pursuant
to section 104(d). 8 FMSHRC at 923. Accordingly, the judge modified
the orders to section 104(a) citations. Id.
I agree with the majority that the judge's conclusion on the question
of law at issue was erroneous and that a remand for further proceedings
is necessary. I write separately in order to set forth the basis for my
conclusion in the context of the particular circumstances of this case.
In ruling on motions for summary decision the facts must be viewed
in the light most favorable to the opposing party. United States v.
Diebold, Inc., 369 U.S. 654 (1962). See 6 Moore's Federal Practice,
§ 56.15[8] (1985).
Cast in this ligh~the factual background underlying the question of law before us can be summarized as follows. On
February 6, 1986, an MSHA inspector was conducting an inspection at White
County's mine pursuant to section 103(i) of the Mine Act. 1/ While conducting this inspection the inspector observed a chalk line drawn on the
roof of the mine in Room No. 6. The chalk line extended from the last row
of roof support bolts to the coal face, a distance of about 13 feet. The
miner who operated the coal drill admitted that he had drawn the chalk line
and that in doing so he had placed himself under unsupported roof.]:_/ The
1/

Section 103(i) provides:
Whenever the Secretary finds that a coal or other mine
liberates excessive quantities of methane or other explosive
gases during its operations, or that a methane or other gas
ignition or explosion has occurred in such mine which resulted
in death or serious injury at any time during the previous five
years, or that there exists in such mine some other especially
hazardous condition, he shall provide a minimum of one spot
inspection by his authorized representative of all or part of
such mine during every five working days at irregular intervals., •.

30 u.s,c, § 813(i).
2/
The chalk line served as a guide to ensure that the coal face would
be advanced in its .intended direction. See e.g., Deposition of Darrell
Gene Marshall at 4.
-- --

1584

miner's action in proceeding under unsupported roof violated mandatory
standard 30 C.F.R. § 75.200.
The MSHA inspector issued an order pursuant to section 104(d)(l) of
the Mine Act charging the operator with a violation of section 75.200
and finding that the violation resulted from an unwarrantable failure
on the part of the operator to comply with the standard. 3/
Six days later, on February 12, 1986, the same MSHA inspector was
conducting a regular quarterly inspection of the same mine, During this
inspection the inspector observed footprints on the mine floor in an
area of a crosscut that lacked roof support. The inspector was unable
to obtain infonnation enabling him to attribute the footprints to a particular miner. He concluded, however, that the footprints established
that a miner had been under unsupported roof in violation of 30 C.F.R.
§ 75.200. Because the inspector further found that the violation was
caused by White County's unwarrantable failure, and because he had issued
a section 104(d)(l) order six days previously, this second violation of
section 75.200 was alleged in an order issued pursuant to section 104(d)(2).
30 U.S.C. § 814(d)(2). (The text of section 104(d)(l) and (2) is set forth
in footnote 1 to the majority opinion).
The legal challenge raised by the operator against the issuance of
both orders is that because the inspector did not observe the violations
being committed, i.e., he did not actually witness miners proceeding under
unsupported roof but saw only physical evidence that they had done so, the
violations could not be charged in orders issued pursuant to section 104(d).
In another decision issued this date, the Commission has considered and
rejected a challenge to the Secretary of Labor's authority to issue
citations pursuant to section 104(d)(l) for violations that occurred but
are not in existence so as to be observable at the time of an MSHA
inspection. Nacco Mining Co., FMSHRC Docket Nos. LAKE 85-57-R, etc.,
September 30, 1987 (majority and concurring opinions). As explained
below, White County's challenge to the issuance of orders pursuant to
section 104(d) must be rejected for similar reasons.
First, as in Nacco, part of the argument advanced by the operator and
accepted by the administrative law judge concerns the presence of the word
"inspection" and the absence of the word "investigation" in section 104(d)
and the resulting impact, if any, on the Secretary's authority to charge
violations under section 104(d) based on the results of an "investigation."
As was the case in Nacco, it is unnecessary to address this quest~on in
the present case, Section 104(d) provides that an MSHA inspector can
undertake the enforcement action specified therein "upon any inspection of
a , .. mine. 11 30 U.S. C. § 814 ( d) (1) (emphasis added) • The two section
104(d) orders at issue in the present case were issued by the MSHA
inspector upon a section l03(i) spot inspection and a section 103(a)
3/
An order was issued pursuant to section 104(d)(l) because a citation
had been issued to the operator, within the preceding 90 days, for a
violation that MSHA found to be a significant and substantial violation
caused by the operator's unwarrantable failure. 30 U.S.C. § 814(d)(l).

1585

regular quarterly inspection, respectively. Therefore, the question of
whether MSHA can proceed under section 104(d) based upon the fruits of an
ninvestigation" is not presented by this case and properly is left to a
case in which that issue actually is presented. Nacco, slip op. at 14-15
(concurring opinion).
Second, because White County's arguments concerning the grammatical
structure of section 104(d) parallel those of the operator in Nacco, I
reject them for the reasons stated in my concurring opinion in Nacco.
In particular, I conclude that a plain reading of section 104(d) permits the Secretary to cite the operator thereunder for violations that
occurred prior to an MSHA inspector's arrival at the mine as well as for
violations actually observed by the inspector. Nacco, slip op. at 15- ·
16 (concurring opinion).
Third, as in Nacco, no damage is done to the enforcement logic underlying section 104(d) by upholding the Secretary's right to proceed under
section 104(d) in citing the violations at issue. The distinguishing
characteristic of section 104(d) is its focus on the operator's conduct
in connection with a violation, i.e., did the operator act "unwarrantablyn.
The nature of this inquiry and the manner in which it is determined are
the same regardless of whether an MSHA inspector is present to observe
the violative conduct. Nacco, slip op. at 17-18 (concurring opinion).
Furthermore, an important safety purpose is served by upholding the
Secretary's right to direct one of his "most powerful instruments for
enforcing mine safety" against violative conduct occurring out of the
sight of an MSHA inspector. Id. at 18-19, quoting UMWA v. FMSHRC & Kitt
Energy Corp., 768 F.2d 1477,-Y479 (D.C. Cir., 1984-Y-:--As is the case with
an observed violation, applying section 104(d)'s enforcement scheme against
unobserved violations will serve to forcefully dissuade repetition of the
violative conduct. Id.
Fourth, no practical problem is presented by upholding the Secretary's
right to proceed under section 104(d) in the circumstances of the present
case, Even before the issuance of the section 104(d) orders challenged here,
the operator already was under a section 104(d) probationary chain. See n. 3,
supra (concurring opinion), The inspectorvs issuance of the first section
104(d) order for a violation that the drill operator admitted he had just
committed, and the issuance of the second section 104(d) order six days later
for a violation that apparently had occurred only shortly before the inspector's arrival
Deposition of MSHA inspector at 7), present none of the
dire consequences claimed to be caused by permitting the citation under
section 104(d) of violations not actually observed at the time of their
commission, See, e, ., White Countyvs brief at 13-17. Prior to the issuance of the orders contested in this case, the operator knew that it was
on a section 104(d) chain and was aware of the consequences that would flow
from repetition of further unwarrantable violations. The violations alleged
to have been caused by the operator's unwarrantable failure were cited by
the inspector almost immediately after their occurrence. As was the case in
Nacco, when measured against the record before us, the specter of abuse that
the operator raises against the Secretary's right to proceed under section
104(d) for violations not observed by an inspector proves far more theoretical
than factual.

1586

Finally, the one facet of the enforcement of section 104(d) that
distinguishes the present case from Nacco requires no difference in result.
In Nacco the enforcement action taken by the Secretary was the issuance of
a section 104(d)(l) citation. Here, the MSHA inspector issued section
104(d)(l) and section 104(d)(2) orders. The course of the inspector's
enforcement actions, however, was dictated by the statutory scheme, not by
an exercise of discretion on his part. Once the inspector made the findings
set forth in section 104(d) concerning the existence of the violations and
the nature of the operator's conduct in connection with the violations, his
issuance of orders pursuant to section 104(d) was mandated by the Mine Act,
Thus, whether a citation or an order is to be issued under section 104(d) is
determined solely by whether and where the operator is on a section 104(d)
probationary chain, and the facts surrounding the violation. Insofar as the
appropriate extent of the withdrawal of miners caused by the issuance of an
order is concerned (See slip op. at 5 n,6 (majority opinion)), section
104(d)(l) provides that the withdrawal order shall cover "all persons in
the area affected by such violation.It 30 U.S.C. § 814(d)(l). The record
in the present case provides absolutely no indication that the inspector's
exercise of his authority to order withdrawal based on the violations at
issue exceeded proper bounds. See, e.g., Oral Arg. Tr. at 5-6.
Accordingly, I concur in the majority's reversal of the administrative
law judge's grant of partial summary judgment and the remand for further
appropriate proceedings.

1587

Chairman Ford, dissenting: .
For the reasons stated in my dissent today in Nacco Mining Co., 9 FMSHRC
(Sept. 30, 1987), I would affirm the decision of Administrative Law
Judge Melick in this case. That dissent is, therefore, incorporated by
reference herein. In my view, the Mine Act does not authorize the issuance
of any unwarrantable failure sanctions, be they citations in Nacco or withdrawal orders here, when the violations in question are past, completed and
not observed by the issuing inspector.
Furthermore, as noted at p. 35 of my dissent in Nacco, supra, all necessary
safety and health purposes would have been served, within the statutory framework, if the violations in this case had been cited under section l04(a).
30 U.S.C. 814(a). Production would have been interrupted until the offending
miners had been reinstructed in proper procedures regarding unsupported roof.
Here, the imposition of one of the Secretary's more formidable enforcement
tools served no additional purpose other than the hollow castigation of the
mine operator.
Accordingly, I dissent.

At:::~
Chairman

1588

Distribution
Ann Rosenthal, Esq.
Vicki Shteir-Dunn, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Mary Lu Jordan, Esq.
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 20005
Thomas W. Meyers, Esq.
United Hine Workers of America
56000 Dilles Botton
Shadyside, Ohio 43947
Timothy M. Biddle, Esq.
Thomas C. Means, Esq.
Paul W. Reidle, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
R. Henry Moore, Esq.
Buchanan Ingersoll
58th Floor, 6700 Grant St.
Pittsburgh, Pennsylvania 15219
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1589

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

September 30, 1987
EMERALD MINES CORPORATION
v.
Docket No. PENN 85-298-R

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

BEFORE:

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

DECISION
BY:

Backley, Doyle and Nelson, Commissioners

This proceeding arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (1982), and involves the issuance
of a citation pursuant to section 104(d)(l) of the Mine Act by an
inspector of the Department of Labor's Mine Safety and Health Administration C'MSHA 11 ) as a result of an inspection conducted pursuant to
section l03(g)(l) of the Act. ll Commission Administrative Law Judge
Section 104(d)(l) states:
If, upon an inspection of a coal or other mine~ an
authorized representative of the Secretary finds
that there has been a violation of any mandatory
health or safety standard, and if he also finds
that, while the conditions created by such violation
do not cause imminent danger, such violation is of
such nature as could significantly and substantially
contribute to the cause and effect of a coal or
other mine safety or health hazard, and if he finds
such violation to be caused by an unwarrantable
failure of such operator to comply with such
mandatory health or safety standards, he shall
include such finding in any citation given to the
operator under this [Act.] If, during the same
inspection or any subsequent inspection of such mine

1590

Gary Melick held that the section 104(d) citation was not properly
issued because the cited violative event had occurred several days
before the inspector visited the mine. The judge concluded that,
because the inspector had been engaged in an investigation of a past
event rather than in an inspection of an existing condition, only a
section 104(a) citation could be issued. 8 FMSHRC 324 (March
1986)(ALJ). The Conunission granted the petition for discretionary
review filed by the United Mine Workers of America ("UMWA") and heard
oral argument. In another case decided this date, Nacco Mining Co.,
9 FMSHRC
, Docket Nos. LAKE 85-87-R and 86-2 (September 30, 1987), we
concluded~hat the Mine Act permits the issuance of a section 104(d)(l)
citation under circumstances similar to those presented in this proceeding. For the reasons set forth in Nacco, we reverse and remand.
The essential facts are not in dispute. On July 30, 1985, MSHA
Inspector Joseph Koscho received a complaint pursuant to section
103(g)(l) of the Mine Act (n. 1 infra). The complaint alleged that a
within 90 days after the issuance of sue~ citation,
an authorized representative of the Secretary finds
another violation of any mandatory health or safety
standard and finds such violation to be also caused
by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring
the operator to cause all persons in the area
affected by such violation, except those persons
referred to in subsection (c) of this section to be
withdrawn from, and to be prohibited from entering,
such area until an authorized representative of the
Secretary determines that such violation has been
abated.
30 u.s.c. § 814(d)(l).
Section 103(g)(l) provides in part:
Whenever a representative of the miners or a miner
in the case of a ..• mine where there is no such
representative has reasonable grounds to believe
that a violation of this [Act] or a mandatory health
or safety standard exists~ .•• such miner or
representative shall have a right to obtain an
immediate inspection by giving notice to the
Secretary or his authorized representative of such
violation •... Upon receipt of such notification, a
special inspection shall be made as soon as possible
to determine if such violation or danger exists in
accordance with the provisions of this [Title]. If
the Secretary determines that a violation or danger
does not exist, he shall notify the miner or
representative of the miners in writing of such
determination.
30 u.s.c. § 813(g)(l).

1591

violative accumulation of methane had occurred at the No. 1 Mine of
Emerald Mines Corporation ( 11 Emerald 11 ) , an underground coal mine located
in Pennsylvania.
On July 31, 1985, Inspector Koscho went to the mine and reviewed
records with respect to the methane detectors and interviewed miners who
were present when the alleged methane accumulation occurred. On August
1, 1985, the inspector visited the site of the alleged accumulation,
tested for methane, and found only a small amount. He also tested the
methane monitor on the continuous mining machine used on July 29 and
found it to be working. However, on the basis of statements of miners
whom he interviewed, the inspector determined that on July 29 there had
been a violation of mandatory safety standard 30 C.F.R. § 75.308 when,
following the detection of methane accumulations of 2.5% to 2.6% in the
002 section, the continuous mining machine was not immediately deenergized while changes were being made in the ventilation of the
working places. ~/
On August 8, 1985, the inspector issued to Emerald a citation
pursuant to section 104(a) of the Mine Act, 30 U.S.C. § 814(a), alleging
a violation of section 75.308. The inspector also designated the
violation as being of a "significant and substantial" nature. On August
24, 1985, at the direction of his supervisor, Inspector Koscho modified
the citation to a citation issued pursuant to section 104(d)(l) of the
Act to reflect MSHA's assertion that the violation was caused by
Emerald's unwarrantable failure to comply with section 75.308.
Emerald contested the propriety of the section 104(d)(l) citation
essentially on the basis that it was issued for a violation that no
longer existed when detected by the MSHA inspector. Emerald then paid
the civil penalty proposed by the Secretary for the alleged violation.
In his decision, the judge found that Emerald's payment of the proposed
penalty waived any contest of the violation itself and of the significant and substantial finding. 8 FMSHRC at 325. However, the judge also
found that Emerald had tendered its payment under the mistaken
impression that the citation was issued pursuant to section 104(a) of
the Act rather than section 104(d)(l). The judge ruled that, in fairness, and to avoid any future detriment to the operator stemming from an
inaccurate record of its history of violations, Emerald's challenge to

~/

30 C.F.R. § 75.308 states in part:
If at any time the air at any working place, when
tested at a point not less than 12 inches from the
roof, face, or rib, contains 1.0 volume per centum
or more of methane, changes or adjustments shall be
made at once in the ventilation in such mine so that
such air shall contain less than 1.0 volume per
centum of methane. While such changes or adjustments are underway and until they have been
achieved, power to electric face equipment located
in such place shall be cut off ...•

1592

the unwarrantable failure finding survived. J/
With respect to the allegation of unwarrantable failure, the judge
held that such a finding under section 104(d) must be based upon an
inspection of the mine, and that the citation in this matter was not
founded upon an inspection but rather upon an investigation conducted
through subsequent interviews and the examination of records several
days later. 8 FMSHRC at 328. This conclusion resulted from the judge's
view that inspections pertain only to examinations of existing conditions and investigations pertain only to past events. Id. The judge
then modified the section 104(d) citation to a citation issued pursuant
to section 104(a) of the Act and dismissed the case. 8 FMSHRC at 32829. We conclude that the judge erred.
We have held today in Nacco that the enforcement sanction of a
section 104(d) citation is n~stricted to existing violations
observed by the inspector. Rather, a citation issued pursuant to
section 104(d)(l) may be applied to violations caused by the operator's
unwarrantable failure to comply with mandatory standards -- regardless
of whether the violations are in existence at the time that they are
detected by an inspector. Nacco, slip op. at 5-10. We based this
conclusion upon an examination of the text of section 104(d), its
legislative history, the section's purpose of deterrence, and the
overall enforcement scheme of the Mine Act. Id. We pointed
specifically to the graduated enforcement scheme of section 104(d) that
provides "increasingly severe sanctions for increasingly serious
violations or operator behavior." Slip op. at 5, quoting Cement
Division, National Gypsum Co., 3 FMSHRC 822, 828 (April 1981). We held:
The threat of th[e] "chain" of citations and
orders under section 104(d) provides a powerful
incentive for the operator to exercise special
vigilance in health and safety matters because
it is the conduct of the operator that triggers
section 104(d) sanctions, not the coincidental
timing of an inspection with the occurrence of a
violation. Indeed, Congress viewed section 104(d)
as a key element in the overall attempt to improve
health and safety practices in the mining industry .
... To read out of the Act the protections and
incentives of section 104(d) because an inspector is
not physically present to observe a violation while
it is occurring distorts the focus and blunts the
effectiveness of section 104(d). We discern no
warrant for such a formalistic approach.

Throughout section 104(d), enforcement action is

11

No issue concerning this aspect of the judge's decision has been
raised on review and we intimate no view as to the propriety of that
ruling.

1593

consistently linked to the inspector's determination
that a violation has resulted from the operator's
unwarrantable failure to comply with a mandatory
standard. The focus in section 104(d) is constantly
upon the operator's conduct in failing to comply
with the cited mandatory standard, not upon the
current detection and existence of the violation.
Slip op. at 6 (citations omitted; emphasis in original).
As noted in Nacco, many violations, by their very nature, are
unlikely to be observed until after they occur. Slip op. at 7. The
violation at issue in this case presents precisely such a situation.
The condition precedent to a violation of section 75.308 is the presence
of 1% or more of methane in a working place. The transitory nature of
methane accumulations and the vital necessity of immediately reducing
the level below 1% makes it unlikely that an inspector would discover a
violation of section 75.308 while it was occurring. Under the judge's
decision, such a past violation, even though caused by an operator's
unwarrantable failure, would escape the sanction and deterrent effect of
section 104(d), which is designed to address unwarrantable failure. As
we concluded in Nacco: "Were we to agree with the approach adopted by
the judge, the statutory disincentive for [such] operator misconduct
would be lost." Slip op. at 7.
As we indicated in Nacco, the term "inspection" in section 104(d)
of the Mine Act is not limited, for purposes of that section, to
observation of presently existing circumstances but includes inquiry
into past events as well. Slip op. at 7-8. The present case was
initiated by a complaint of a possible violation made to MSHA pursuant
to section 103(g)(l) of the Act. That section provides to representatives of miners the right to obtain an immediate "inspection"
whenever the representative has reasonable grounds to believe that a
violation exists. We stated in Nacco:
There is nothing in the language of section 103(g)
that requires the violation to be ongoing when the
inspector arrives at the mine site. As a practical
matter, the violation may have been corrected
shortly after the request of the miners' representative and before the inspector reaches the mine.
Yet the inspector is nonetheless on an "inspection"
and, if he finds that a violation has occurred, he
may cite it using the full panoply of sanctions
available under the Act.
Slip op. at 8.

Arguments similar to those advanced by the operator in Nacco
concerning the meaning of "investigation" and "inspection,!! the meaning
of the term 11 finds 11 in section 104(d), and the asserted "present time"
focus of section 104(d), have been raised herein by Emerald and are
rejected for the reasons set forth in Nacco.

1594

In sum, we conclude that a section 104(d) citation resulting from
a section 103(g)(l) inspection may be based upon a violation detected
during an inspection occurring after the violation has ceased to exist.
Thus, we hold that the judge erred in concluding that the citation was
issued improperly under section 104(d) of the Mine Act.
Accordingly, we reverse the judge and vacate his modification of
the section 104(d) citation to a section 104(a) citation. Because the
judge held that the section 104(d) citation was not issued properly, he
did not consider the merits of the unwarrantable failure allegation
included in the citation. Therefore, we remand this matter to the judge
for further proceedings consistent with this decision.

1595

Commissioner Lasiowka, concurring:
In this case the administrative law judge granted a motion by Emerald
.'lines Corporation for partial summary decision. Although Emerald raised
several alternative grounds upon which it believed summary decision was
appropriate, the sole basis articulated by the judge for his grant of the
motion was that because "the citation at bar was not based on an inspection
of the mine but upon an investigation through subsequent interviews and the
examination of records conducted by the inspector several days after the
incidents giving rise to the violation'', the violation could not be properly cited under section 104(d). 8 FMSHRC at 328. See also Tr. at
114-16. According , the judge modified the citation to one issued
pursuant to section 104(a) of the Mine Act. Id.
I agree with the
ority that the judge's grant of partial summary
decision was erroneous. I ·write separately to set forth the basis for my
conclusion in the context of the particular circumstances of this case.

Although the judge concluded that the citation was not properly issued
pursuant to section 104(d) because it was not based "on an inspection" of
Emerald's mine, the record flatly contradicts his premise. It is undisputed
that the ~IS1L\ inspector was at Emerald's mine pursuant to a miner's report
of an al
violation of the Mine Act and his request for an inspection
pursuant to section 103(g) of the Act. The miner's handwTitten report to
~·fSHA stated:
July 30, 1985

I am requesting a 103G [sic) at the Emerald Hine,
Waynesburg Pa. of an incident that occured [sic)
on July 29, 1985 in the 002 section on the Sam to
.'.+pm shift.
Amount of 2.6% [methane] was detected and the
mine foreman did not take the appropriate action
according to the law, but proceeded to make adjustments in air by
ling
out.
Exh. R-L

Section l03(g) of the Mine Act, referenced in the miner's report to
provides:
enever a representative of the miners or a miner ...
tas reasonable grounds to believe that a violation of
this Act or a mandatory health or safety standard
exists, or an imminent danger exists, such miner or
representative s!iall have a
to obtain an
immediate inspection by giving notice to the Secretary or 1lis authorized representative of such
violation or danger. Any such notice shall be

1596

reduced to writing, signed by the representative
of the miners or by the miner, and a copy shall be
provided the operator or his agent no later than at
the time of inspection, except that the operator or
his agent shall be notified forthwith if the complaint
indicates that an imminent danger exists. The name
of the person giving such notice and the names of
individual miners referred to therein shall not appear
in such copy or notification. Upon receipt of such
notification, a special inspection shall be made as
soon as possible to determine if such violation or
danger exists in accordance with the provisions of
this title. If the Secretary determines that a violation or danger does not exist, he shall notify the
miner or representative of the miners in writing of
such determination.
30 U.S.C. § 813(g) (1) (emphasis added). Pursuant to this grant of statutory
authority, the MSHA inspector conducted the requested inspection and, as
a result, issued the contested citation. Therefore, the challenged enforcement action taken by the Secretary under section 104(d) was indeed taken
"upon an inspection 11 and the judge erred in finding otherwise.
Although the judge did not discuss any further rationale for his grant
of partial summary decision, he did cite several administrative law judge
decisions, including that in Nacco Mining Co., 8 FMSHRC 59 (January 1986)(ALJ),
in support of his disposition. Today, the Commission has issued its decision
in Nacco reversing the judge's decision relied upon by the judge in the present
case.
Nacco, the majority and concurring opinions extensively discuss the
reasons why, as a matter of law, it is not improper for MSHA to proceed under
section 104(d) for violations that occurred but no longer exist at the time
of an ~1SHA inspection. Because the arguments raised by the operator in the
present case parallel, in all essentials, those raised and addressed in Nacco
I reject them for the reasons stated in my concurring opinion in Nacco, s
op. at 12-20.
I also note that in the present case, as in Nacco and White County Coal
Corp., D1SHRC Docket No. LAKE 86-58-R, etc., also issued this date, the
record discloses no impediment to a logical application of the enforcement
scheme provided for in section l04(d). The violation at issue was alleged
to have occurred on aonday, July 29, 1985. It was reported to MSHA on
Tuesday, July 30th. On Ju
31st and August 1st the MSHA inspector conducted
a section 103(g) inspection at the mine concerning the reported violation.
On August 8th he issued a citation pursuant to section 104(a) of the Mine Act,
which citation also found the violation to be "significant and substantial".
On
t 24th, a further finding that the violation resulted from an unwarrantable failure on the part of the operator was made. All the necessary
predicates for a section 104(d) (1) citation being met, the citation accordingly was modified to a section 104(d)(l) citation. With the issuance of
this modification, Emerald was given timely notice that it was subject to
a section 104(d) probationary chain and that further unwarrantable violations
during the next 90 days would result in the issuance of withdrawal orders.

159 7

Thus, in the circumstances of this case, the Secretary's action in
proceeding under section 104(d) in citing the violation at issue was procedurally proper and consistent with the intended purpose underlying
section 104(d). As in Nacco, "no injustice to the operator or ••• perversion
of section 104(d)'s enforcement scheme has been caused by the Secretary's
actions." Nacco, slip op. at 20 (concurring opinion).
Accordingly, I join the majority in reversing the judge's decision and
in remanding for further proceedings.

Commissioner

1598

Chairman Ford, dissenting:
For the reasons stated in my dissent today in Nacco Mining Co., 9 FMSHRC
(Sept. 30, 1987) I would affirm the decision of Administrative Law Judge
Melick. That dissent, therefore, is incorporated herein by reference. In
my view, sanctions issued pursuant to section 104(d), 30 u.s.c. 814(d) are
limited to ongoing violations actually observed by inspectors in the course
of their inspections. Here, the citation, originally issued pursuant to
section 104(a), 30 U.S.C. § 814(a), specified that it was based upon an.
investigation conducted in the course of several days after the violation
was alleged to have occurred. Section 104(d) clearly limits unwarrantable
failure sanctions to those violations discovered in the course of inspections,
not investigations into past occurrences.
Furthermore, the facts of this case raise the same issues with respect
to the 90 day probationary period of section 104(d) as were raised in Nacco,
supra. Here, the violation was alleged to have occurred on July 29, 1985.
It was charged in a section 104(a) citation issued August 8, 1985. Twentyfive days after the violation was alleged to have occurred, the citation was
modified August 23, 1985, on orders from the issuing inspector's superiors,
to allege unwarrantable failure under section 104(d).
As in Nacco, the majority gives no guidance as to how the 90 day period
is now to be computed when the triggering citation can be issued post hoc,
even though Emerald specifically raises the issue. Brief at pp. 17-18-.~
Does the probationary period begin on July 29, August 8, or August 23?
If, as the Secretary argues, the latter date is correct, the operator in
effect is subject to a 115 day probationary period and the statutory period
of 90 days is jettisoned. See generally, Nacco dissent, supra at pp. 33-34.
Lastly, on the facts of this case, it is apparent that the term
"inspection" has now been thoroughly elasticized to encompass all Secretarial enforcement activity. The so-called finding of unwarrantability
was in fact made by the issuing inspector's superiors who conducted no
investigation let alone inspection with respect to the alleged violation.
Such transparent bootstrapping so as to impose the unwarrantable failure
chain for a past abated violation seriously compromises the voluntary
compliance philosophy of the Act. See Nacco dissent, supra, p. 26.
Accordingly, I dissent.

Chairman

1599

Distribution
Ann Rosenthal, Esq.
Vicki Shteir-Dunn, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Mary Lu Jordan, Esq.
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 20005
Thomas W. Meyers, Esq.
United Mine Workers of America
56000 Dilles Botton
Shadyside, Ohio 43947
Timothy M. Biddle, Esq.
Thomas C. Means, Esq.
Paul W. Reidle, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
R. Henry Moore, Esq.
Buchanan Ingersoll
58th Floor, 6700 Grant St.
Pittsburgh, Pennsylvania 15219
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1600

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

September 30, 1987

GREENWICH COLLIERIES, DIVISION
OF PENNSYLVANIA MINES
CORPORATION
Docket Nos. PENN 85-188-R
PENN 85-189-R
PENN 85-190-R
PENN 85-191-R
PENN 85-192-R

v.

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

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

UNITED MINE WORKERS OF
AMERICA (UMWA)
Docket No. PENN 86-33

v.

GREENWICH COLLIERIES

BEFORE:

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

BY:

Backley, Doyle and Nelson, Commissioners

This consolidated contest and civil penalty case arising under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seg.
(1982), presents us with a question of law, similar to that decided this
date in Nacco Mining Co., 9 FMSH.RC ~' Docket Nos. LAKE 85-87-R and
86-2 (September 30, 1987): May the Secretary of Labor, in the course of
investigations, issue orders pursuant to section 104(d) of the Mine Act
based upon violations that are detected after the violations have ceased

1601

to exist? l/ Commission Administrative Law Judge Roy L. Maurer held
that such orders could not be issued. 8 FMSHRC 1105 (July 1986)(ALJ).
For the reasons stated in our decision in Nacco, supra, we reverse and
remand.
The essential facts are as follows: On February 16, 1984, a
methane ignition and explosion occurred at the Greenwich No. 1 mine, an
underground coal mine operated by Greenwich Collieries, Division of
Pennsylvania Mines Corporation ("Greenwich"), and located in southwestern Pennsylvania. Three miners were killed and eleven others were
injured in the explosion. Representatives of the Department of Labor's
Mine Safety and Health Administration ("MSHA") arrived at the mine,
engaged in rescue and recovery efforts, observed conditions at the site,
and began an investigation of the cause of the explosion. As part of
its investigation, MSHA examined the entire mine between February 25 and
April 5, 1984, and between March 27 and April 27, 1984, took sworn
statements from numerous individuals who participated in the recovery
operations or who had information regarding the conditions in the mine
prior to the explosion. The Secretary's investigators concluded that
the operator's unwarrantable failure to comply with five mandatory

lf

Section 104(d)(l) provides:
If, upon an inspection of a coal or other mine, an
authorized representative of the Secretary finds
that there has been a violation of any mandatory
health or safety standard, and if he also finds
that, while the conditions created by such violation
do not cause imminent danger, such violation is of
such nature as could significantly and substantially
contribute to the cause and effect of a coal or
other mine safety and health hazard, and if he finds
such violation to be caused by an unwarrantable
failure of such operator to comply with such
mandatory health or safety standards, he shall
include such finding in any citation given to the
operator under this [Act]. If, during the same
inspection or any subsequent inspection of such mine
within 90 days after the issuance of such citation,
an authorized representative of the Secretary finds
another violation of any mandatory health or safety
standard and finds such violation to be also caused
by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring
the operator to cause all persons in the area
affected by such violation, except those persons
referred to in subsection (c) of this section to be
withdrawn from, and to be prohibited from entering,
such area until an authorized representative of the
Secretary determines that such violation has been
abated.

30 u.s.c. § 814(d)(l).

1602

safety standards contributed to the accident. Therefore, on March 29,
1985, MSHA Inspector Theodore W. Glusko issued to Greenwich the five
section 104(d)(l) orders of withdrawal at issue in this case. The
orders alleged that violations of various safety standards had occurred
in December 1983 and January and February 1984. Each of the section
104(d)(l) orders indicated that they were based on a section 104(d)(l)
citation issued to Greenwich on February 24, 1984. The orders also
indicated that they were terminated at the time that they were issued.
No miners were withdrawn from the mine as a result of the orders.
Greenwich contested the orders and subsequently filed a motion for
summary decision, arguing that the orders were not issued properly under
section 104(d) because the inspector had not observed the violations
during an inspection but had concluded that the violations occurred
based on MSHA 1 s investigation after the violations had ceased to exist.
In granting Greenwich 1 s motion, the judge relied upon certain unreviewed
decisions of Commission administrative law judges, including two
decisions that we reverse today. 2/ He held that the orders were
invalid "because an order issued ~nder section 104(d) should be based on
an inspection as opposed to an investigation and the above orders state
on their face that the violations which had allegedly occurred are based
on an investigation and no longer then existed.ti 8 FMSHRC at 1107.
Consequently, the judge vacated the unwarrantable failure allegations
included in the section 104(d) orders, modified the orders to citations
issued pursuant to section 104(a), 30 U.S.C. § 814(a), and stated that
further proceedings would be held to resolve the remaining issues. 8
FMSHRC at 1107. Greenwich's motion for summary decision also contended
that the orders did not meet certain procedural prerequisites of section
104(d)(l) in that they were not issued within 90 days of the underlying
section 104(d) citation and were not issued "forthwith.ti Given his
disposition of the motion, the judge did not reach the merits of these
contentions.
The Secretary of Labor, joined by the United Mine Workers of
America, which intervened in the proceeding, filed with the Commission a
Petition for Interlocutory Review and a Motion to Stay Proceedings. We
granted both the petition and the motion and heard oral argument. We
conclude that the judge erred. In Nacco, supra, we set forth the proper
interpretation and application of section 104(d). We held that the
enforcement sanctions of section 104(d) are not restricted to existing
violations observed personally by the inspector. Rather, these
sanctions may also be applied to violations caused by the operator s
unwarrantable failure to comply with mandatory standards - regardless
of whether the violations are in existence at the time of their
detection. Nacco, slip op. at 5-10. Accord: Emerald Mines, infra, slip
op. at 4-6. We based this conclusion on the text of section l04(d), its
legislative history, the section 1 s purpose of deterrence and the overall
enforcement scheme of the Mine Act. We emphasized the importance of
unwarrantable failure findings within the graduated enforcement scheme
of section 104(d) that provides "increasingly severe sanctions for
~/

Nacco, supra; Emerald Mines Corporation, 9 FMSHRC
PENN-85-298-R (September 30, 1987).

1603

, Docket No.

increasingly serious violations or operator behavior. 11 Nacco, slip op.
at 5, quoting Cement Division, National Gypsum Co., 3 FMSHRC 822, 828
(April 1981). We held:
The threat of th[e] "chain" of citations and orders
under section 104(d) provides a powerful incentive
for the operator to exercise special vigilance in
health and safety matters because it is the conduct
of the operator that triggers section 104(d)
sanctions, not the coincidental timing of an
inspection with the occurrence of a violation.
Indeed, Congress viewed section 104(d) as a key
element in the overall attempt to improve health and
safety practices in the mining industry •... To
read out of the Act the protections and incentives
of section 104(d) because an inspector is not
physically present to observe a violation while it
is occurring distorts the focus and blunts the
effectiveness of section 104(d). We discern no
warrant for such a formalistic approach.

*
Throughout section 104(d), enforcement action is
consistently linked to the inspector's determination
that a violation has resulted from the operator 1 s
unwarrantable failure to comply with a mandatory
standard. The focus in section 104(d) is constantly
upon the operator's conduct in failing to comply
with the cited mandatory standard, not upon the
current detection and existence of the violation.
Slip op. at 6 (citations omitted; emphasis in original).
In addition, we rejected the suggestion that Congress intended to
distinguish between enforcement actions based upon an inspection and
those based upon an investigation, and held that inclusion of the terms
Hinspection or investigation" in section 104(a) as compared to use of
the term "inspection" alone in section 104(d) was without legal
significance regarding enforcement pursuant to section 104(d). Slip op.
at 7-8. We based this conclusion upon the fact that the terms are not
defined in the Mine Act, and that "common usage does not limit the
meaning of 1 inspection 1 to an observation of presently existing circumstances nor restrict the meaning of 'investigation' to an inquiry into
past events. 11 Slip op. at 8. The varied use of these terms within the
Act and its legislative history also support this conclusion. Slip op.
at 8-9.
Although the present case involves orders issued pursuant to
section 104(d)(l), whereas Nacco involved a citation issued pursuant to
that section, for the reasons stated in Nacco, we hold that orders
issued under section 104(d)(l) can also be based upon prior violations
not observed by the inspector at the time of occurrence. In another
case decided today, we have reached an identical conclusion. White

1604

County Coal Corp., 9 FMSHRC ~' Docket Nos. LAKE 86-58-R and LAKE
86-59-R (September 30, 1987). Further, as we held in White County,
supra, in general and assuming the other prerequisites for their
issuance have been met, "orders are the procedural vehicles both
specified and required by the Mine Act for alleging violations involving
unwarrantable failure once a section 104(d)(l) citation has been
issued." Slip op. at 4.
We noted in Nacco that many violations, by their very nature, are
not likely to be observed or detected until after they occur. Slip op.
at 7. This is particularly so where the violation is a failure to act
as required or where the violation causes or contributes to the event
being investigated. Both types of violation are present here. Two of
the section 104(d) orders allege a failure to conduct required mine
examinations, one being the pre-shift examination of the active workings
and the other being the weekly examination of the mine's ventilation
system. These examinations are designed to monitor potentially
hazardous conditions, including the accumulation of excessive levels of
methane. As such, they warn the operator of impending danger and are
necessary to assure overall mine safety. Under the judge's decision,
such critical violations, even though caused by an operator's
unwarrantable failure, would escape the unwarrantable failure sanction
established by Congress.
The remaining contested orders allege an insufficient volume and
velocity of air ventilating the mine, violations of the mine 1 s approved
ventilation system and methane and dust control plan, and a failure to
take required precautions when making changes in mine ventilation.
These allegations arose out of the inspection and investigation that the
Secretary was required to conduct in order to determine, among other
things, the cause of the accident and whether there was compliance with
mandatory health and safety standards. 30 U.S.C. § 813. One purpose of
such inspections and investigations is to avoid future accidents. If
the Secretary determines that violations contributing to an accident
were caused by the operator 1 s unwarrantable failure to comply with
mandatory health and safety standards, citation of the violations
pursuant to section 104(d) may deter future unwarrantable failure by an
operator to assure compliance with mandatory health or safety standards.
Congress did not intend to limit the inspectors 1 power to sanction
unwarrantable operator conduct by removing from the purview of sect~on
104(d) violations that occurred prior to a disaster but which were
discovered only after the disaster. As we noted in Nacco, "[t]he focus
in section 104(d) is constantly upon the operator 1 s conduct in failing
to comply with the cited mandatory standard, not upon the current
detection and existence of the violation." Slip op. at 6. For purposes
of section 104(d), Congress did not intend to make distinctions between
the citation of past and presently existing violations when it used the
words "inspection" and "investigation" in the Act. Slip op. at 7-8.
Consequently, section 104(d) enforcement actions may result from
"inspections" as well as "investigations."
Finally, although Greenwich argues that requiring the withdrawal
of miners for a violation that no longer exists violates due process

1605

considerations, no miners were withdrawn from the mine when the orders
in this matter were issued. The Secretary asserts that under such
circumstances the issuance of an order that does not require withdrawal
is consistent with his enforcement policy. Tr. Oral Arg. 20-21. This
policy is appropriate in such circumstances and in no small way has
persuaded us to conclude that the operator's due process argument on
this issue is not well founded.
For the foregoing reasons, we reverse the judge's legal conclusion
that the orders here are invalid because they were issued based upon an
investigation and after the violations ceased to exist. As noted above,
Greenwich also challenged the validity of the orders because they were
not issued within 90 days of the section 104(d)(l) citation upon which
they were based and were not issued "forthwith." Slip op. at 3. The
judge did not reach these issues and on remand shall rule specifically
on them. Further, there are other issues in this case regarding the
merits of the alleged violations and the Secretary's unwarrantable
failure allegations that should be resolved by the judge on remand.

~c-£~,Cv~
Richard V. Backley,

1606

Commissioner Lastowka, concurring:
In this case the administrative law judge granted in part a motion by
Greenwich Collieries for summary decision. In its motion Greenwich challenged
the validity of five orders issued by MSHA pursuant to section 104(d)(l)
of the Mine Act. Greenwich specified three grounds upon which it believed
summary decision was appropriate:
(1) The orders were not issued as a result of, and the
alleged violtions were not detected during, an inspection, as required by section 104(d)(l); on the contrary,
MSHA concluded that the alleged violations had occurred
based on an investigation after the alleged violations
no longer existed;
(2) the orders were not issued within 90 days of the
issuance of the section 104(d)(l) citation upon which
they were based; and
(3) the orders were not issued "forthwith" as required
by the Mine Act.
Greenwich's Motion for Summary Decision at 2.
The administrative law judge granted Greenwich's motion on the first
ground, finding it "dispositive." 8 FMSHRC at 1107. Therefore, he did not
reach Greenwich's other arguments in support of its request for summary
decision.
I agree with the majority that the judge's decision granting summary
decision must be reversed and the case remanded for further proceedings. I
write separately to explain the basis for my conclusion in the context of the
particular circumstances of this case.
In ruling on motions for summary decision the facts must be viewed in
the light most favorable to the opposing party, here, the Secretary. United
States v, Diebold, Inc., 369 U,S, 654 (1962). See 6 Moore 1 s Federal Practice,
§56.15[8](1985), In any event, the essential facts are undisputed and can be
summarized as follows. On February 16, 1984, three miners were killed and
several others were injured as a result of an explosion at the Greenwich
No, 1 Mine, This incident triggered MSHAvs exercise of most of the various
statutory responsibilities assigned to it under the Mine Act, MSHA participated in rescue and recovery efforts, conducted inspections of the mine,
investigated the cause of the explosion, issued numerous citations and orders
alleging violations of the Mine Act and issued a final report setting forth
its findings and conclusions concerning the explosion.
The particular action taken by MSHA that is challenged by the operator in
the present case is the issuance of five orders pursuant to section 104(d)(l)
of the Mine Act. Each of these orders allege a violation of a mandatory
standard, which MSHA de~ermined contributed to the cause of the explosion.
The orders were issued on March 29, 1985, thirteen and one-half months
after the explosion. The orders state that the violative conditions were
observed "during the investigation" of the explosion.

1607

The challenge to the procedural validity of these orders that was found
by the judge to be dispositive in part concerns whether, as a matter of law,
the Secretary properly can cite under section 104(d) of the Mine Act violations of the Act that occurred, but which were no longer in existence at the
time of an MSHA inspection so as to be observable by an inspector. As to
this aspect of the question of law before us, I agree with the majority that
simply because a violation occurs out of the sight of an }1SHA inspector and
the violative condition no longer exists at the time the inspector arrives
at the mine, the Secretary is not precluded from charging the violation in
a citation or order issued pursuant to section 104{d). For the reasons
stated in my concurring opinions in Nacco Mining Co., White County Coal
Corp., and Emerald Mines Corp., all issued this date, the Secretary's
authority to proceed under section 104{d) in such circumstances is consistent with the plain language of section 104{d). Furthermore, as I
emphasized in Nacco, White County and Emerald, depending on the particular
circumstances involved, the citation of unobserved violations pursuant to
section 104(d) can serve to accomplish that section's intended purpose
without damaging its underlying enforcement logic and without creating
impractical implementation problems.
Greenwich's challenge to the orders at issue includes the further assertion that the Secretary properly cannot proceed under section 104(d) if his
determination that a violation of the Mine Act occurred resulted from an
MSHA "investigation", rather than an MSHA "inspection." This argument also
was raised by the operators in Nacco, White County and Emerald. As
explained in my concurring opinions in those cases, however, consideration
of their argument was unnecessary because each of those cases involved MSHA
enforcement activity under section 104(d) that was, in fact, undertaken
"upon an inspection." 30 U.S.C. § 814(d)(l). The factual circumstances
surrounding MSHA's enforcement action in the present case are fundamentally
different from those in the other three cases and serve to better focus
consideration of the "inspection/investigation" issue. };._/
Section 104(d)(l) of the Mine Act provides that the enforcement action
specified therein can be undertaken by the Secretary "upon any inspection
of a coal or other mine. 11 30 U.S.C. § 814(d)(l)(emphasis added). The operator
argues, and the judge agreed 9 that because the word "inspection" and the word
11
investigation 11 are both used in the Mine Act in referring to various statutory
responsiblities of the Secretary, a distinctive impact on the nature of the
Secretaryvs activities was intended depending on the particular word used in
l/
Even in this case the Secretary suggests that consideration of the
issue may be inappropriate because, he asserts, the violative conditions
actually were observed by MSHA inspectors conducting post-accident
inspections. Oral Arg. Tr. at 3-4; Sec. Br. at 11-12. It is clear,
however, that the Secretaryis issuance of the orders some thirteen and
one-half months after the explosion was, in large part, based on information
derived from MSHA 1 s extensive investigation into the causes of the explosion.
Therefore, the question of law reserved in the other cases is fairly p~e
sented in the present case.

1608

a particular statutory provision. See, e.g., sections 103(a), 104(a) and
107(a)(inspections and investigations); sections 103(b) and 105(c)(2)(investigations); and sections 104(d) and (e) (inspections). As related to the
particular circumstances of the present case, the argument advanced is that
the challenged orders were all issued upon an "investigation", rather than
an "inspection", and therefore were not properly issued under section 104(d).
The varying uses in the Mine Act of the words "inspection" and
"investigation" are too numerous to attribute simply to editorial oversight
or imprecise draftmanship. The Mine Act does not define the words, however,
requiring that common usage be the first resort to determine their meaning.
2A Sutherland Statutory Construction, §§ 47.01, 47.28 (4th ed. 1984). In
Webster 1 s Third New International Dictionary (1971) common definitions of
the words are provided which suggest that there are shades of distinctions
in their meanings, but which also suggest that the meanings of the two words
overlap to a certain extent and are not mutually exclusive. 2/ As is stated
in the majority opinion in Nacco, in common usage "[b]oth words can encompass
an examination of present and past events and of existing and expired conditions and circumstances." Nacco, supra, slip op. at 8.
The question therefore becomes whether the distinctions or the similarities in the meanings of the words are to be given emphasis in the context of
section 104(d). If the distinctions in meanings are emphasized, then the
operator is correct and the Secretary is not authorized to issue citations
or orders pursuant to section 104(d) if his determination that a violation
occurred is based on information derived from an investigation. Conversely,
if the similarities in the meanings of the words are given emphasis, then
violations determined to exist as a result of MSHA investigations properly
may be cited under section 104(d).
For the reasons stated below, I agree with the majority's discussion
and conclusion in Nacco (slip op. at 7-9) that, in the particular context
of section 104(d), the presence of the word "inspection" and the absence
of the word "investigation" in referring to the Secretary's enforcement
activities authorized therein was not intended to have the substantive
effect on the Secretary 1 s authority argued for by the operator.
The distinguishing feature of section 104(d) is its authorization of the
Secretary to make a special finding that a violation was caused by an
2/

Eog,, "inspection: a strict or close examination; • , . an
examination or survey of a community, or premises, or
an installation by an authorized person (as to determine compliance with regulations or susceptibility to
fire or other hazards."

~-

"investigation: detailed examination: study, research;
a searching inquiry, an official probe. 11
Webster's, supra, at 1170, 1189.

"unwarrantable failure" of the operator to comply with the Act or a mandatory standard, The particular importance of an unwarrantable failure finding
stems from the probationary effect triggered by its presence in a citation
or order. Once a citation containing an unwarrantable failure finding and
a significant and substantial finding has been issued, any further violation
also caused by an unwarrantable failure within 90 days requires issuance of
a withdrawal order, as do still further violations until a complete, clean
inspection of the mine has taken place. UMWA v. FMSHRC & Kitt Energy Corp.,
768 F.2d 1477, 1479 (D.C. Cir. 1984). ThUS:-the plain focus of section
104(d)ts enforcement scheme is on the conduct of a mine operator in relation
to the occurrence of a violation. If a violation results from an operator's
unwarrantable failure, tithe statute requires that a higher toll be exacted
from the operator than is exacted in situations where, although a violation
has occurred, the operator has not acted unwarrantably." Nacco, slip op.
at 18 (concurring opinion).
Section 104(d) is one of "the Secretary's most powerful instruments for
enforcing mine safety" (Kitt Energy, supra, 768 F.2d at 1479), and the construction of unnecessary impediments hindering the Secretary's ability to
fully exercise this special authority should not be undertaken lightly. As
described above the focus of section 104(d) is on the conduct of an operator in connection with a violation. In this regard it must be emphasized
that the nature of an operator's conduct in relation to a particular violation will not change depending on whether MSHA discovered the fact of
violation through an inspection or through an investigation. Acceptance of
the operator's argument in the context of section 104(d) would mean that
the enforcement procedure established by Congress to specifically address
and deter unwarrantable conduct on the part of mine operators could not be
invoked in a large number of instances simply because the operator's unwarrantable violation was discovered during an MSHA "investigation" rather
than during an MSHA "inspection."
Given the remedial purpose of the Mine Act, the deterrent purpose of
section 104(d) in particular, the lack of special definitions of "inspectionn
and
in the Mine Act, the substantial overlap in the commonly
understand meanings of the words and the lack of any overriding contrary
indication in the legislative history as discussed by the majority and dissenting opinions in this decision and the other decisions issued this date,
I conclude that the Secretary properly can proceed under section 104(d) of
the Mine Act in issuing citations and orders for violations that MSHA
determines,
the course of an investigation, to have occurred at a
mineo Therefore, I concur in the majority's reversal of the judge's contrary conclusion and in the remand for further appropriate proceedings.
I note that the further proceedings in this case necessarily will
encompass consideration of the operator's remaining challenges to the
validity of the section l04(d) orders at issue which were not reached by
the judge in his first decision. These arguments concern the effect, if
any, on the validity of the section 104(d) orders caused by the lapse of
time between the occurrence of the violations, MSHA's determination that
the violations occurred and the date that the orders ultimately were issued.
In rejecting those arguments of the operator discussed in this opinion, I
intimate no view as to the merits of the remaining arguments. They too raise

1610

important questions that will have to be resolved in light of the language
and purpose of section 104(d). the particular circumstances surrounding the
violations and the manner in which the Secretary proceeded in issuing the
contested orders. 3/

Commissioner

3/
I believe that the majority's expression of opinion concerning the
Secretary's policy of issuing withdrawal orders that have no idling effect
is premature. Slip op. at 5-6. In my view, that aspect of this case requires
full consideration in conjunction with the disposition of the important
issues remaining in this case.

1611

Chairman Ford, dissenting:
For the reasons stated in my dissent today in Nacco Mining Co., 9 FMSHRC
(Sept. 30, 1987), I would affirm the decision of Administrative Law
Judge Maurer in this case. That dissent is, therefore, incorporated herein
by reference. In my view the statutory restrictions on the use of unwarrantable failure sanctions for past completed violations unobserved by the
inspector apply equally to citations and orders issued under section 104(d).
30 u.s.c. 814(d).
Furthermore, as noted in my Nacco dissent, supra, at pp. 33-36, the
majority's decision places no temporal restrictions on the imposition of
section 104(d) sanctions. The majority suggests that a procedural challenge
may lie where section 104(d) orders are issued 13 months after the issuance
of an underlying 104(d)(l) citation. However, the surer remedy against such
gross distortions of the unwarrantable failure uchain" would be to restrict
the application of section 104(d) to extant violations observed by inspec- ·
tors in the course of their inspections. I firmly contend that the statute
so provides.
Unlike my colleagues, I am not persuaded that a closure order that
closes no mine or part thereof - or that withdraws no miners - serves the
Secretary's enforcement policy. As noted in my Nacco dissent at p. 15,
such an enforcement action is a dead letter, or as Greenwich contends, a
"sham. 11 Brief at p. 13.
Accordingly, I dissent.

~~
Chairm n

1612

Distribution
Ann Rosenthal, Esq.
Vicki Shteir-Dunn, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Mary Lu Jordan, Esq.
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 20005
Thomas W. Meyers, Esq.
United Mine Workers of America
56000 Dilles Botton
Shadyside, Ohio 43947
Timothy M. Biddle, Esq.
Thomas C. Means, Esq.
Paul W. Reidl, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
R. Henry Moore, Esq.
Rose, Schmidt, Chapman, Duff & Hasley
900 Oliver Bldg.
Pittsburgh, Pennsylvania 15222
Administrative Law Judge Roy J. Maurer
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1613

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

September 30, 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)
Docket No. WEVA 85-169

v.

QUINLAND COALS, INC.

BEFORE:

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

BY THE COMMISSION:
This civil penalty case arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)(the "Mine Act"), and
presents three issues: (1) whether substantial evidence supports
Commission Administrative Law Judge William Fauver 1 s findings of
violations of 30 C.F.R. § 75.200 and 30 C.F.R. § 75.303, and his finding
of negligence with respect to the violation of section 75.200 ; (2)
whether an allegation by the Secretary of Labor ("Secretary") that a
violation was caused by an operator's unwarrantable failure to comply
with a cited standard can be contested in a civil penalty proceeding,
where the order itself was not contested pursuant to section 105(d); and
(3) whether the judge erred in considering certain exhibits. For the
reasons that follow, we affirm the judge's findings of violation and
negligence, hold that the judge erred in failing to rule on the merits
of the unwarrantable failure allegation, and conclude that the judge 1 s
consideration of the exhibits was not improper.
I.

The No. 1 Mine operated by Quinland Coals, Inc. ( 11 Quinland 11 ) is an
underground coal mine located in southern West Virginia. On October 11,
1984, Ernest Thompson, an inspector of the Department of Labor's Mine
Safety and Health Administration ( 11 MSHA"), conducted an inspection of
the mine in order to inspect seals located in the mine 1 s East Mains
area. 1/ The alleged violations concern the roof conditions in the

ll

The seals are concrete block bulkheads notched at least six inches
into the ribs and flush with the floor and the roof. They were
constructed following a methane explosion. Their purpose is to seal off
the area where the explosion occurred from the rest of the mine.

1614

entry in which the No. 7 seal is located.
The entry was accessible from a crosscut. In the entry and near
its intersection with that crosscut, the inspector observed a large roof
fall and as he walked toward the seal, he observed approximately ten
broken posts lying on the ground in the entry. The inspector also
observed that one side of the seal was being crushed by the weight of
the roof. He noted that the roof was cracked and that the cracks ran
from the roof fall to and beyond the seal. The inspector testified that
he heard hissing through the cracks and that his methane detector
registered an atmosphere of more than 5% methane in the inunediate
vicinity of the seal.
The inspector found that these conditions constituted a violation
of 30 C.F.R. § 75.200 in that the roof was not adequately supported to
protect persons from falls. ~/ The inspector also found that this
violation was the result of Quinland's unwarrantable failure to comply
with section 75.200 and that the violation significantly and substantially contributed to a mine safety hazard. 30 U.S.C. § 814(d)(l).
Because a citation had been issued to Quinland pursuant to section
104(d)(l) of the Mine Act, within 90 days prior to the October 11, 1984
inspection, the inspector cited the violation of section 75.200 in an
order issued pursuant to section 104(d)(l). Id. }/ Quinland abated the
Tr. 21. See also Bureau of Mines, U.S. Department of Interior, A Dictionary of Mining, Mineral, and Related Terms 975 (1968).
~/

Section 75.200, which restates section 302(a) of the Mine Act, 30
U.S.C. § 862(a), provides in part:
Each operator shall undertake to carry out on a
continuing basis a program to improve the roof
control system of each coal mine and the means and
measures to accomplish such system. The roof and
ribs of all active underground roadways, travelways,
and working places shall be supported or otherwise
controlled adequately to protect persons from falls
of the roof or ribs. A roof control plan and
revisions thereof suitable to the roof conditions
and mining system of each coal mine and approved by
the Secretary shall be adopted and set out in
printed form ....
(Emphasis added.)

}/

Section 104(d)(l) of the Mine Act states:
If, upon any inspection of a coal or other mine,
an authorized representative of the Secretary finds
that there has been a violation of any mandatory
health or safety standard, and if he also finds
that, while the conditions created by such violation
do not cause imminent danger, such violation is of
such nature as could significantly and substantially

1615

section 75.200 violation by installing approximately 20 posts in the
entry in order to support the roof.
Following the underground portion of the inspection, the inspector
returned to the surface and went to the mine office where he reviewed
that portion of the preshift examination record book relating to the No.
7 seal area. The inspector observed the word 11 clear 11 written in the
book to describe the condition of the No. 7 seal area as found by the
preshift examiner on October 11, 1984. The inspector found that the
failure to record the condition of the roof and the presence of the
methane indicated that the preshift examination on October 11 was
inadequate and that it constituted a violation of 30 C.F.R. §75.303. ~/
contribute to the cause and effect of a coal or
other mine safety or health hazard, and if he finds
such violation to be caused by an unwarrantable
failure of such operator to comply with such
mandatory health or safety standards, he shall
include such finding in any citation given to the
operator under this [Act]. If, during the same
inspection or any subsequent inspection of such mine
within 90 days after the issuance of such citation,
an authorized representative of the Secretary finds
another violation of any mandatory health or safety
standard and finds such violation to be also caused
by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring
the operator to cause all persons in the area
affected by such violation, except those persons
referred to in subsection (c) of this section to be
withdrawn from, and to be prohibited from entering,
such area until an authorized representative of the
Secretary determines that such violation has been
abated,
~/

Section 75.303, which restates section 303(d)(l) of the Mine Act,
30 U.S.C. §863(d)(l), provides in part:
(a) Within 3 hours immediately preceding the
beginning of any shift, and before any miner in such
shift enters the active workings of a coal mine,
certified persons designated by the operator of the
mine shall examine such workings and any other
underground area of the mine designated by the
Secretary or his authorized representative. Each
such examiner shall examine every working section in
such workings and shall make tests in each such
working section for accumulations of methane with
means approved by the Secretary for detecting
methane, and shall ..• examine seals and doors to
determine whether they are functioning properly;
examine and test the roof, face, and rib conditions
in such working section •.. and examine for such
other hazards and violations of the mandatory health

1616

The inspector also found that the inadequate examination was the result
of Quinland's unwarrantable failure to comply with section 75.303 and
significantly and substantially contributed to a mine safety hazard.
Accordingly, the inspector issued a second section 104(d)(l) order of
withdrawal.
Quinland did not contest the section 104(d)(l) orders within 30
days of their receipt. 30 U.S.C. §815(d). In March 1985, however, when
the Secretary proposed civil penalties for the violations, Quinland
requested a hearing. 30 U.S.C. §815(a). In answer to the Secretary's
civil penalty assessment petition, Quinland denied that it violated the
cited mandatory safety standards. In addition, Quinland asserted that
"should a violation [of section 75.200] be found to exist ... the
unwarrantable feature of the violation is improper."
Following an evidentiary hearing, the administrative law judge
concluded that Quinland violated both sections 75.200 and 75.303.
8 FMSHRC 1175 (August 1986)(ALJ). The judge credited the testimony of
the inspector and found that the condition of the roof was inadequate to
protect persons from roof falls. 8 FMSHRC at 1178. Regarding the
preshift examination, the judge found that the hazardous condition of
the roof should have been reported by the preshift examiner on
October 11, 1984, and that the failure to do so was a violation of
section 75.303. 8 FMSHRC 1178-79. The judge held, however, that the
failure of the preshift examiner to note the presence of methane did not
violate the standard because the Secretary did not prove that methane
was present at the time of the preshift examination. 8 FMSHRC at 1179.
The judge found that both violations were of a significant and
substantial nature, but made no finding as to whether the violation of
section 75.200 was due to Quinland's unwarrantable failure to comply
with the standard. The judge assessed civil penalties of $850 for the
violation of section 75.200 and $450 for the violation of section
75.303. We granted Quinland 1 s petition for discretionary review.
II.
Section 75.200 requires that roof and ribs 11 be supported or
otherwise controlled adequately." Liability for an alleged violation of
this standard is resolved by reference to whether a reasonably prudent
person, familiar with the mining industry and the protective purpose of
the standard, would have recognized that the roof or ribs were not
adequately supported or otherwise controlled. Specifically, the
or safety standards, as an authorized representative
of the Secretary may from time to time require .•..
Upon completing his examination, such miner examiner
shall report the results of his examination to a
person, designated by the operator to receive such
reports ..• before other persons enter the
underground areas of such mine to work in such
shift. Each such mine examiner shall also record
the results of his examination with ink or indelible
pencil in a book approved by the Secretary ....

1617

adequacy of particular roof support must be measured against what a
reasonably prudent person, familiar with the mining industry and the
protective purpose of the standard, would have provided in order to meet
the protection intended by the standard.
Canon Coal Co., 9 FMSHRC 667,
668 (April 1987). Cf. Ozark-Mahoney Co., 8 FMSHRC 190, 191-92 (February
1986); Great Wester-;-Electric Co., 5 FMSHRC 840, 841-42 (May 1983), U.S.
Steel Corp., 5 FMSHRC 3, 5 (January 1983); Alabama By-Products Corp.-,~4 FMSHRC 2128, 2129 (December 1982). Measured against this test, we
conclude that substantial evidence supports the judge 1 s conclusion that
the roof support in the area of the No. 7 seal was inadequate. ~/
In holding that Quinland violated section 75.200, the judge
credited the testimony of the inspector that the roof support in the No.
7 seal entry was inadequate to protect persons from roof falls.
8 FMSHRC at 1178. The inspector's testimony regarding the conditions of
the roof was detailed and essentially uncontradicted. The inspector
described the roof fall, the broken posts, the damage to the No. 7 seal
caused by the weight of the roof, and the cracks in the roof. The
inspector stated that the roof had "dropped down approximately an inch
•.• [and] ... was leaning on what supports they had in there and the
seal." Tr. 26. The inspector believed that the weight on the roof
caused the posts to break. Dust on some of the broken posts indicated
to the inspector that the posts had been broken for perhaps a month or
two and that the deterioration of the roof was progressive.
We have recognized that a "judge 1 s credibility findings ... should
not be overturned lightly." Robinette v. United Castle Coal Co.,
3 FMSHRC 803, 813 (April 1981). Accord, Bjes v. Consolidation Coal Co.,
6 FMSHRC 1411, 1418 (June 1984). Quinland's witnesses did not dispute
the condition of the roof as described by the inspector. Indeed, they
confirmed generally what the inspector had seen. The mine foreman
stated that the area in which the seals were located had "bad top" in
places. Tr. 124. Quinland's preshift examiner acknowledged that some
broken posts had not been replaced. Tr. 200. Both agreed that some
posts had been broken for a month or more.
Thus, in view of the inspector 1 s detailed testimony describing the
conditions in the area of the No. 7 seal, the mine foreman's
acknowledgement that the roof was bad generally and the pre-shift
examiner 1 s acknowledgement that some broken posts had not been replaced,
we conclude that substantial evidence supports the judge 1 s finding of a
violation of section 75.200. Further, given this evidence establishing
that the violation of section 75.200 was visually obvious and had
existed for a protracted time, we find that substantial evidence also
supports the judge 1 s conclusion that Quinland was negligent in allowing
the violation of section 75.200 to exist.
~I

Quinland 1 s assertion that the Secretary is estopped from alleging
a violation of section 75.200 because MSHA inspectors had found
previously that the roof in the area of the No. 7 seal was adequately
supported is rejected. King Knob Coal Co., Inc., 3 FMSHRC 1417, 1421-22
(June 1981); See also Burgess Mining and Construction Co., 3 FMSHRC 296,
297 (February 1981).

We also affirm the judge's finding that Quinland violated section
75.303. The preshift examiner was aware of the conditions but did not
report them. As held above, a reasonably prudent person would have
concluded that the roof was not adequately supported. Section 75.303
requires the preshift examiner to report hazardous conditions and
violations of mandatory safety standards such as inadequately supported
roof. In failing to report that condition, the preshift examiner
violated the standard.
III.
The inspector found that the violation of section 75.200, as cited
in the section 104(d)(l) order, was the result of Quinland's unwarrantable failure to comply with the mandatory standard. As noted, Quinland
did not contest the validity of the order pursuant to section 105(d) of
the Mine Act. 6/ Instead, in contesting the Secretary's penalty
proposal pursu;nt to section 105(a) of the Act, Quinland contended
specifically that the unwarrantable failure finding was improper. ZI

QI

Section 105(d) states in part:
If, within 30 days of receipt thereof, an operator
of a coal or other mine notifies the Secretary that
he intends to contest the issuance or modification
of an order issued under section 814 of this [Act],
or citation or a notification of proposed assessment
of a penalty issued under subsection (a) or (b) of
this section, or the reasonableness of the length of
abatement time fixed in a citation or modification
thereof issued under section 814 of this [Act], or
any miner or representative of miners notifies the
Secretary of an intention to contest the issuance,
modification, or termination of any order issued
under section 814 of this (Act], or the
reasonableness of the length of time set for
abatement by a citation or modification thereof
issued under section 814 of this [Act], the
Secretary shall immediately advise the Commission of
such notification, and the Commission shall 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 on findings of fact,
affirming, modifying, or vacating the Secretary's
citation, order, or proposed penalty, or directing
other appropriate relief .•..

30 U~S.C. § 815(d).

ZI

Section 105(a) states in part:
If, after an inspection or investigation, the
Secretary issues a citation or order under section

1619

The judge did not address this argument. On review Quinland argues that
the judge erred in failing to rule on the merits of its challenge to the
unwarrantable failure finding. The Secretary responds that under these
circumstances the issue of whether a violation is caused by an
unwarrantable failure may be considered only in a section lOS(d)
proceeding to review a citation or order, and not in a section lOS(a)
penalty proceeding. ~/ We hold that the validity of such findings is a
proper subject for review in a penalty proceeding.
The contest provisions of section 105 are an interrelated whole.
We have consistently construed section 105 to encourage substantive
review rather than to foreclose it. See, ~· Energy Fuels Corp.,
1 FMSHRC 299, 309 (May 1979). The statutory scheme for review set forth
in section 105 provides for an operator's contest of citations, orders,
and proposed assessment of civil penalties. Generally, it affords the
operator two avenues of review. Not only may the operator immediately
contest a citation or order within 30 days of receipt thereof, 30 U.S.C.
§815(d), but he also may initiate a contest following the Secretary 1 s
subsequent proposed assessment of a civil penalty within 30 days of the
Secretary 1 s notification of the penalty proposal. 30 U.S.C. §
[104] of this [Act], he shall, within a reasonable
time after the termination of such inspection or
investigation, notify the operator by certified mail
of the civil penalty proposed to be assessed under
section [llO(a)] of this [Act] for the violation
cited and that the operator has 30 days within which
to notify the Secretary that he wishes to contest
the citation or proposed assessment of penalty. A
copy of such notification shall be sent by mail to
the representative of miners in such mine. If,
within 30 days from the receipt of the notification
issued by the Secretary, the operator fails to
notify the Secretary that he intends to contest the
citation or the proposed assessment of penalty and
no notice is filed by any miner or representative of
miners under subsection (d) of this section within
such time, the citation and the proposed assessment
of penalty shall be deemed a final order of the
Commission and not subject to review by any court or
agency ....
30 U.S.C. § 815(a),
~!

Several unreviewed decisions of various Commission administrative
law judges reflect disagreement on this issue. Two decisions hold that
the merits of an unwarrantable failure finding may be reviewed in a
civil penalty proceeding. C. F. & I. Steel Corp., 4 FMSHRC 1776, 1786,
(September 1982) (ALJ Carlson); Price River Coal Co., 3 FMSHRC 1766,
1771-73 (October 1983) (ALJ Vail). Three decisions reach the opposite
conclusion. Turner Brothers, Inc., 6 FMSHRC 2125, 2130 (September 1980)
(ALJ Koutras); Clinchfield Coal Co., 2 FMSHRC 290, 292 (February 1980)
(ALJ Moore); Windsor Power House Coal Co., 6 FMSHRC 1739, 1740-41 (July
1980) (ALJ Melick).

1620

815(a). 9/
The interrelationship between a contest proceeding and a civil
penalty proceeding has, in the past, been a source of confusion and
dispute over the issues that may be raised properly in each proceeding
and over their preclusive effect once raised. In resolving these
arguments we have afforded a wide latitude for review and eschewed
preclusion. For example, in Energy Fuels, supra, we rejected the
Secretary 1 s argument that review of a violation and special findings
contained in an abated citation is available only in a civil penalty
proceeding. We found that the language of the Act did not so limit
review and that the purposes of the Act and the interests of those
subject to it are best served by permitting an immediate contest. 1
FMSHRC at 309. 10/ Here, the Secretary argues that failure to seek an
immediate contest of the order containing the alleged violation bars the
operator from challenging the validity of special findings in a
subsequent civil penalty proceeding. We reject once again a restrictive
interpretation of section 105. Because under the Mine Act a special
finding is a critical consideration in evaluating the nature of the
violation alleged and bears upon the appropriate penalty to be assessed,
we conclude that the Act does not preclude the review of special
findings in a civil penalty proceeding and that the purpose of the Act
and the interests of those subject to it are best served by permitting
review.
There is no dispute that the fact of violation may be placed in
issue by the operator in a civil penalty proceeding regardless of
whether the operator has availed itself of the opportunity to contest
the citation or order in which the allegation of violation is contained.
The Commission also has held that the procedural propriety of the
issuance of a withdrawal order does not affect the allegation of a
violation contained in the order. Island Creek Coal Co., 2 FMSHRC 279,
280 (February 1980); Van Mulvehill Coal Co., 2 FMSHRC 283, 284 (February

21

The procedures followed by the Secretary in proposing penalties
for violations usually result in an operator 1 s receipt of the
Secretary 1 s notice of proposed penalty at a time substantially after the
expiration of the 30-day period within which the operator may contest a
citation or order.

10/
The special findings of "unwarrantable failure 11 and "significant
and substantial 0 are found in sections 104(d) and 104(e) of the Act. 30
U.S.C. §§814(d), 814(e). Under section 104(d), an inspector's finding
that a violation is the result of "unwarrantable failure" to comply with
a mandatory standard and is "significant and substantial" leads to the
issuance of a section 104(d) citation, and subsequent findings of
unwarrantable failure may lead to a "chain" of withdrawal orders until
an inspection of the mine discloses no further violations based on
unwarrantable failure. 30 U.S.C. §§814(d)(l) & (2). Under section
l04(e) where an operator has been given written notice by the Secretary
that a pattern of "significant and substantial" violations exists,
further significant and substantial violations may lead to a similar
11
chain 11 of withdrawal orders. 30 U.S.C. §814(e).

1621

1980). The allegation of violation survives and if proven must be
subject to the assessment of a civil penalty. 30 U.S.C. §820(a); Tazco,
Inc., 3 FMSHRC 1895, 1896-98 (August 1981); See also Co-op Mining Co., 2
FMSHRC 3475, 3475-76 (December 1980). Similarly, since the alleged
violation survives, findings incidental to the violation survive as
well.
It is apparent from the language of section 104(d) that special
findings are made incident to the finding of violation. In addition to
the finding of violation, the inspector must find that "such violation"
is of a significant and substantial nature and that "such violation" is
caused by the operator's unwarrantable fail~re to comply with the cited
standard. 30 U.S.C. §814(d)(l) (emphasis added). As the Commission has
held, these findings fully describe the nature and the characteristics
of the violation. Consolidation Coal Co., 6 FMSHRC 189, 192 (February
1984).
The allegation of a violation contained in a citation or order is
an initial step in the enforcement of the Mine Act and of its mandatory
health and safety standards. The civil penalty assessed for the
violation must reflect the surrounding facts and correlate with the
nature of the violation through application of the statutory penalty
criteria. 30 U.S.C. §820(i) .. Accordingly, in assessing a penalty,
consideration of all incidents of a violation, including the special
findings, is appropriate. The Commission has stated:
The validity of the allegation of violation and of
any special findings made in connection with the
alleged violation, all bear upon the appropriate
penalty to be proposed by the Secretary prior to
adjudication and to be assessed by the Commission if
a violation is ultimately found ••..
Old Ben Coal Coo, 7 FMSHRC 205

207-08 (February 1985)(emphasis added),

In previous cases where the Secretary has charged an operator with
a violation in a citation issued pursuant to section 104(a) of the Mine
Act, 30 U.S.C. §814(a), and has made special findings in the citation,
the validity of the special finding at issue has been addressed in the
penalty proceedings albeit without specific discussion of the issue
addressed here. Cement Division, National Gypsum Company, 3 FMSHRC 822
(April 1981)~
See also Consolidation Coal Co., supra, 6 FMSHRC at 191192. The Commission also has recognized that the statutory penalty
criterion of negligence and the special finding of unwarrantable
failure, although not identical, are based frequently upon the same or
similar factual circumstances. Black Diamond Coal Co, 7 FMSHRC 1117,
1122 (August 1985). 11./ In addition, the Secretary 1 s regulatory
procedures governing his proposed assessment of civil penalties reflect

1JJ

In like manner, the 11 gravity 11 penalty criteria and a special
finding of "significant and substantial, 11 although not identical, are
based frequently upon the same or similar factual circumstances. 30
u.s.c. §§820(i), 814(d).

the interrelationship between special findings and the appropriate
penalty to be assessed. 30 C.F.R. §100.5(b) provides in part that 11 MSHA
may elect to waive the regular assessment formula (§ 100.3) or the
single assessment provision (§100.4) if the agency determines that
conditions surrounding the violation warrant special assessment}' The
regulation further provides that 11 (a]ccordingly, the following
categories [of violations] will be reviewed individually to determine
whether a special assessment is appropriate: ... (b) Unwarrantable
failure to comply with mandatory health and safety standards .... 11 30
C.F.R. §100.5(b). Because of the interdependent nature of special
findings and the penalty assessment provisions of the Mine Act, it is
appropriate to allow contest of such findings in a civil penalty
proceeding and not to preclude this challenge because the operator
failed to contest the validity of the order in which the findings are
contained within 30 days of its issuance.
Most mine operators who immediately challenge a citation or order
containing a special finding are concerned with the withdrawal
consequences of an order or its 11 chain 11 implications. Conversely, those
that elect to forego the immediate contest of an order that includes
special findings will not be concerned primarily with such consequences.
We expect that by delaying contest of an order and the special findings
contained therein until the civil penalty proceeding is instituted, an
operator's concern will be the deletion of the special findings and a
reduction of the civil penalty. Indeed, this is the relief requested in
the present case. We recognize that if a special finding is vacated by
a judge, in some instances it may be appropriate for the judge to order
modification or vacation of the order in which the special finding is
contained. Such a circumstance most likely would arise when such
modification or vacation would bear upon pending litigation involving a
"chain" of which the order was a part. See generally Consolidation Coal
Co., 4 FMSHRG 1791, 1793-95 (October 1982). This case does not require
discussion of all conceivable collateral effects that might arise from
the vacation or modification of an order containing special findings.
Resolution of such questions can await cases in which they are
specifically presented. 12/ Whatever the collateral effects may be,
they arise from the right to review provided to operators by section 105
of the Act.
We therefore conclude that the judge erred in failing to consider
Quinland 1 s challenge to the unwarrantable failure finding associated
with the violation of section 75.200.

12/
We note that the Secretary has the power to propose more quickly a
penalty for citations and orders and thus lessen the chances for ripple
effects that may result from vacation of the underlying order.

1623

IV.
The final issue raised by the operator is whether the judge erred
in considering copies of Quinland 1 s preshift examination reports
submitted to the judge by counsel for the Secretary following briefing
of the case. The judge requested summaries of the reports in order to
evaluate the veracity of Quinland 1 s preshift examiner with respect to
the frequency of his reports of hazardous conditions. The information
was relevant and material to the issue of credibility. In submitting
copies of the reports themselves, the Secretary's counsel failed to
follow literally the procedure ordered by the judge. However,
acceptance of the copies did not prejudice Quinland because they
confirmed the examiner's statement that he frequently noted hazardous
conditions during his preshift examinations. Tr. 205-06. Furthermore,
the judge did not rely on the reports in concluding that Quinland
violated section 75.303. Consequently, even if acceptance of the
reports was erroneous, the error was harmless.

1624

v.
For the foregoing reasons, we hold that substantial evidence
supports the findings of the judge that Quinland violated section 75.200
and section 75.303 and that the violation of section 75.200 was the
result of Quinland 1 s negligence. We further hold that the judge erred
in failing to address whether the violation of section 75.200 was the
result of Quinland 1 s unwarrantable failure. Finally, we hold that the
operator was not prejudiced by the judge's acceptance of copies of
preshift examination reports. Accordingly, the contested findings of
violation and negligence are affirmed, as is the civil penalty
assessment for the violation of section 75.303. The matter is remanded
to the judge to determine whether the violation of section 75.200 was
the result of Quinland 1 s unwarrantable failure to comply with that
mandatory safety standard and for such further proceedings as are then
appropriate.

~~

. ~t'~AA~
Richard V. Backley,

C~r ~

b1u_,q,
~~0
A.

~oyce

Doyle, Commissio~

ames A. Lastowka, Commissioner

~~~
L. Clair Nelson, Commissioner

1625

Distribution
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Robert D. Cline, Jr., Esq.
Shaffer & Shaffer
330 State Street
Madison, West Virginia 25130
William Stover, Esq.
41 Eagles Road
Beckley, West Virginia

25801

Administrative Law Judge William Fauver
Federal Mine Safety & Health Review CommisE?ion
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1626

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

September 30, 1987

ODELL MAGGARD

v.

Docket No. KENT 86-1-D

CHANEY CREEK COAL CORPORATION
and
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of ODELL MAGGARD

v.

Docket No. KENT 86-51-D

DOLLAR BRANCH COAL CORPORATION
and CHANEY CREEK COAL COMPANY

BEFORE:

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

BY THE COMMISSION:
On August 25, 1987, the Commission issued its decision in this
matter. On September 15, 1987, the Commission received from counsel for
respondents a Motion for Reconsideration and a Motion to Amend Petition
for Discretionary Review. Oppositions to both motions have been
received from complainant Odell Maggard and from the Secretary of Labor.
The operators request the Commission to reconsider its denial of their
motion seeking dismissal o.f Dollar Branch Coal Corporation
Branch") as a party on the asserted grounds that Dollar Branch
had no direct employment relationship with Maggard. Upon consideration
of the motions and the oppositions, the motions are denied.
We previously ruled that we were barred as a matter of law by the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seg.
(1982), from considering this issue because it was not included in the
operators' petition for discretionary review. Odell Maggard v. Chaney
Creek Coal Corporation, etc., 9 FMSHRC ~-'Nos. KENT 86-1, etc., slip
op. at 2 n. 2 (August 25, 1987). We adhere to that ruling. We note
that the operators also failed to raise this issue before the Connnission' s administrative iaw judge, and we conclude that counsel for the

1627

operators has failed to show why the facts asserted by Dollar Branch
relating to its involvement in this case cculd not have been ascertained
and acted upon in a timely manner.

Richard V. Backley,

.·~

Commissioner

1628

Distribution
Thomas C. Marks, Esq.
Miller, Griffin & Marks
Suite 700, Security Trust Bldg.
Lexington, Kentucky 40507
Tony Oppegard, Esq.
Appalachian Research & Defense
Fund of Kentucky, Inc.
P.O. Box 360
Hazard, Kentucky 41701
Linda Leasure, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

1629

1630

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

December 19, 1986
GARRY GOFF
Docket No. LAKE 84-86-D

v.
YOUGHIOGHENY & OHIO COAJ, COMPANY

BEFORE:

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

BY THE COMMISSION:
This proceeding concerns a discrimination complaint filed by
Garry Goff pursuant to the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (1982) (the "Act"). Following a previous
determination by--rhe Commission that Goff's complaint stated a cause
of action under section 105(c)(l) of the Act, the matter was remanded
to Commission Administrative Law Judge Melick. The purpose of the
remand was to determine whether Goff was discriminatorily discharged by
the Youghiogheny and Ohio Coal Company ("Y&O") because he was "the subject
of medical evaluation and potential transfer" under the standards set
forth in 30 C.F.R. Part 90. 1/ 7 FMSHRC 1776 (November 1985). On remand,
the judge examined that issue and found that Goff was not discharged in
violation of section 105(c) (I). 2/ 8 FMSHRC 741 (May 1986) (ALJ).
The
Commission granted Goff's petition for discretionary review. For the
reasons that follow, we affirm.
}:_/
Under 30 C.F.R. Part 90, a miner determined by the Secretary of
Health and Human Services to have evidence of the development of pneumoconiosis is given the opportunity to work without loss of pay in an area
of the mine where the average concentration of respirable dust in the
mine atmosphere during each shift to which that miner is exposed is
continuously maintained at or below 1.0 milligrams per cubic meter of
air ( 11 mg/m 3 n).
2/

Section lOS(c)(l) of the Act provides in part as follows:
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 .•. in any coal or other mine .•• because such miner ..•
is the subject of medical evaluations and potential transfer under
a standard published pursuant to section [lOlJ of this [Act] •..•

30 U.S.C. § 815(c)(l).

1860

(Vol. 8, No. 12)

reprint

This proceeding began when Goff filed a complaint of discrimination
with the Department of Labor's Mine Safety and Health Administration
("MSHA"). Following investigation of the complaint, MSHA determined
that a violation of section 105(c)(l) of the Act had not occurred. Goff
then filed a complaint in his own behalf with this independent Commission
alleging that his discharge violated the Act. Y&O moved to dismiss the
complaint for failure to state a cause of action. The administrative
law judge concluded that Goff's complaint was based on an allegation
that Goff was discriminated against because he suffers from Rlack Lung
(pneumoconiosis) and that such a complaint could be resolved only under
section 428 of the Black Lung Benefits Act, 30 U.S.C. § 901 et seq.
(1982)("BLBA"). Therefore, the judge granted the motion to dismiss.
6 FMSHRC 2055 (August 1984). On review, we reversed the judge's decision,
holding that a miner may state a cause of action under section lOS(c)(l)
of the Mine Act by alleging discrimination based upon the miner being
"the subject of medical evaluations and potential transfer" under Part
90 and remanded the proceeding to the judge to determine whether Goff
had been discharged unlawfully.
Our task on review is to determine whether the judge properly
concluded that Goff was not discriminatorily discharged in violation of
section lOS(c)(l) of the Act. A number of collateral issues were raised
by the complainant which lie outside the scope of our review and which
we do not address; for example, whether Goff in fact had pneumoconiosis,
which of the various doctors seen by Goff correctly diagnosed his medical
condition, and whether Y&O's leave policies were reasonable. Further,
our review in no way addresses any separate remedy Goff may be seeking
under section 428 of the BLBA. 30 U.S.C. § 938. 3/
I.

Goff worked as a supervisory foreman for Y&O from September 1976
until January 20, 1984. In August 1982, while employed at Y&O's Allison
Mine, Goff's doctor diagnosed him as having pneumoconiosis and Goff
thereafter was assigned to work primarily outside the mine" In October
1983, Goff again was diagnosed by his doctor as having pneumoconiosis.
3/
The BLBA is administered by the Employment Standards Administration
("ESA") of the Department of Labor" The Department of Labor is charged
with the duty under both the Mine Act and the ELBA to investigate pneumoconiosis-related discrimination complaints. Accordingly, the Department's
MSHA and its ESA have entered into a Memorandum of Understanding ("MOU")
to coordinate their investigations and to clarify their jurisdictio~1 and
procedures. 44 Fed. Rego 75952 (Dec. 21, 1979)"
Under the MOU, ESA makes the determination as to whether a violation
of section 428 of the ELBA has occurred and MSHA makes a determinatton
whether a violation of section lOS(c) of the Mine Act has occurred. If
the aggrieved person proceeds with complaints under both sections, MSHA
proceeds first with the section 105(c) complaint and ESA may then proceed
with the section 428 complaint. The MOU reflects that the two sections
may provide different remedies.

1861 (reprint)

In January 1984 Y&O closed the Allison Mine and Goff was transferred
to an underground job as a labor foreman at Y&O's Nelms Mine, effective
January 9, 1984. As a labor foreman Goff would work primarily in the
less dusty outby areas but would work near or at the face when necessary.
Upon reporting to work on January 9, 1984, Goff gave Charles Wurschum,
the Nelms mine manager, copies of slips from his doctor stating that he
had pneumoconiosis and should not work underground. On January 12,
1984, •}off called in sick to John Ronevich, his immediate supervisor.
Goff went to his doctor and was diagnosed as having bronchitis and
advised not to return to work for two weeks or until he recovered.
After Goff relayed this advice to Ronevich, he was requested by Y&O to
undergo a medical examination at the Wheeling Park Hospital. The next
day Goff reported for that examination. He was given a battery of
medical tests, had chest x-rays taken, and was examined by a certified
"B" reader of chest x-rays. 4/ The results of his examination were not
immediately available. l._/
On January 14, 1984, the day after his medical examination at the
Wheeling Park Hospital, Goff mailed a Part 90 application and chest
x-rays to MSHA. These x-rays had been taken at a local clinic in October
1983. Goff's application requested a determination by MSHA of his
eligibility for participation in the Part 90 transfer program.
On January 16, 1984, Goff wrote a letter to Donald Weber, Y&O's
director of personnel, calling attention to his chest x-rays of August
1982 and October 1983 and stating that he was unable to perform his
duties as a labor foreman due to pneumoconiosis and that he should not
be working underground in the dust. Goff further stated that until he
had a job out of the dust, he would be off work under doctor's advice,
but was willing to return to work with his doctor's release. The letter
made no reference to Part 90 status. On January 19, 1984, Goff met with
Weber and Wurschum and was advised that review of the medical report
from Wheeling Park Hospital indicated that there was nothing preventing
Goff from working underground as a supervisor, and that if he did not

4/
A 11 B11 reader is a person possessing the highest qualifications to
read chest x-rays for evidence of pneumoconiosis by the National Institute
of Occupational Safety and Health,
5
Goff states that while awaiting his examination, he was asked by a
nurse whether he wanted to complete a Part 90 application and have the
application and his x-rays sent to MSHA fo~ a Part 90 status determination,
Goff states that he completed the application but that the application
and the Wheeling Park Hospital x-rays were not sent to MSHA. Tr.
196-97, 200, On review, Goff alleges that Y&O prevented the mailing of
the application and the x-rays. There is, however, no evidence in the
record which supports even an'inference to support this allegation.

1862 (reprint)

return to work the next day, he would be discharged. ~/ Goff testified
that he told Weber and Wurschum that he would be unable to work until
his doctor authorized his return. Goff did not report to work on January 20,
1984. On January 21, he received a letter from Y&O dated the previous
day informing him that he was discharged for failing to report to work.
The letter stated that Goff's "allegation of not being able to work has
not been documented by medical certification" and noted that the results
of Goff's medical examination on January 13 did not intlicate any reason
that would prevent Goff from working underground. On January 30, 1984,
Goff took a medical release dated January 24, 1984, to Weber, who indicated
that Y&O was not hiring.
On July 2, 1984, Goff received a letter from HSHA stating that
based on the chest x-ray reports he had sent to MSHA on January 14,
pneumoconiosis was indicated and he was eligible under Part 90 to work
in an area of the mine with an average concentration of respirable dust
at or below 1.0 mg/m 3 of air. On August 8, 1984, however, Goff was further
advised by MSHA that because he no longer was employed at an unrlerground
coal mine, ~art 90 status was not applicable to him.

II.
In concluding that Y&O did not discharge Goff unlawfully, the judge
noted that for Goff to establish a violation of section lOS(c)(l}, Goff
had to prove that he engaged in protected activity and that his discharge
was motivated in any part by the protected activity. 8 FMSHRC at 743.
(Citing to Secretary on behalf of Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786, 2799 (October 1980), rev'd on other grounds sub. nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir, 1981).)
With respect to the motivational issue, the judge indicated that there
was no evidence that any Y&O personnel knew, prior to Goff's discharge,
that he had filed a Part 90 application. 8 FMSHRC at 743-44. In addition,
the judge concluded that Y&O officials could reasonably have given
greater weight to the medical evidence they obtained from the Wheeling
Park Hospital medical evaluation of Goff, which indicated that Goff did
not have pneumoconiosis and was capable of working. 8 FHSHRC at 744.

6/

Dr, Elliott stated in his medical report:
Chest x-ray was within normal limits,
coniosis was seen,

No evidence of pneumo-

There was no evidence of any significant respiratory or
pulmonary disease physiologically.
I find no medical reason at this time that would prevent ~r.
Goff from being able to work underground as a supervisor.
8 FMSHRC at 742-43.

1863 (reprint)

Finally, the judge found that even if Y&O had known that Goff
applied for Part 90 status, Y&O would not have been motivated to discharge
him on that basis because Part 90 status would not have affected Goff's
work assignment as a labor foreman. 8 FMSHRC at 744. Under Part 90, a
qualifying miner is entitled only to transfer to a dust reduced area where
concentrations of respirable dust are at or below 1.0 mg/m 3 of air,
and the judge noted that Wurschum believed the dust concentrations in
the entire Nelms Mine were less than 1.0 mg/m 3 of air. The judge further
noted that in 1984 the average respirable dust concentration in the
outby areas of the mine, where Goff ordinarily would have worked, was
0.55 mg/m 3 of air and that even near the face the average concentration
was less than 1. 0 mg/m 3 of air. 8 FMSHRC at 244: The judge concluded
that Goff had "failed in his burden of proving that Y&O was motivated in
any part in discharging him because he was 'the subject of medical
evaluation and potential transfer' under Part 90." 8 FMSHRC at 745.
III.

For the reasons that follow, we affirm the judge's conclusion that
Goff's discharge did not violate the Act. A complaining miner establishes
a prima facie case of prohibited discrimination under the Mine Act by
proving that he engaged in protected activity and that the adverse
action complained of was motivated in any part by that activity. Pasula,
2 FMSHRC at 2797-2800; Secretary on behalf of Robinette v. United Castle
Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The operator may rebut the
prima facie case by showing either that no protected activity occurred
or that the adverse action was not motivated in any part by protected
activity. Robinette, 3 FMSHRC at 818 n. 20. See also Donovan v.
Stafford Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v.
FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)(specifically approving the
Commission's Pasula-Robinette test).
The medical examinations and procedures to which Goff was subjected
in this case were intended to determine whether he suffered from pneumoconiosis, an initial step in obtaining Part 90 status, and as such, were
protected activities. Further, Goff engaged in protected activity in
applying to MSHA for a determination of his eligibility for Part 90
status. Like the medical evaluations, the application process is a
necessary preliminary step and comes within the statutory protection
afforded miners who are the "subject of medical evaluations and potential
transfer" under Part 90.
We conclude, however, that although these events constituted protected
activities, Goff did not establish that Y&O was motivated i'l any part by
knowledge of such protected activities.
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(November1981),
rev'd on other grounds sub. nom. Donovan v. Phelps Dodge Corp., 709

1864 (reprint)

F.2d 51 (D.C. Cir. 1983); Sammons v. Mine Services Co., 6 FMSHRC 1391,
1398-99 (June 1984). The present record contains no direct evidence
that Y&O was illegally motivated, nor does it support a reasonable
inference of discriminatory intent.
In examining the record for instances in which discriminatory
intent could be inferred, we note that, with respect to Goff's medical
evaluations of August 1982 and October 1983, Y&O did not discharge Goff
because of these evaluations. To the contrary, the record indicates
that Y&O accommodated Goff by assigning him work primarily on the surface.
Not until the Allison Mine closed in early January 1984, approximately a
year and a half after Goff's first diagnosis of pneumoconiosis, was he
transferred to underground work. 21
Similarly, no inference of discriminatory intent can be inferred
from Y&O's response to Goff's medical evaluation of January 1984.
Substantial evidence supports the judge's conclusion that Y&O reasonably
relied upon Wheeling Park Hospital's January 1984 evaluation of Goff
which, based upon specific medical tests and x-rays, indicated that Goff
was fit to return to work.
With respect to Goff's Part 90 application, we affirm the judge's
finding that Y&O did not know prior to his discharge that Goff had filed
a Part 90 application. There is no evidence that Goff told supervisory
personnel at Y&O that he had applied or was going to apply for Part 90
status. Goff states that he told mine manager Wurschum on January 1984,
that he wanted to take one or two days off to "get x-rays taken" to
settle the situation concerning his pneumoconiosis. Goff Dep. 58, Tr.
188. According to Wurschum, Goff asked only whether he was going to be
allowed to take some days off and Goff said nothing about having x-rays
taken or applying for Part 90 status. Tr. 401. We note that Goff
actually filed his application on January 14, 1984. After that date
Goff easily could have notified Y&O personnel that he had filed for Part
90 status (for example: in his January 16, 1984, letter to Weber or at
the January 19, 1984, meeting). Goff did not do so, We hold that the
record therefore supports the judge's finding that there is no irevidence
that any Y&O personnel knew, prior to his discharge, that [Goff] had
filed a Part 90 application. 11 8 FMSHRC at 744,

7/ Goff also argues that Y&O interfered with his section 105(c)(l)
rights by failing to report his illness as required by 30 C.F.R, Part 50
when Y&O first became aware that he had been diagnosed with pneumoconiosis.
We do not agree. Under Part 50, an operator is required to report
illness, including pneumoconiosis, to the appropriate MSHA District
Office and to the MSHA analysis center in Denver. 30 C.F.R. §§ 50.20
and 50.20-6. Failure to report as required may be a violation of Part
50, but it does not constitute discrimination. The purpose of reporting
a miner's illness under Part 50 is to gather occupational illness statistics,
not to effectuate the rights of medical evaluation and transfer inherent
in Part 90 and protected by section lOS(c)(l).

1865 (reprint)

Moreover, substantial evidence supports the judge's conclusion that
even if Y&O had known that Goff applied for Part 90 status, it is not
reasonable to believe it would have been motivated to discharge him on
that basis because Part 90 status would not have affected Goff's work
assignment. The Nelms Mine manager testified that during 1984 the
average concentration of respirable dust in areas outby the faces was
0.55 mg/ms of air, and the average concentration in inby areas was less
than 1.0 mg/ms of air. That testimony was not disputed. 8/ Nevertheless,
Goff stated in his letter to Weber that on the advice of his doctor, he
would be off work until he had a dust free job. Neither the Act nor Part
90 gives a miner with evidence of the development of pneumoconiosis the
right to work in a mining environment that is totally free of respirable
dust. Rather, section 203(b)(2) of the Act, 30 U.S.C. § 843(b)(2), and
30 C.F.R § 90.3(a) give a miner with evidence of the development of
pneumoconiosis the right to exercise an option to transfer to an area of
the mine with an average respirable dust concentration at or below 1.0
mg/ms of air, not to cease work altogether.
There is no proof in this record that Goff would have encountered
excessive and impermissible respirable dust concentrations in his underground assignment. As previously indicated, there is persuasive evidence
that during 1984 the average concentration of respirable dust in areas
outby the faces was 0.55 mg/ms of air and the average concentration in
inby areas was less than 1.0 mg/ms of air.
By refusing to report to work until he was assigned a dust-free
job, Goff acted beyond the purview of section 203 of the Act and 30
C.F.R. Part 90. As such, his work refusal was not protected by the
statute.

8/
Although the mine manager 1 s testimony was based on the results of
respirable dust samples taken pursuant to 30 C.F.R. Part 70, the results
are indicative of the respirable dust concentrations that Goff could
expect to encounter. They reflect average concentrations of respirable
dust in areas where Goff ordinarily would be expected to work. Tr. 355-56.

1866 (reprint)

We find that Goff did not establish that the protected activity,
being "the subject of medical evaluation and potential transfer", in any
way motivated Y&O to discharge him. Rather, Y&O discharged Goff because
he refused to report for work as ordered. We therefore affirm the
judge's dismissal of Goff's complaint.

Richard V. Backley, Commission
/l.

~

A1

//'

//!'--<-~ (/·,, d~.Cg

J~

A: Doyle, CommissiOr

Distribution
Garry Goff
57920 Rocky Fork Road
Jacobsburg, Ohio 43933
Gerald P. Duff, Esq.
Hanlon, Duff & Paleudis Co., LPA
46770 National Road West
P.O. Box 77
St. Clairsville, Ohio 43950
Administrative Law Judge Gary Melick
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1867 (reprint)

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE Of ADMINISTRATIVE LAW JUDGES
333 W, COLFAX AVENUE, sum -'00
DENVER. COLORADO 80204

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

SEP 8 1987

DISCRIMINATION PROCEEDING
Docket No. WEST 85-131-DM
MD 85-11
Dee Gold Mine

v.
DEE GOLD MINING COMPANY,
Respondent
DECISION
Appearances:

Marshall P. Salzman, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco,
California,
for Complainant;
Jay W. Luther, Esq., Chickering & Gregory, San
Francisco, California,
for Respondent.

Before:

Judge Lasher

This proceeding involves a discrimination complaint brought
by the Secretary of Labor on behalf of George A. Jones (herein
6
' Complainant") "
The Secretary's complaint, as amended, alleges
that Complainant was discharged (laid off) for engaging in protected safety activities in violation of Section 105(c) of the
Feder
_Mine Safety and Health Act of 1977v 30 UoSoC. § 815(c)
( 19 8 2) o.:/

The Secretary contends that Complainant Jones, a maintenance
employee in Respondent 1 s ball mill at the time of his dischargef
was terminated because of protected safety activities occurring
primarily in the last month of his employment. Respondent
contends that as a result of a "Feasibility Capital Cost Study 11
(herein referred to as the Kilburn Report) a reduction-in-force
(herein RIF and layoff) was called for and planned, and Complainant, because of inferior work performance ("slow workman
ship", "productivity" and other problems) was one of two
1/

The hearing was held during a period of four days, October
For each day of hearing there is a
separate transcript beginning with page one. Accordingly,
transcript citations will be prefac~d wiLh »1 11 , "II", "III", and
"IV", respectively, in this manner "I-T __ ", "II-T. __ ", etc.

21, 22, 23, and 24, 1986.

1631

employees who were properly laid off in the RIF to bring the mill
maintenance crew down from a complement of 6 employees to 4 as
called for by the Kilburn Report (III-T. 25-32)0
Untimely Filing of the Secretary's Complaint. In raising this
threshold issue, Respondent contends that there was "a delay of 5
months beyond the statutory maximum. 11
A chronology of most pertinent events was the subject of a
stipulation between the parties (Court F.x. l; I-T. 42-45). Based
thereon and other evidence the following sequence is found to
have occurred.
October 11, 1984

Complainant was terminated (I-T. 45)

October 12F 1984

Complainant filed "an informal complaint"
with MSHAo Although not critical to this
issue, I find that this filing complies
with the 60 day filing requirement for
individual miners contained in section
105(c) of the Act, even though such complaint is not filed on a particular
standard form provided by the Secretary
of Labor.

November 13, 1984

Complainant filed a "formal complaint"
with MSHA on an MSHA form.

December Su 1984

The Secretary (MSHA) commenced its investigation of the complaint.

April 24, 1985

The Secretary's written determination
that a violation occurred was issued.

2., 1985

The Secretaryus Complaint was filed- according to the date stamp thereof in the
official Commission file folder" The
parties' stipulation that such was filed
on or about June 25, 1985, is rejected
in view of the more precise information
reflected in the file"

It is clear that Complainant Jones was prompt with the
filing of his complaint with the Secretaryo Respondent 1 s bone of
contention is the Secretary's delayo In Secretary Vo 4-A Coal
Companyv Incov 8 FMSHRC 905 (1986)v the Commission delineated the
various obligations of the Secretary in processing discrimination
complaints~

~The Mine Act requires the Secretary to proceed with
expedition in investigating and prosecuting a miner's
discrimination complaint. The Secretary is required to act
within the following time frames: (1) The investigation of a
miner's complaint "shall commence within 15 days" of receipt
of the miner's complaint (30 u.s.c. § 815(c)(2)); (2) the

1632

Secretary "shall notify" the miner, in writing, of his
determination as to whether a violation of section 105(c)(l)
of the Mine Act has occurred "[w)ithin 90 days" of receipt
of the miner's complaint (30 u.s.c. § 815(c)(3)); and (3)
if the Secretary determines that there has been a violation
of the Act, "he shall immediately file a complaint with the
Commission." 30 U.S.C. § 815(c)(2). (Emphasis added
throughout.) Finally, section 105(c){3) of the Act
specifically states, "Proceedings under this section shall
be expedited by the Secretary and _the Commission." 30 u.s.c.
§ 815(c)(3).
While the language of section 105(c) leaves no doubt that
Congress intended these directives to be followed by the
Secretary, the pertinent legislative history nevertheless
indicates that these time frames are not jurisdictional

xxx

xxx

xxx

"

xxx

Related passages of legislative history make equally clear,
however, that Congress was well aware of the due process
problems that may be caused by the prosecution of stale
claims.
See Legis. Hist. at 624 (discussion of 60-day time
limit for the filing of miner's discrimination complaint
with the Secretary). The fair hearing process envisioned by
the Mine Act does not allow us to ignore serious delay by
the Secretary in filing a discrimination complaint if such
delay prejudicially deprives a respondent of a meaningful
opportunity to defend against the claim.
Accordingly, we hold that the Secretary is to make his
determination of whether a violation occurred within 90 days
of the filing of the miner's complaint and is to file his
complaint on the miner 1 s behalf with the Commission
"immediately'' thereafter -- i.e., within 30 days of his
determination that a violati'Oi10f section 105(c)(l) occurred"
If the Secretaryas complaint is late-filed, it is subject to
dismissal if the operator demonstrates material legal
prejudice attributable to the delay.
"Applying these principles to the present record, there is
no question that the Secretary seriously delayed in filing
the complaint. Nevertheless, the record before the judge
did not establish that the Secretary's delay prejudiced 4-A.
In the absence of this requisite foundation, the judge erred
in granting 4-A's motion to dismiss.n
Respondent 1 s basis for dismissal of the complaint is set
forth at pages 38 and 39 of its post-hearing brief:
"In a great many cases, a delay of 5 months beyond the
statutory maximum would not cause prejudice. This case, however,
is different because of the critical nature of precise times.
Thus, among the facts that have been helpful to Dee Gold's
defense have been the time of the decision to layoff Mr. Jones1

1633

the times at which certain incidents, particularly the hydrostroke feeder and AR incidents were committed by Mr. Jones in
relation to the time that Mr. Nameth was placed in charge of mill
maintenance; the time at which it was decided that layoffs would
occur at all; the time at which the ball mill was in the process
of being repaired; (to a minor extent) the time at which Mr.
Nameth announced at the meeting of October 9 that layoffs were to
occur: and the dates upon which the events in the Jensen
memorandum took place. These are likely to be contested in one
fashion or another in the Government's brief, due to the
occasionally ambiguous and uncertain testimony of various
witnesses on the subject of precise dates, or timing. Where all
the pertinent dates in a case occur in a relatively short period,
it is much easier for prejudice to occur, and Respondent would
submit that it has occurred in this case. Had this Complaint
been brought 4 to 6 months earlier, recollections could have been
more quickly canvassed, and a better record prepared."
It is concluded that Respondent has not established that the
Secretary's delay prejudicially deprived it of a meaningful
opportunity to defend itself in this matter. There is no
allegation of any specific prejudice it sustained in pretrial
preparation or in the trial of this matter. The general
allegation that the memory of witnesses may have been impaired by
the delay is insufficient to meet the burden of establishing a
material legal prejudice; there is no articulation of the process
by which Respondent was prejudiced.
It is also noted that the
delay of approximately 5 1/2 months here is significantly less
that that - 2 years - involved in 4-A Coal Company, Inc., supra.
There being no basis in argument or in the record to conclude
that Respondent was materially prejudiced, its contention that
the complaint should be dismissed for untimely filing is rejected.
It should finally be mentioned that (1) a considerable portion of
the time which elapsed between the allegedly discriminatory act
and trial was accounted for by the extensive pre-trial procedures
and settlement negotiations engaged in by the parties, and (2)
Respondentv as
11 be shown withinu on the day it laid off
Complainant was put on notice of possible litigation and began
taking steps to prepare therefor (See Exs. J-2 and J-3)0
General Matters
Respondentu Dee Gold Mining Companyu was at all material
times a Nevada partnership engaged in gold and silver mining
(III-To

61)0

Complainantr age 34 at the time of hearing, commenced
employment with Respondent on March 26, 1984 (Ex. R-2), as a mill
maintenance mechanic (I-T. 69, 73, 75}. His immediate supervisor
was Allen 11 Al" Jensen, mi'll maintenance foreman ( I-T. 70) • Some
of Cornplainant 1 s basic duties were repair, fabrication, welding,
pipefitting, crusher repair and pump repair (I-T. 77, 82).
Various of these duties were performed on or about mills near the
mine which separated the gold ore from waste material.

1634

Complainant was laid off at the end of his day shift on the
afternoon of Friday October 11, 1984, the last day of his work
week (I-T. 105, 106; III-T. 114-116, 156). Thus, the total term
of Complainant's employment with Respondent was less than seven
months.
Sometime in May or June of 1984 Complainant received a
written evaluation from Al Jensen rating him as excellent in
every category (I-T. 80-81).2/ He received no other ratings
prior to his layoff.
While Complainant's work performance was commendable in the
beginning, it thereafter deteriorated.
A decline in his speed
and attitude was noted by his immediate supervisor, Jensen,
following management's refusal to grant the mill maintenance
crew's request for a raise CIII-T. 132-134).
With respect to Complainant's attitude, Jensen testified
that: "he would throw things, get a little bit angry about not
having something to work with." Jensen also noted that
Complainant complained about changes in the work schedule about
this time, since he was building a house and that his hours began
to drop.
The records on overtime show that the high point on
Complainant's overtime occurred in July, with 40 hours of
overtime, and dropped to half that in both August and September.
(See Exhibit R-2.)
By contrast, during the same period Ingle
worked 66 hours of overtime in July, 56 hours of overtime in
August and 71 hours of overtime in September.
Mr. Jensen, following Complainant's termination, and in
accordance with usual procedure~, filled out a Dee Gold standard
Payroll Change Notice Form, Joint Exhibit 1, which reflected his
views on Complainant's ability as of the date that he filled it
oute October 16v 19840 Complainant's 11 conduct 11 and "production"
were listed as u'poor ~" while his ua initiative 11 was listed as only
"fair." There were no "excellents" in the rating.
In the summer of 1984, the mill maintenance crew 3/
consisted of Cornplainantu Wayne Overholser, Joseph P. Timko, Dick
Eisenbarthe Mike Ingle and Mitch Geyer.
All but Geyer were "mill
maintenance mechanics". The sixth mill maintenance employeev
mechanic Wayne Overholserv worked for only part of the summer of
1984v before he transferred to the truck shop around September 1 5
1984 (II-T. 2lv 88u 122-124v 136-138u III-T. 15, 42-43, 66).
Another employeev Kenneth Kohlesu was promoted to and began
working in mill maintenance, on or about September 1, 1984 (Ex.
~/

Respondent contends that Complainant's work performance
deteriorated after this time.
3/ The record with respect to the number and composition of the
crew was confused, possibly because of different employees coming
in and out of the crew.

1635

J-8) before the layoffs CII-T. 110, 152; III-T. 44, 65,
16 3 -16 7 ) • ~/
Dick Eisenbarth and Joseph Timko were hired subsequent to
Complainant- Timko in June and Eisenbarth in July 1984 CI-T. 82).
Ingles was hired before Complainant - on October 26, 1983 CII-T.
79); Geyer was hired before Complainant also - on February 6,
1984, but as a "helper" or laborer (II-T. 122); Geyer became a
mill maintenance employee in August 1984 CII-T. 125). Timko
commenced his employment with Respondent on June 11, 1984. Mr.
Timko was elected mill maintenance safety representative
(spokesman) sometime during the period July-September 1984 CI-T.
124-126; II-T. 141). Certain of Respondent's management was
aware he held this position (I-T. 125-126). Mr. Timko was laid
off on October 9, 1984 (III-T. 109) shortly after a meeting on
the same date- which was called to discuss complaints (including
safety complaints) - was conducted with the mill maintenance crew
by mill superintendent Steve Nameth. s; Mr. Timko, like
Complainant, testified that he understood when he was hired that
it was to be a permanent position CI-T. 122). Crew member Mike
Ingle who was favored over Complainant and Timko in the RIF,
however, was told when he was hired that there might be a layoff
"after things were going" (II-T. 99) and that Jensen told him he
was "afraid to hire too many people because of the layoffs" CIIT. 99) .
Protected Activities
At some indeterminate time prior to the start-up of the mill
in September 1984, Complainant registered a verbal complaint to
his immediate foreman, Al Jensen, concerning not having a grinding shield. Jensen replied that he would "put some on order"
(I-T. 78)o
Complainant also complained (1) to Larry Turner, Safety
Directorv and Al Jensenu that he needed a respirator since he was
working with cyanide acid and gasses (I-T. 79, 86-87> on or about
September 25, 1984 (I-T. 87), and (2) about an acid plate (I-T.
88-89)0
Complainant engaged in various activities which Respondent
was aware of in connection with his dissatisfaction with

!:./

It thus appears that during the summer of 1984 and up to the
layoffs in October 1984, the mill maintenance crew by and large
did number six employees¢ This supports Respondent 1 s position
that a layoff of 2 employees was called for to effect compliance
with the Kilburn Report.
~/
The October 9 meeting was a significant event in the context
of this proceeding and is discussed more fully within.

1636

Respondent's so-called "lockout" procedure at the ball mill.
complainant initially appraised this problem as follows:
"A The first time that I was informed that they had an
emergency and Al Jensen said you've got to go into the mill
and fix a liner. I said fine, where do you want me to put
my lock on the motor? Al said well, we can't lock the motor
out and I said why is that. He said they don't want to lock
out the motor and you can lock out the air clutch but I
didn't like the way to find the ball mill to lock out the
air clutch as opposed to the locking out the motors.
If the
chair for a person who is working in the mill and air motor
is still running there is a possibility the clutch could
engage by itself, by outside means and the mill would turn.
Q.

And what would happen if anyone was in the mill?

A.

The person would be dead.

Q.

What would kill him?

A. Fifty or sixty tons of steel balls that would crush him
to death.
Q. What did Al Jensen say when you told him you thought the
mill should be locked out?

A.

He said he had to do what he was told.

Q.

Who did he say told him that?

A.

Name th."
( I-T. 89-90).

Thereafterv on or about September 25, 1984v Complainant
engaged in a conversation with Wayne Dillon, a safety
representative of the State of Nevada who had been conducting a
safety class at the mine, and Larry Turner, Respondent 1 s Safety
Director, in which Complainant asked Dillon if Respondent's
mechanical lockout procedure was in compliance with State or MSHA
regulationso Complainant 0 s account of this conversation follows~
~Q.

And what did Mr. Dillon say?

A.

He said absolutely not.

Q.

What did Mr. Turner say?

A.

Turner didn't say anything.

Q. Did you make any complaints to Mr. Turner about the
lock out procedure?
A.
I told Mr. Turner Mr. Dillon is right here standing
beside you and he said the mechanical lock out or air clutch
lock out is not acceptable.
1637

Q.

What did Mr. Turner say in response to that?

A.

He was dumbfounded; didn't say anything."
(I-T. 91; II-T. 24-29).

Prior to October 1, 1984, Mr. Turner told Complainant that
Bob Morley, an MSHA investigator said it was "okay for Dee Gold
to have a mechanical lock out on the ball mill's air clutch."
(I-T. 92). After this, on October 1, Complainant went to MSHA's
Reno, Nevada office and discussed the matter with Joe Frazier,
supervisor of mine inspectors, who Complainant understood was
Morley's "boss." Frazier, according to Complainant, stated:
"He said it was unacceptable to MSHA to have a mechanical
lock out only the air clutch. He said it was a violation
of standards& He read me the quotation in the regulation
that all energized equipment will be de-energized before
any worker will work on that equipment."
(I-T. 93; See also II-T. 30)
On Wednesday morning, October 3, 1984, Complainant advised
Mr. Turner that" ••• a mechanical lock out was not acceptable to
the Reno office." Mr. Turner indicated that he would look into
it when he got the time (I-T. 94, II-T. 32). Both on October 4
and October 5 Complainant asked Turner if he had called Reno and
Turner hadn't CII-T. 33). Complainant advised Joe Timko, the
minersu elected mill maintenance safety representative, that he
would not go into the ball mill under existing conditions (I-T.
95-96). He also confirmed to Al Jensen that he would not enter
the ball mill CI-T. 97). This constitutes a refusal to work
because of an asserted unsafe condition.
Complainant gave this account of a final safety complaint
which occurred on the morning of October llu 1984, the afternoon
of which he was laid off:
'Qo
Between the time of the Timko lay off and your lay off
did you make any safety complaints?
0

Ao

Yes u I dido

Qc

When did you make any complaints?

Ac I think I believe it was Thursday morningv the day I
was fired"
Qo

When were you fired?

Ao

I was fired that afternoon.

Q.

What was the nature of your complaint?

A.
First thing in the morning Al Jensen told me to move my
welding table approximately ten feet to one side.
I
objected immediately.

1638

Q.

What was the basis for your objection?

A. Well it was a collection area. The floor had one foot
rise of concrete and would collect water and slurry.
I
would have to be on the sump pump side of slurry side which
was a danger of electrocution was always very dangerous.
Q.

Who did you say you made a complaint too?

A. Al Jensen. He said this was what Steve Nameth wanted
and this is what he is going to get.

Q.

Who informed you of your lay off on the eleventh?

A.

No one actually informed me of my lay off.

Q.

How did you learn about it?

A.

Al Jensen had me do an emergency pipefitting job. He
set a pipefitting job where I had to put a water line into
the feed chute of the rod mill. When I was all done with
this job I went back to put time on my time card and my time
card was not in the slot.
I went to Al Jensen and said,
well, where is my time card.
I asked and he said I could
tell you in an hour and I asked him if I was laid off.
Q.

What did you then?

A.

I

Q.

What did you say to him?

A.

Said I am the least productive employee?

Q"

What did you say?

went into Steve Nameth's office.

He said I am.

I said I am going to fight it even with my record and
evaluations I have in my record I am still not the least
productive employee.

A.

Q.

Did you say on what basis?

A..

No. I

just said I am going to fight it." 6/
(I-T. 106-107)
-

It is thus clear in the record and found here that
Complainant engaged in various safety activities which in the
abstract were of a nature sufficient to invoke the protection of
the ~ct.
Respondent for the most part concedes, and the record

6/ It is of some significance in this conversation Complainant
did not specifically protest that hf felt he was being laid-off
due to his safety activities.

16 39

in any event establishes, that Respondent's management were aware
of these various activities prior to Complainant's layoff on
October 11, 1984.
The record, however, also shows that none of Complainant's
safety complaints were received by his foreman or other of
management's personnel with overt resentment, hostility or other
discernible angry or anti-safety reaction.
Also, during the
summer of 1984, all the mill maintenance crew members were making
complaints (I-T. 157; II-T. 56, 88, 128, 149). No one seemed to
be making more complaints than any other (II-T. 88, 128, 140,
149). Furthermore, all of the mill maintenance crew refused to
enter the ball mill with the motor running CII-T. 141, 157, 161).
The October 9 Meeting.
After a rumor circulated that Mill Superintendent Steven J.
Nameth was to issue a company policy that the air clutch lock
out would be sufficient and all employees would abide by such
policy (I-T. 97, 98), Complainant told Timko that "we should have
a meeting" with Arthur J. Schwandt, General Manager for the
project and Nameth's supervisor CI-T. 98). Other maintenance
employees asked Al Jensen for such a meeting CII-T. 89).
The meeting was held sometime between 9 a.m. and 11:30 a.m.
in Steve Nameth's office CI-T. 99, 141; III-T. 101). The mill
maintenance crew at that time consisted of Complainant, Joseph P.
Timkov Dick Eisenbarth, Mike Ingle, Mitch Geyer and as previously
noted, Kenneth Kohles (I-T. 99, 103, 141-142; II-T. 88, 162~
III-T. 65, 166-167).
Joseph Timko, the safety representative, considered calling
a meeting with Al Schwandt but did not do so after he learned of
the "very close" friendship between Schwandt and Nameth (I-T.
136-137)" The meeting in any event was called by Nameth after he
was told by foreman Al Jensen that the men wanted a meeting with
Schwandt to discuss ''complaints'' (II-To 98-100~ III-To 99v 102).
Narneth reported the request to Schwandt who told Nameth "he was
busy'1 and told Nameth to conduct the meeting (III-T. 100).

The meeting was held in Nameth"s office (III-T. 101) and was
attended
Namethv
Jensenr Complainantv Timko 7 Ingle and
Eisenbarth. Mitch Geyer and Kohles did not attend the meeting
(II-T. 129i; III-To 100).
At the beginning of the meeting, Complainant said something
to the effect that the men would like Art Schwandt present at the
meeting (II-T. 91; III-T. 135) and Steve Nameth indicated that
Schwandt would not be present but that he (Nameth) would give
Schwandt all the pertinent information from the meeting.
Nameth
then opened up the discussion and Timko raised the subject of pay
raises (II-T. · 36-37). Thereafter, work procedures and non-safety
subject matters were brought up and discussed CI-T. 100; II-T.
37-42, 90; III-T. 77).

1640

Thereafter, either Complainant or Timko, probably Complainant, raised the question of the lockout procedure (II-T. 90;
III-T. 135).
Those in attendance at this meeting gave differing accounts
of it at the hearing. With the exception of Complainant, most of
their remembrances of it were sketchy, sometimes remarkably
contradictory, and for the most part lacking in detail. Other
than Complainant's version the most inclusive account-with one
inaccuracy as to when the "lockout" discussion occurred - was
that of Nameth:
"The way I remember it, Jones started to speak.
I interrupted and said I have an announcement to make.
I said
we were going to have a lay off that week.
Somebody spoke
up and said, who is going to be laid off.
I said the least
productive employee. They wanted names or somebody said who
and I don't think I mentioned the name.
Then Jones started
complaining about various things in the mill.
I'll see if
I can remember some of them.
He complained about wage
rates, he complained about work schedules, he complained
about a job he had done in the rock mill making some kind of
complaint.
If I had done it his way we could have made it
in four days but my way took 16 days. He complained about
the use of the thickness of hard plates we were using for
wear plates and of course he complained about the ball mill
and rock mill lockout procedure. Before he got to that,
Jones-- not Jones, I'm sorry-- Mr. Timko spoke up rebuking
Jones and saying what's all this about.
I thought we were
going to talk about lockout procedures and well then, Jones
started talking about lockout procedure.
He said tt was not
safe.
It was inadequate. We checked with Bob Morley and
Bob Morley said it was safe and we were legal. Jones then
pulled out a card, I've been to see Bob Morley's boss. He
mentioned the man as nameF I think some district director and
I think his name was Frazier and Frazier said it is not
acceptableo
I said I donut know anything about thato It
was Bob Morley who said it was acceptableo
Jones said
here's his card, call him right now and I said I would look
into it. He said-- kept repeating, call him right now, call
him right nowo He kept repeating and I said if you have
nothing further we better go back to work and the meeting
broke up about that time.

Q. Do you recall anything else about that meeting? Let me
withdraw that question. Was there a specific number of
people as being identified as people who would be laid off
at the meeting?
A.

No.

Q.
I couldn't quite hear when you were speaking and did you
say it was going to be the least productive employee or
least productive employees going to be laid off?

1641

A.

It was plural.

Q.

Did the lay off in fact take place that day?

A.

Yes.

Q.

Who was laid off that day?

A.

Joe Timko.

Q.

Was anybody laid off later that week?

A.

Yes, George Jones was laid off two days later.

Q.

Why was it Timko was laid off first and then Jones?

A. Wellu the work Jones was-- Timko was on was not critical
to the operation of the plant.
Jones was working on a pipeline that was critical."
(III-T. 77-79).
Nameth 1 s version of the October 9 meeting is at variance
with the accounts of all others as to the time when he made the
announcement that there would be layoffs.
According to Nameth,
he interrupted Complainant at the beginning of the meeting to say
he had an announcement to make, i.e., that there would be a layoff.
Nameth's rendition appears faulty in this one respect and I
find that the layoff announcement did occur after the "lockout"
discussion (I-T. 103; III-T. 155). Nevertheless, in all other
respects, Nameth 1 s recollection of the October 9 meeting appears
more lu~~d and detailed than the others and not being in great
variance from Complainant's version it is accepted.
Before the "lockout" discussion, two other safety matters
were discussed, "face shields" and "hooks welded on a handrail"
(I-T. 100-1013 III-To 136)" It is clear, however, that subjects
other than safety matters were also brought up, such as pay
raisesv wage ratesf work schedules, and work matters such as
plate weldsv etco (II-To 36,, 38-423 III-To 103v 136).
As noted above it appears that Complainant brought up the
lockout procedure issue, saying it was not safe.
Nameth replied
that MSHA Inspector Bob Morley had said Respondent's lockout
method was safe at which point Complainant produced a business
card from his pocket and said he had gone to Morley 1 s
boss-Frazier- who said it was not safe.
Nameth said he was not
aware of that (III-To 103-104) o Complainant said 11 here 1 s his
card, call him right nowo ui Nameth said he would look into it and
Complainant kept repeating "Here's his card, call him right now."
According to Nameth, Respondent's safety director thereafter
contacted Frazier and after some procedural processing MSHA
determined Respondent's method was unsafe and that Respondent had
to lock out the motor (III-T. 104-105).
Following the meeting,
testified:

~ameth

1642

reported to Schwandt.

Nameth

"A.
Immediately after the meeting I went to Mr. Schwandt's
off ice and I stated that we could not terminate these people
now as we had previously planned and he said why not and I
said because they have gone to MSHA.

Q.

What was said then?

A.
He said we had planned to lay these people off before
they went to MSHA so let's go ahead with the reduction in
force."
CIII-T.89).
Schwandt confirmed Nameth's account of this conversation
( III-T. 36) •
On October 9 after discussing the matter with Schwandt,
Nameth checked with Al Jensen to "find out what jobs Jones and
Timko were on". Nameth determined that Timko's job was not
critical to the operation to be completed that day and that the
job Complainant Jones was on was critical. He decided to let
Timko go that day and to let Complainant go at the end of his
work week on October 11 CIII-T. 110, 116).
Later in the afternoon of October 9, 1984, Nameth told
Jensen that Timko was to be terminated that day. Nameth was not
present when Timko was told by Jensen he was to be laid off
(III-T. 109-114).
Following the layoffs (!II-T. 139-140), Nameth asked Jensen
to prepare a memorandum (Ex. J-2) with respect to Jones and Timko
which Nameth testified "was intended to be seen by myself and Mr.
Schwandt in case we had problems as we are having right now"
(III-T. 80) and in anticipation of future litigation (III-T. 95).
Schwandt also asked Nameth to prepare such a memo to describe the
incidents that led Nameth to believe Complainant Jones and Timko
should be discharged (Ex. J-3 0 III-T. 80-81)0
Respondentus Positiono
Prior to the opening of the mine an engineering firm
(Kilburn) prepared an authentication of Respondent's preliminary
capital and operating budgets entitled the Kilburn Feasibility
Capital Cost Study andu as previously noted, referred to herein
as the Kilburn Report (III-T. 23).
Excerpts from this Report were introduced into evidence as
Ex. R-lo
Such reflect that a total crew of four, 2 mill
maintenance mechanics and two helpers, were contemplated as the
nproper number" for the mill when its construction was completed
and it came under "operating conditions." (III-T. 23-25, 135)
More mill.maintenance employees were needed and hired during the
period prior to the time the mill began operating CIII-T. 26, 31)
in approximately September 1984 CI-T. 76).
Sometime around the end of August 1984, shortly after the
time Steve Nameth took over the supervision of the mill

1643

maintenance function, the Mine General Manager, Arthur J.
Schwandt, discussed with him the size of the mill maintenance
crew with the conclusion that the crew size should be four with
the possibility that they might get by with less and that two
should be laid off CIII-T. 26-29, 30, 31-34, 42, 90).
In a
meeting in mid-September between Schwandt and Nameth it was
decided that Timko and Complainant would be the ones who would be
laid off in the reduction-in-force CIII-T. 29, 31-33, 34, 47),
the time of which would be contingent on the mill's "operation"
and was anticipated to be "around" the first week of October 1984
(III-T. 48, 50-51). 7; Al Jensen was in agreement that Timko and
Complainant were the-two who should be laid off (III-T. 80).
In this connection, Jensen, who himself had been laid off
and was not employed by Respondent at the time of the hearing,
testified:

"Q. In your view who were the least productive workers of
the group at the time of his determination?
Ao

I had three, George Jones, Joe Timko and Mike Ingle.

Q.
In ranking among those three who would you have laid
off?
A.
If I had to do it because George and Joe because Mike
Ingle was senior of the two.

Q.
Now, in-- why was it you regarded Mr. Jones as one of
the least productive in the unit?
A.
I think it had to do a lot-- seemed like he slowed down,
you couldn't prove this but it seemed like he had slowed
down an awful lot in his work; his temperament had been
very; very bad-- cussingu throwing things aroundo
Qo
What was the reason that you gave him a poor conduct in
the general payroll change notice form?

Ao

Tempera
Jones?

Ao Ohu Joneso It was temper, getting mad at any little
thingot• (emphasis added)
(III-To 138)
After he took charge of the mill maintenance crew in August
1984u
11 Superintendent Nameth told the foreman, Al Jensen, to
tell the crew that "we were overstaffed and we were going to have
to cut two or three people off." He also told Jensen to "keep a

7/

According to General Manager Schwandt, employees who were to

be laid off (RIF:d) in all cases were not given advance notice
(III-T.37).

1644

close eye" so that they would get "rid of the least productive
people". CIII-T. 67). ~/ Around the time Overholser transferred
out of the mill maintenance crew (September 1, 1984), Jensen was
asked by the crew about the transfer and they told him they had
"a lot of work". Jensen told them that he "had been told we
already still have too many people now." CIII-T. 134, 148).
Complainant Jones was present at this time (III-T. 134-135).
The decision to terminate Complainant as one of the two to
be laid off in the reduction-in-force was made by Mill Superintendent Nameth with the approval of General Manager Arthur J.
Schwandt, in late August 1984 CIII-T. 90, 96, 117-119, 122-124,
156). The actual date it was determined that Complainant would
be laid off on October 11, 1984, was October 9, 1984 CIII-T. 122).
At the time of the layoffs of Complainant and Timko on October 9
and 11, 1984, respectively, Mr. Nameth was the person in management's hierarchy who effectively decided to hire, discharge and
layoff employees in the mill maintenance unit CIII-T. 60, 96).
In his testimony, Nameth described at length the reasons for
laying off Complainant Jones {and Timko) and the process by which
this decision was reached as follows:

"A. The AR plate where Jones put in more than was necessary?

A. Yes.
Q. That would have been about the twenty-seventh or twentyeighth of August.
Q. How important was that particular incident to you in
reaching a conclusion?
Ao The importance was that it was becoming apparent that
Jones wouldn 1 t follow instructions. Also important in the
fact he wasted a lot of expensive AR plateo
Q. When did the incident with the two by four pieces occur?
A. Sometime in July, early August.
Q. And how did you hear about that?

~/

Although Complainant alleges, and various of the crew who
testified said, that the crew had no "advance notice" of the
layoffs, Nameth's testimony that he told Jensen that two or three
of the crew were to be "cut" is supported by the testimony of one
crew member (Geyer) that there was "hearsay going around" that
there was to be a reduction (II-T. 132).
Also, as noted above,
Ingle conceded he was told when he was hired that there might be
layoffs after things got "going" (II-T. 99).
These two
evidentiary items lend support to Respondent's position.

1645

A. The carpenter involved told me about it. The carpenter
was working for me.
I believe at the time Jones was probably reporting to Bernie Carter through Jensen.
Q. Were you in a position at that point to take any disciplinary action?

A. I didn't.
happened."

found OQt about it a day or so after it
(III-T. 85-86).

I

xxx

xxx

xxx

xxx

xxx

"A.
He was apparently deliberately slowing down.
He was
slow getting to the job. He always complained about stuff
he had to work with."
( III-T. 87) •

xxx

xxx

xxx

xxx

xxx

"Did you have authority to reduce the force on your own
authority?
A. Probably, I am sure I would have discussed it with Mr.
Schwandt.
Q. Did you discuss it with Mr. Schwandt?
A. Yes, I did.
Q. When was that?
A. The function was turned over to me on the twenty-fifth.
The following Monday would have been the twenty-seventh and
I would-- I'm sure I would have met with him on the twentyseventh.
Q. What was said during that meeting?

A.
I mentioned the fact that we had too many people in that
department and told him of the other operations that I had
been on.
He mentioned that there was some kind of study by
Kilburn that indicated we were supposed to have four
mechanics after the operation started up.
Q. Were any people discussed as candidates for a reduction
in force?

Ao YeSo
Q. Who was discussed?

A. Joe Timko and George Jones.

Q. What was said about them by each of you?
A. I mentioned the fact they looked like they were dragging
their feet.
They weren't giving us an honest days work.

1646

There were several incidents which showed this.
I think
the-- I had an incident with George Jones on the cone
crusher discharge chute where I told Al Jensen to put the
discharge chute with no instructions (sic) because we were
going to encounter a lot of clay and the chute should be
without obstructions. George put the plate in there with
protective obstructions and to protect the bolt heads.
Somebody had to go back in there and cut them out. That
added a lot of time to that job.
Q. Did you mention this to Mr. Schwandt?
A. I don't remember whether I did or not.
Q.
I am just trying to find out what you mentioned to him
during this meeting?
A.
One of the things I mentioned to him, I could see
crackers put in the plant, put in the chutes. They didn't
put in wear plates and we had an incident with George Jones
where what he was instructed to do was braze resistant
plates.
It's expensive.
He had instructions to put in the
hard plate to a certain length and he exceeded that and
wanted it his own way-- I don't understand that level and
when I questioned-- George doesn't know to follow instructions. He likes to do things his own way.
Q. Did you tell that to Mr. Schwandt?
A.. Yes,

I did.

Q. Did you tell anything else to Mr. Schwandt concerning
these two employees or either of them in this meeting you've
just described?
Ao

You are talking about the meeting of the twenty-seventh?

QQ I am talking about the meeting of the week of August
twenty-seventh.
Ao
Actual incidents, no: with the exception of the fact
that both Jones and Timko were very slow getting away from
the tool room,, Where most of the other mechanics would be
off in 10 or 15 minutes to their jobs, Jones and Timko very
of ten would be there 30-35 minutes after we started the
shift,,

Q" Now, did Mr. Schwandt have anything to say with respect
to either of those employees?
A.. I think Mr. Schwandt made some comments about Joe Timko's
work.
I don't think he said anything about Mr. Jones.

Q. Do you recall whether he mentioned any particular Incidents with Timko?

1647

A. He mentioned it everytime he noticed Mr. Timko that he
was-- I don't remember his exact words, but he was-- but
that he was moving in slow motion.
Q. Do you recall whether he said anything else on some
particular incident?

A. No, it was a long time back.
Q. Was there any decision made at that time to have a reduction in force? How did the meeting conclude?
A. There was no question at that time we were going to have
a reduction in force.
We had made a tentative decision that
it wo~ld be Jones and Timko but I decided I would watch both
of them and see if there was any change in attitude and behavior.
Q. There were no incidents that occurred that week with
Mr. Jones?
A. Yes, there was an incident of the hydrostroke cylinder.
Mr. Jones and Mr. Timko were both assigned to remove the
hydrostroke cylinder because it had malfunctioned. We had
to take it apart to where it had malfunctioned.
It took
Jones and Timko about eight hours to remove that and replace
it.
I felt that was much too long a time.
Q. Was that reported to Mr. Schwandt at anytime during the
week?
A. Sometime during the week, yes.
I think it was-- may have
been Mr. Schwandt had walked by that job that particular day
and observed some of it.
Q. And who was involved in-- with that particular job?
A. Mr. Jones and Mr. Timko.
Somebody said that Mike Ingle
was there part of the time, but I don't recall seeing him.
(III-T. 68-72)

xxx

xxx

xxx

xxx

Qo Did you have any subsequent meetings with Mro Schwandt
on the subject of the reduction in force?

Qo When?

A. Sometime during the week of September 16th or 17.
believe 16th-- early in the week.

I

Q. What was said during that meeting?
A. I walked in his off ice and told him I wanted to reduce
these guys, let these guys go now.

1648

Q. What did Mr. Schwandt say?
A. Mr. Schwandt said we still have a lot of work to do;
don't cut your nose off to spite your face.
Let's wait a
few more weeks.
Q. Had there been any event that took place other than the
hydrostroke cylinder that had brought you to that conclusion
or what was it?

A. In the case of Mr. Jones-- I'm sorry, Mr. Timko, had done
a job on me number four conveyor belt skirting. He had
fabricated the skirting, it was all wrong, had to be redone.
That was sometime during that period.

Q. What about Mr. Jones, did anything happen to him other
than the hydrostroke cylinder incident?
A. No specific things I can remember except for the fact I

observed them apparently working at a slow pace, getting
away from the tool room late, having coffee breaks."
(III-T. 68-73; See also III-T. 117-118).
On cross-examination, Mr. Nameth reiterated his reasons for
selecting Complainant and Timko as the two mill maintenance
employees who should be laid off, and pointed out that his
decision was made before the "lockout" matter arose:
Q. " ... as of the twenty-seventh, what in Mr. Jones conduct
led you to conclude that he would be a candidate for favor
to be reduced in force?

A. His general conduct about dragging his feet, taking a
long time to leave the tool room to go to his jobv the cone
crusher charge chute incident that I described-- that was
some of it.
Q. Nowv how did you observe his general conduct the fact
that it took him a long time to leave the tool shed? Were
you standing there watching?
~. Their starting time was 6~30.
I would come up to the
mill area about that time.
I noticed other mechanics were
off on their jobs and Timko and Jones were still in that
area gathering up toolsv getting ready to be-- to go to a
job.

Q. You didnut say anything to him?
A. I would deal with him through Mr. Jensen.
plain to Mr. Jensen·about it.

xxx

xxx

xxx

1649

xxx

I would com-

xxx

Q. Now you as of the twenty-seventh felt Mr. Jones' performance was unacceptable; is that correct?
A. Yes.

Q. You didn't feel it incumbent upon yourself to give him a
chance to improve himself?
A. Before I took over from Bernie Carter, since I was going
to have responsibility of that plant, I was out in the field
quite often where Jones and Timko were working.
I observed
their work habits at that time but I wasn't directly responsible for them at that time.
I forme1 conclusions.
Even at that time I had suspicions, yes.
I talked to Al
about their performance and their performance did not improve from the day I took over.
It seemed to get worse but
it wasn't all that good up until that time.

xxx

xxx

xxx

xxx

xxx

Q. When did you learn that Mr. Jones had refused to enter
the ball mill under the lockout procedure that you had instituted?

A. You look for an exact date?
Q. Approximately?

A. It would have been about the twentieth or twenty-first
of September.
Q.
And this was after you had already formed the conclusion
that he would definitely be terminated?
(III-To 90-94)

would think sov yes.

xxx

xxx

xxx

xxx

Qo I believe you mentioned something about a two by four
that Mro Jones had thrown on the floor?
Ao No it wasn't one two by four-- a carpenter was working
at a table"
He had cut a number of two by fours for a job
that he was doing and Mr. Jones came along and asked him if
he could have one or some of the two by fours and the carpenter said no, I need all that I 9 ve got. Mro Jones in a
fit of temper swept everything off the table.
Q. And did this help you to reach a conclusion that he
should be terminated?
A. It didn't help Jones case any.

xxx

xxx

xxx

1650

(III-T. 97)

xxx

xxx

Q. There was other evidence of Mr. Jones sweeping two by
fours on the floor?
A. No. There were other reports of Mr. Jones not being able
to get along with some of the other people around there.
Q. Second hand reports?

A. Yes.
Q. But you never checked those out did you?
A. No, I didn't.

CIII-T. 98).

CONCLUSIONS AND DISCUSSION
The Discrimination Formula.
In order to establish a prima f acie case of discrimination
under Section 105Cc) of the Act, a complaining miner bears the
burden of production and proof to establish Cl) that he engaged
in protected activity and (2) that the adverse action complained
of was motivated in any part by that activity. Secretary on
behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786,
2797-2800 (October 1980), rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir., 1981); and
Secretary on behalf of Robinette v. United Castle Coal Co., 3
FMSHRC 803, 817-18 (April 1981). The operator may rebut the
prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by
protected activity.
If an operator cannot rebut the prima facie
case in this manner it may nevertheless affirmatively defend by
proving that (1) it was also motivated by the miner's unprotected
activities, and (2) it would have taken the adverse action in any
event for the unprotected activities aloneo
The operator bears
the burden of proof with regard to the affirmatively defense.
Haro v. Magma Copper Co., 4 FMSHRC 1935u 1936-38 (November 1982).
The ultimate burden of persuasion does not shift from the complainant.
Robinette, 3 FMSHRC at 818 n. 20.
See also Boich v.
FMSHRC, 719 F.2d 194u 195-96 {6th Cir. 1983); Donovan v. Stafford
Const., COou 732 F.2d 954, 958-59 (D.C. Ciro 1984) {specifically
approving the Commissionus Fasula-Robinette test); and Goff Vo
Youghiogheny & Ohio Coal Company, 8 FMSHRC 1860 (December 1986).
In terms of the required prima facie case in discrimination,
Complainant clearly established the first elements thereof, i.eo
that
had engaged in protected safety activit
and that
Respondent 1 s management was aware thereof prior to the time he
was laid off.
Discriminatory Motivation
The first of the two salient issues posed here are whether
the adverse action (layoff) taken by Respondent against
Complainant was "in any part" motivated by Complainant's pro-

1651

tected activities. Respondent contends that it was not so motivated in either laying off two of the mill maintenance crew or in
selecting C~aplainant as one of the two to be laid off.
Respondent's second line of defense, the affirmative defense
provided under the Commission's discrimination formula, then
frames the second issue: Assuming arguendo that Respondent was in
part motivated by Complainant's protected activities, was it also
motivated by his unprotected activities and would it in any event
have laid him off for his unprotected activities alone.
Under the 1977 Mine Safety Act, discriminatory motivation is
not to be presumed but must be proved. Simpson v. Kenta Energy,
Inc. and Jackson, 8 FMSHRC 1034, 1040 (1986). Complainant, in
order to carry the burden of establishing discriminatory motivation, seeks to have an inference thereof drawn from various
circumstantial factors. From gleaning and organizing these
points from this difficult record and briefs, several are set out
and discussed below. It is noted that three of these factorswhich are found to lack significant merit - are listed in the
amended complaint and constitute part of the foundation for Complainant's theory of discrimination.
(a) The Secretary argues that Complainant and Timko were
shown in the record and characterized by Jensen CIII-T. 150) as
the two biggest "complainers" and that these were the same two
Respondent selected to lay off.
I construe this characterization by Jensen to at least
include safety complaints as well as other work-related
non-safety complaints. Nevertheless, various other factors take
the edge off this particular argument. The other members of the
mill maintenance crew also complained of safety and other
matters, also refused to enter the ball mill to do repair work
unless the motor was locked outu specifically complained about
the lock out procedure, and had arguments ("discussions") with
Nametho
As far as Timko was concerned, Nameth denied CIII-T. 127),
and it was not otherwise established, that he had knowledge that
Timko had been elected the crew 1 s "safety representative." I
thus draw no carry-over inference that had it been established
that Timko was discriminated againstp such discriminatory intent
should be attributed to Respondent's purposes in also laying off
Complainant.
It is noted (1) that the Secretaryvs discrimination
case on behalf of Timko was settled and not litigated and (2)
that the record in this matter does not independently contain
sufficient evidence from which a determination can be made
whether or not Timko was discriminated against, or more specifically, whether or not Respondent was discriminatorily motivated
in laying off Timko.
Respondent credibly established good and sufficient reasons
related to the work performance of Complainant for picking him to
be one of the two to be laid off in accordance with the Kilburn

1652

Report 1 s staffing plan after the construction phase was completed
and the mill was operating.
(b) In the Amended Complaint, Complainant alleges that
Nameth became irritable at the October 9 meeting after the "lock
out" problem was raised and after it became apparent that Complainant had gone to the MSHA off ice in Reno and complained about
Respondent's lock out procedure.
Nameth's demeanor at this meeting was the subject of
numerous descriptions, conflicting even among Complainant's own
witnesses, one of whom said that Nameth was irritable even when
he came into the meeting CII-T. 90).
After careful scrutiny of
the record, I find no credible, probative evidence that Nameth's
demeanor at the October 9 meeting was any different than his
customary demeanor which the crew members described in such terms
as "belligerent", 11 hostile," "irritable", "angry," etc. CI-T. 81,
90, 93, 134, 151). I find no reliable evidence and I am unable
to conclude that any irritability shown by Narneth during the
October 9 meeting was traceable to or a reaction to the lock out
discussion or the expression of safety complaints. The record
demonstrates there is both consistency and reliability in (1)
Respondent's position and the testimony of its various witnesses
that the layoff decision was made between Schwandt and Nameth
some two to three weeks prior to this meeting, and (2) the bases
established by Respondent (heretofore discussed) for the layoff
of two crew members and Complainant and Timko in particular.
(c) Another factor urged by Complainant for inferring discriminatory motivation is that there was no "advance notice"
announcement, communication or other specific notification to the
employees at any time that their employment was to be temporary
or that there would be a layoff at a future time (Complainant 1 s
brief , p. 2 2 ) •
Based on prior findingsu I conclude that this contention has
no merit and should not be considered part of any basis for
inferring discriminatory motivation. Although Complainant
testified that he was not advised at the time of hiring that the
position was temporary, Ingle was so advised. Geyer testified
that there was a layoff rumor going around which is consistent
with Namethis testimony that he told Jensen to tell the crew that
a cut of two or three mill maintenance employees would have to be
made.
It is also consistent with Jensen 1 s testimony that he told
the crew that he "had been told that we already still have too
many people.ui
I do infer from this evidence that the crew was
aware that a layoff was coming prior to the October 9 meeting in
view of the small size of the crew and their poignant sensitivity
to employment concerns shown in the record.
(d) Complainant alleges:
"As justifications for the alleged
early decision to terminate Jones and Timko, Nameth complained
that Jones had wasted a lot of expensive AR plate and that Jones
and Timko were slow in getting away from the tool room.
In fact,

1653

Nameth complained that Jones and Timko would of ten remain from 30
to 35 minutes after the start of the shift (III-T. 70). Both of
these complaints involved the wasting of company assets (either
money or time).
It must be remembered that Jones and Timko,
although marked for termination as of the end of August, were to
remain on the job until sometime in October.
It is inconceivable
that a manager could observe employees wasting half an hour at
the start of the shift, consider it important enough to be a
factor in a decision to terminate the employees, and never
complain or take any steps to see that it did not continue for
the next six weeks of their employment." (Complainant's Brief p.
18) •
As with many of Complainant's assertions, I find little
merit in this contention. Nameth's failure to take direct
disciplinary or corrective action himself is consistent with
Respondent's intention of laying off employees in the near term.
Also Nameth testified that he was "sure" that he expressed a
complaint through Jensen about Complainant's and Timko's
tardiness (III-T. 30, 91, 93). It is also apparent that shortly
thereafter in mid-September, Nameth asked Schwandt to trigger the
layoff immediately CIII-T. 73). According to Nameth, whose
testimony I find generally persuasive and reliable, Schwandt
replied: " ••• we still have a lot of work to do; don't cut your
nose to spite your face. Let's wait a few more weeks." CIII-T.
7 3)

0

Had Complainant- and Timko- been punitively discharged for
"wasting" company "time and money", this argument would have more
strength. However, with a layoff planned in the foreseeable
future, Nameth's actions are not inconsistent with Respondent's
general position, nor are they seen as demonstrating a discriminatory frame-of-mind.
By contrast, Complainant's work performance here is seen as providing a business justification for
respondent us decision to select him for the layoff
o

Ce) Complainant argues that various work and staffing
decisions by Respondent were not 11 consistent with a business need
to reduce the number of maintenance employees." Various of these
points which are frequently general and not particularly
probative to begin withff are that~
(i) Kenny Kohlesv an inexperienced 19-year old who had
been hired as a janitor in May 1984, was promoted to the
mill maintenance crew around September 1:
(ii) After the layoffs, the crew members who remained
were required to work considerable overtime;
{iii) An outside contractor (Western General Contractors)
was brought in to do maintenance work which could have
been performed by.employees of Dee Gold;
(iv) Complainant and Timko were the only two workers laid
off in 1984.

The record reflects that Respondent did get by with two less
mill maintenance employees after the layoffs and after the mill

1654

began operating; that the complement of 6 crew members prior to
the mill start-up was reduced in accordance with Respondent's
Kilburn Report staffing plan (III-T. 25, 27, 32) which was
conceived before Complainant (and Timko) were hired; that Kohles
was brought in to replace Overholser who requested a transfer out
of the crew because of "friction" and that such replacement kept
the size of the crew constant until such time as the layoff was
called for. Kohles, according to Schwandt, was a "very hard
working young fellow" (III-T. 43) and was "proficient in heavy
equipment operation" (III-T. 65).
Respondent also credibly explained that the reduction in its
mill maintenance force was called for even though there was no
reduction in other sections of the mine, and that such was due to
the fact that "we had more people than we had budgeted for"
(III-T. 62). Respondent then established that it was "cheaper to
pay a premium for" overtime than to have extra workers due to the
cost of fringe benefits, such as health benefits (III-T. 40, 41),
and that the work performed by Western General Contractors was
within the framework of its contract and not a diversion of work
from the mill maintenance crew CII-T. 153; III-T. 37-39).
(f) Complainant contends the after-the-fact written statements of Jensen (Ex. J-2) and Nameth (Ex. J-3) were prepared as
part of a pretextual business justification for the layoff of
Complainant and Timko. Here Complainant contends (Complainant's
Briefv p. 24)~
It is only after the (October 9) meeting, after the terminations and after Jones informs Nameth that he is going to
fight his termination, that Jensen is instructed to write
anything negative he can think of relating to the employment
history of Jones and Timko. Likewise, the self-serving
memorandum from Nameth to Schwandt only occurs after Jones
informs Nameth that he is going to fight. This is almost a
classic scenario of an ex post facto attempt to fabricate a
factual justification for a prohibited action already
taken."
There is no contention -- in this argument-- that any of the
deficiencies of Complainant and Timko contained in the written
statements of Jensen and Nameth did not occur. The point sought
to be made is that such were fabricated and after-the-fact of the
layoffs and thus should be the basis for an inference of
discriminatory intent or animus. The response to this contention
appearing at page 14 of Respondent 1 s brief is found to have
·~
rneri~.

nJ-2 was not a routine document, rather one prepared for
the purposes of the litigation. Specifically, it was
prepared by Mr. Jensen pursuant to Mr. Nameth's request to
list all of the problems that he, Jensen, had experienced
with Messrs. Jones and Timko.

1655

Mr. Schwandt asked Mr. Nameth to prepare, and to have Mr.
Jensen prepare, memoranda justifying Mr. Jones' termination •
.•. This memorandum was intended entirely for the internal
purposes of Dee Gold, and was not intended for distribution
to third parties .••• The only reason the Government obtained it was because it asked for it in its discovery and
it was dutifully produced. There is no suggestion in the
record that the memorandum was relied upon by any parties
in terminating Mr. Jones (although some of the incidents
recounted in it are pertinent); indeed, it is perfectly
plain that it was made following his termination."
I find nothing irregular, suspicious, or nefarious in the
fact that Respondent attempted to make a record for its own
purposes after the layoffs in anticipation of future litigation
(III-T. 54-57). Respondent effected no pretense that such statements were prepared prior to the layoffs. This contention is rejected.
At page 16 of its brief, Complainant expresses a related
concern~

'There is no dispute that management was aware of Jones'
safety complaints during the month of September. If, in
fact, they had decided in September to terminate Jones and
were, in fact, fearful of "repercussions" would it have not
been logical to prepare these memoranda at the time the
decision was made and while Jones was still employed? The
timing of these memoranda is additional evidence that the
allegations contained therein were pretextural justif ications for decisions made in October which had nothing to
do with ability or productivity."
9

The record firmly establishes that all members of the mill
maintenance crew had expressed safety and other complaints during
the summer of 1984 and were apparently not reluctant in doing so.
~t appears- and
the probative evidence establishes-that
Respondent had acquired real reason to anticipate litigation
following both the October 9 meeting and the "I'll fight it"
conversation between Nameth and Complainant after Complainant was
laid off on October llv 1984e The fact that Respondent did not
°'document •i Complainant as deficiencies earlier is not ill0gical
but it is consistent with the position Respondent has taken in
this matter that Complainant was laid off in a long - anticipated
reduction-in-forcev and was not punitively discharged for unsatisfactory work performance or other reasons. An inference
that the timing of the obtaining of the Jensen and Nameth statements is indicative of "pretextual justifications" will not be
drawn"
(g) As part of the mosaic from which Complainant urges the
inference of discriminatory motivation be drawn, Complainant
points out that approximately three months after he was hired,
Complainant Jones received a written evaluation rating him

1656

"excellent" in all categories and he received no subsequent
ratings or reprimands until his discharge.
Respondent credibly established and I have hereinabove found
that Complainant's performance deteriorated thereafter in various
respects. Respondent's evidence in this respect is reliable and
persuasive and its determination to select Complainant for layoff
is found to be reasonably attributable-by virtue of the preponderant probative evidence-to the justifications asserted and
not to complainant's protected activities.
( h)
The most questionable circumstances raised by Complainant arose out of the October 9 meeting and from which Complainant maintains that the timing of the layoff announcements
reflects anti-safety or retaliatory animus. Thus:

a. the meeting was called for the purpose of discussing
complaints, including safety complaints;
b. safety complaints were indeed expressed at the meeting, including the "lock out" problem, and;
c. after such, and Complainant's revelation that he had
reported the lock out problem to MSHA, Nameth announced
the layoffs;
(d) Nameth incorrectly testified that he announced the
layoffs before the lock out issue and Complainant's
revelation were brought up.
Respondent, however, credibly established that it had
previously planned the layoffs to take place around the time the
October 9 meeting was held. Also, as previously shown,
Complainant's belief and contention that Respondent had not
previously planned, had no justification for, and had made no
prior indication to the crew as to, the reduction in crew size
was shown to be in error. Further, the quality of this record
does not provide any reliable or persuasive basis to conclude (a)
Nameth showed irritability at the meeting or (b) even assuming
that he did, that
was a reaction traceable to the voicing of
any safety complaint or complaintso
Respondent, on the other hand, persuasively established that
the layoffs were planned long before Complainant was hired and
that there existed good and sufficient reason for the selection
Complainant for the reductiono 9; In addition, as previously
shown, various of the bases for Complainantns assertion of
discriminatory motivation, tenuous to begin with, did not stand
up well under scrutinyo

~/

In Haro v. Magma Copper Company, 4 FMSHRC 1935 (1982) the
Commission pointed out: "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."

1657

In reaching the conclusion that the Secretary failed to
establish that Complainant's layoff was discriminatorily motivated, consideration has been given to the fact that the record
is barren with respect to ancillary or background factors
which would reflect a disposition on the part of Respondent's
management personnel, singularly or collectively, to engage in
such conduct.
A prior history of, or contemporary action
indicating, antagonism or hostile reaction to the expression of
safety complaints was not demonstrated. There was no evidence of
retaliation against other employees who had expressed safety
complaints either in the mill maintenance crew or other
departments.
The record in this proceeding contains no admissions or
other statements, oral or written, from the management personnel
involved indicating an anti-safety reporting animus.
Indeed, the
record reflects that none of the employees were threatened or
subjected to retaliation for expressing safety concerns or, in
connection with the lock out issue, for not working inside the
ball mill.
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 (D.C. Cir. 1983); Sammons
v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984). The
present record contains no direct evidence that Respondent was
illegally motivated, nor does it support a reasonable inference
of discriminatory intento
Ultimate Conclusionso

It is concluded that Respondent's motivation in selecting
Complainant for layoff was for his several unprotected activities
and the business justifications asserted by its management
personnel, Schwandtp Nameth and Jensen, and that such decision
was justified. It is further found that the adverse action
complained of (layoff) was not in part discriminatorily motivated. Thus, the Secretary failed to establish a prima facie
case of discrimination under Section 105Cc) of the Act.
Even assuming arguendo that it were established by a preponderance of the evidence that Complainant's discharge was
motivated in part by his protected activities, Respondent showed
by a clear preponderance of the reliable, probative evidence that
it was motivated by Complainant's unprotected activities and that
it would have taken the adverse action in any event for such.
See Gravely v. Ranger Fuel Corp., 6 FMSHRC 799 (1984).

1658

ORDER
Complainant having failed to establish Mine Act discrimination on the part of Respondent, the Complaint herein is found
to lack merit and this proceeding is dismissed.

~~~~~~~.

/~.fc;hael A. Lasher, fr.
Administrative Law Judge

Distribution:
Marshall P. Salzman, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson Street, 10th Floor, San Francisco, CA
94119-3495 (Certified Mail)
Jay W. Luther, Esq., Chickering & Gregory, Three Embarcadero
Center, 23rd Floor, San Francisco, CA 94111 (Certified Mail)

/bls

1659

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

SEP 81987
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 87-129-M
A.C. No. 05-02666-05504

v.

Trupp Quarry

NEIL SPRAGUE,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Lasher

Citation No. 2638675 was issued on December 1, 1986, for
Respondent's failure to provide for an elevated haulage road. On
January 28, 1987, a Section 104Cb) Withdrawal Order (Failure to
~bate Order No. 2637460) was issued since the Respondent failed
to provide the berm within the time period provided in the
Citation and its extension.
In issuing the Withdrawal Order, the
Inspector noted that the Order was written to "replace" the
Citation "which was not complied with."
In the parties' joint motion for approval of the settlement,
the Petitioner moved to vacate the Order since preparation for
the hearing "revealed that the failure to build a berm was caused
by adverse weather conditions."
As part of the settlement the
administrative penalty originally sought by MSHA was reduced from
$195 to $300 The reduction appears justified in view of the
inference to be drawn from the fact that the Withdrawal Order
has been withdrawn.
I conclude that this reflects a change in
Petitioner 1 s initial belief that Respondent did not proceed in
good faith to promptly abate the violation after notification
thereof.
It also appears that this is a small operator (8800
hours worked per year) who had a record of but 3 violations in
the preceding 24-month period.
In the prernisesv the settlement is approved.

ORDER
1.

Withdrawal Order No. 2637460 is vacated.

2.

Citation No. 2638675 is affirmed.

1660

3. Respondent, if it has not previously done so, shall pay
the Secretary of Labor within 30 days from the date of this
decision the sum of $30.00 as and for the civil penalty for the
violation described in Citation No. 2638675.

~~~~£' d- ~~/fi/-'f~hael A. la~her, Jr.

Administrative Law Judge
Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Arkins Park Sone, Mr. Neil C. Sprague, 5975 North County Road 27,
Loveland, CO 80538 (Certified Mail)

/bls

1661

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

SEP 101987
DISCRIMINA'rION PROCEEDING

PAULA L. PRICE
Complainant

Docket No. LAKE 86-45-D
VINC CD 85-18

v.

Monterey No. 2 Mine

MONTEREY COAL COMPANY
Respondent
ORDER

The attached Amerrded:necision is hereby issued pursuant to
Commission Rule 65(c), 29 C.F.R. § 2700.65(c) to corr. t clerical
mistakes in the decision in this case issued on Sept.~ er 3,

I

1987.

~

1

Judge
Distributiong
Linda Krueger MacLachlanu Esq. 1 314 North Broadway, Suite 1130,
St. Louis, MO 63102 (Certified Mail)
'I'homas Co Means v Esqo f Crowell
NoW., Washington D.C.
20036

&

Moring, 1100 Connecticut Ave. v
(Certified Mail)

npt

1662

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

22041

SEP 10 1987 previously issued Sept. 3, 1987
DISCRIMINATION PROCEEDING

PAULA L. PRICE
Complainant

Docket No. LAKE 86-45-D
VINC CD 85-18

v.

Monterey No. 2 Mine

MONTEREY COAL COMPANY
Respondent

AMENDED DECISION
Appearances:

Before:

Linda Kruege~ MacLachlan, Esq., St. Louis,
Missouri for the Complainant;
Thomas c: Me~ns, Esq., Crowell & Moring,
Washington, D.C. for the Respondent.

Judge Melick

On July 28, 1985, Paula L. Price filed a complaint of
discrimination with the Secretary of Labor under Section
105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 801 et. seq., the "Act"l/, alleging inter alia that
Monterey Coal-Company (Monterey)-discriminated against her in
violation of Section 105(c)(l) of the Act by suspending her for
refusing to wear metatarsal safety boots provided by Monterey.
Mso Price maintains that the boots did not fit, caused foot
injuries and presented a health and safety hazard.
~/Section

105(c)(2) of the Act provides as followsg

Any miner or applicant for employment or representative
of miners who believes that he has been discharged,
interfered with 9 or otherwise discriminated against by
any person in violation of this subsection may, within
60 days after such violation occurs, file a complaint
with the Secretary alleging such discrimination. Upon
receipt of such complaint, the Secretary shall forward
a copy of the complaint to the respondent and shall
cause such investigation to be made as he deems
appropriate. Such investigation shall commence within
15 days of the Secretary's receipt of the complaint,
and if the Secretary finds that such complaint was not
frivolously brought, the Commission, on an expedited
basis upon application of the Secretary, shall order

1663

Thereafter, on January 7, 1986, the Secretary's
representative responded to the Complaint. The letter reads as
follows:
Your complaint of discrimination under section 105(c)
of the Federal Mine Safety and Health Act of 1977 has
been investigated by a special investigator of the Mine
Safety and Health Administration (~SHA).
A review of the information gathered during the
investigation has been made.
On the basis of that
review, MSHA has determined that your complaint of
discrimination has been satisfied and that no further
pursuit of the complaint is required.

fn.l/ (cont'd)
- the immediate reinstatement of the miner pending final
order on the complaint.
If upon such investigation,
the Secretary determines that the provisions of this
subsection have been violated, he shall immediately
file a complaint with the Commission, with service upon
the alleged violator and the miner, applicant for
employment, or representative of miners alleging such
discrimination or interference and propose an order
granting appropriate relief. The Commission shall
afford an opportunity for a hearing; (in accordance
with section 554 of title 5, United States Code, but
without regard to subsection (a)(3) of such section)
and thereafter shall issue an order, based upon
findings of factv affirming, modifyingr or vacating the
aecr
•s proposed order, or directing other
appropriate relief
Such order shall become final 30
days after its issuance. The Commission shall have
authority in such proceedings to require a person
committing a violation of this subsection to take such
affirmative action to abate the violation as the
Commission deems appropr
, including, but not
limited to, the rehiring or reinstatement of the miner
to his former position with back pay and interest. The
complaining miner, applicant, or representative of
miners may present additional evidence on his own
behalf during any hearing held pursuant to this
paragrapho
o

1664

If you should disagree with MSHA's determination, you have
the right to pursue your action and file a complaint on your
own behalf with the Federal Mine Safety and Health Review
commission at the following address:
Federal Mine Safety and Health Review Commission
1730 K Street N.W.
Washington, D.C. 20006
(202} 653-5629
Section 105(c) provides that you have the right, within 30
days of this notice, to file your own action with the
Commission.
After further unsuccessful efforts to have the Secretary
represent her under section. 105(c)(2) of the Act, Ms. Price filed
the instant proceedings under Section 105{c)(3) of the Act and
under what was then Co:rrrmission Rule 40(b).~/
In her initial request to the Commission Ms. Price stated in
part as follows:
I would like to file a complaint in my own behalf
concerning discrimination under section 105(c) of the
Federal Mine Safety and Health Act of 1977. MSHA has
determined my complaint has been satisfied. I feel it
has only been partially satisfied.

2/ Commission Rule 40{b), 29 C.F.R. § 2700.40(b),
then provided as follows:
complaint of discharge 9 discrimination or interference
under section 105(c) of the Act may be filed by the
complaining miner, representative of miners, or
applicant for employment if the Secretary determines
that no violation has occurred, or if the Secretary
fails to make a determination within 90 days after the
miner complained to the Secretary.

1665

Subsequently, in a decision issued on August 25, 1987, a
majority of the Commission invalidated Rule 40(b) in part and
stated as follows:
Section 105(c} does not provide that complainants may
file complaints on their own behalf if the Secretary
has not determined whether a violation has occurred
within 90 days of the filing of the complaint. To the
contrary section 105(c)(3) expressly provides that the
complainant may file his private action only after the
Secretary has informed the complainant of his
determination that a violation has not occurred:
Within 90 days of the receipt of the
complaint filed under [Section 105Cc)(2)J,
the Secretary shall notify, in writing, the
miner •.• of his ~etermination whether a
violation has occurred. If the Secretary,
upon investigatiGn, determines that the
provisions of [section 105(c)] have not been
violated, the complainant shall have the
right within 30 days of the Secretary's
determination, to file an action on his own
behalf before the Commission, charging
discrimination or interference in violation
of [section 105Cc)(l)].
Gilbert v. Sandy Fork Mining Company Inc. and Secretary on
behalf of Gilbert v. Sandy Fork Mining Company Inc., Dockets No.
KENT 86-49-D and KENT 86-76-D, slip opinion p.11.
In that decision the majority also held that its ruling
th
n was applicable to any individual discrimination complaint
then pending before the Cornmissiono
In light of the above it is clear that I am now without
legal authority to continue the instant proceeding under section
105(c)(3) of the Acto The Secretary has not informed the
Complainant her n of a determination that a violation has not
occurredo~/ Accordingly I have no choice but to dismiss this
caseo

3/ On the contrary, testimony at hearings in this case
indicates that the Secretary's representatives found that there
was a violation of section 105{c) but decided that in light of
th8 purportedly small amount of damages involved and the heavy
caseload in the Solicitor's office the case was not significant
eiwugh ior the Secretary to pursue. Tr. 2589-2590.

1666

ORDER
Discrimination Proceeding Docket No. LAKE 86-45
dismissed.

is hereby

Judge
Distribution:
Linda Krueger MacLachlan, Esq., 314 North Broadway, Suite 1130,
St. Louis, MO 63102 (Certifie~ Mail)
Thomas c. Means, Esq., Crowell & Moring, 1100 Connecticut Ave.,
N.W., Washington, D.C.
20036
(Certified Mail)
npt

166 7

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

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

SEP 151987

.

ARNOLD SHARP,
Complainant

DISCRIMINATION PROCEEDING
Dodket No. KENT 86-149-D

v.
No. 1 Surface Mine
BIG ELK CREEK COAL CO.,
INC.,
Respondent
SUPPLEMENTAL DECISION
Appearances:

Before:

Leon L. Hollon, Esq., Hazard, Kentucky, for
Complainant;~ Stephen C. Cawood, Esq.,
Pineville, Kentucky, for Respondent.

Judge Fauver

A decision on liability was entered on July 22, 1987,
holding that Respondent discharged Complainant in violation of
§ lOS(c}(l) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 801 et seq., on May 28, 1986. The decision provided
that the parties should meet in an effort to stipulate the amount
of back pay, interest and litigation expenses due the
Complainant, and to subm~t a proposed order for relief.
\.

The parties have submitted a proposed orderv agreed to by
Complainant and the attorneys for Complainant and Respondentu
with their motion for approval of the settlement reflected by the
proposed ordero
Paragraphs one through six of the proposed order? with minor
changesv are approvedv but paragraphs seven and eight are not
deemed to be appropriate in an order for relief under the
statuteo
ORDER
Based upon the proposed order as approved herein, it is
ORDERED thatg
1. Within three days following receipt of this Order
Respondent shall pay to the Complainant the total sum of $45,000,
representing past wages, together with interest and all

1668

reimbursible expenses incurred by Complainant in connection with
this pending matter.
2. Respondent shall reinstate the Complainant to his
previous job as a rock truck driver at the Respondent '·S No. 1
Surface Mine in Leslie County, Kentucky, at that mine's
prevailing rate for said classification {or $9.00 per hour), said
reinstatement to be effective immediately upon receipt of this
Order.
3. At the conclusion or termination of Respondent's
operations or services for Blossom Coal Company at Respondent's
No. 1 Surface Mine, Respondent shall transfer the Complainant, or
cause the Complainant to be transferred, to either a mining
operation conducted by Red Star Coal Company or a mining
operation conducted by Golden Oak Mining Compay, in a job
classification to be determined by the Respondent, provided,
however, that Complainant shall receive for such job
classification the prevailing pay scale for rock truck drivers at
the mining operation to which he is transferred.
4. Should a rock truck driver's job become available at
such new mine location, Respondent shall off er such rock truck
driver's job to Complainant, if he remains in the Respondent's
employment at the time such rock truck driver's job becomes
available.
5. Respondent shall retain Complainant in Respondent's
employment for a period of at least one year from the date of his
reinstatement under this Order, provided, however, that
Complainant shall satisfactorily perform his job and comply with
Respondent 1 s work rules and provided that Respondent or its
affiliates remain in the coal business in Eastern Kentuckyo
6. Respondent shall pay to Leon Lo Hollon, Esq., counsel
for the Complainant, a reasonable attorney 1 s fee to be approved
by the Judge.
The decision entered on July 22v 1987v shall not be made
final until an order is entered herein approving an attorney 1 s
fee for Complainantvs attorney.

ti)~~'"'~
William Fauver
Administrative Law Judge

1669

AGREED TO:

~~
Complainant

Distribution:
Leon L. Hollon, Esq., P.O. Drawer 779, Hazard, KY 41701
(Certified Mail)
Stephen c. Cawood, Esq., Cawood & Fowles, P.O. Drawer 280,
Pineville, KY 40977 (Certified Mail)
slk

1670

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

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

22041

SEP 18 1987
LOCAL ONION 1810, DISTRIC'r 6,
UNITED MINE WORKERS OF
Ai.'\1ERICA ( UMWA) I

Complainant

COMPENSATION PROCEEDING

.

Docket No. LAKE 87-19-C

v.
Powhatan No. 6 Mine

NACCO MINING COMPANY,
Respondent
DECISION
Appearances:

Before:

Earl R. Pfeffer, Esq., Washington, DC, for
Complainant;
Thomas C. Means, Esq., Washington, DC, for
Respondent.

Judge Fauver
SUPPLEMENTAL DECISION ON COMPENSATION

This proceeding was brought by the UMWA under § 111 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seqof for compensation for miners idled by a
modificatTOi1 of a 104(d)(2) order.
A decision on the merits was entered on August 4, 1987v
holding that Complainant is entitled to the compensation claimed.
The decision provided the parties an opportunity to stipulate the
amount of compensation and provided thatp "This Decision shall
not be made final until a Supplemental Decision on Compensation
is entered herein.~
Based upon the record as a whole, including the partiesv
posthearing stipulation of the compensation due under the earlier
decision, this Supplemental Decision awards compensation and
orders payment of the compensation due plus interest.
ORDER

WHEREFORE IT IS ORDERED that Respondent shall pay a total of
$30,424.08 in compensation due the individuals shown in
Attachment A to this Supplemental decision, plus interest on the
amounts shown computed in accordance with the Commission's
decision in Arkansas Carbona, 5 FMSHRC 2042 (1983).

1671

The August 4, 1987, decision is hereby made FINAL along with
this Supplemental Decision.

lJJJu 'w--?/r-

"(A...
William Fauver
Administrative Law Judge

Distribution:
Earl R. Pfeffer, Esq., United Mine Workers of America, 900 15th
St., N.W., Washington, D.C. 20005 (Certified Mail)
Thomas c. Means, Esq., Crowell & Moring, 1001 Pennsylvania Ave.,
N.W., Washington, D.C. 20004 (Certified Mail)
kg

72

ATTACHMENT A
WAGES OF 87 HOURLY PERSONNEL PLACED
ON LAYOFF STATUS OCTOBER 6, 7, 8, - 1986

CHECK NO. & NAME
4250
4322
4366
4373
4490
4681
4504

4617
4629
4682

4267
4337
4365

TOTAL 3-DAY WAGES
$ 372.36
372. 36

C. Neff

W. Wain
G. Palmer

372.36
346.74
346.74
346.74
346.74
346.74
346. 74
346. 74
348.48

H. Cox

R. Parish
K. Roe

P. Barath
G. Makara
T. Ackerman
D. Dixon
R. Betts
K. Neal
J. Holskey

4307

J. Jeffers

4603

R. Wiggins

348.48
372.36
372. 36
353.82
372. 36
372 .36

R. ·Basham
J. Thornton
4484 R. Shreve
4422 T. Bri 11
4437 M. Mccollum
4311 R. Jeager
4622 J. Grear
4558 M. Ackerman
4657 T. Myers
4206 D. Cunningham
4220 J. Graham
4344 F. Keylor
4408 J. Warner
4478 D. Huohes
4358 L. Pa1mer
4243 T. Cunningham
4340 S. Gossett
4684 J. Douglass
4550 S. Benson
4429 R. Kline
4394 J. Scott
4238 T. Lowe
4395 P. Scott
4498 J. Broemsen
4362
4402

4246

G. Cline

11547

'Ii.

4616

J. Thoburn

431G
4269

J. Mellott

4430

M.

353.82

372.36
372. 36
372.36
372.36
353.82
362.76
362.76
362.76
337.14
337.14
337.14
338.88
337.14
337.14
337.14
337.14
337.14
337.14
337.14
337.14
337.14
345. 84
362. 76
362.76
344.22
344.22
362.76
344. 22
344.22
362.76
362.76
362. 76
362.76
362.76
344.22
337.14
369.96
369. 96

"yers

0. Campbell

4658

Garten
t. Parker

4470

T. Watson

4240 R. Major
4621 B. Hoski~son
4273 J. Faldoski
4320 G._Selmon
4391 J. Mercer
4359

R. Clift

4435
4202
4205

M. Bigelow
L. Wise
E. Bartnicki

1673

CHECK NO.

&

TOTAL 3-DAY WAGES

NAME

$ 369. 96

4420 G. Schuster
4625 G. Edwards
4555 R. Wil 1 lamson
4660 B. Loo9
4264 J. Yanos i k
4317 J. Mowery
4449 R. Wits berger
4546 R. Swa 11 i e
4225 M. Goddard
4403 B. Clary
4483 G. Garczyk
4551 B. Stacy
4552 B. Evans
4557 R. Jones
4607 s. Bos ton
4506 J. Eichhorn
4505 D. Eichhorn
4413 E. Christman
4627 K. McF ar 1and
4553 o. Davis
2869 G. Goddard
4469 c. Thompson
4618 M. Vo leek
4492 J. Arbogast
4319 w. Hol 1and
4619 R. Homan
4272 s. Hayes
4436 M. Zaborek
4361 B. Knight
4411

369.96
351.42
351.42
351.42
369.96
344. 34
344.34
344.34
344. 34
344 .34
344. 34
344. 34
344. 34
344. 34
360.24
344. 34
369.96
351.42
351.42
369. 96
369.96
369.96
369.96
351.42
351.42
351.42
351.42
351. 42
346.08

c. Carpenter

$30,424.08

TOTAL

1674

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

22041

SEP 18 \987
CIVIL PENALTY PROCEEDING

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

Doc'ket No. WEVA 87-66
A. C. No. 46-01433-03736
Loveridge No. 22 Mine

v.
CONSOLIDATION COAL COMPANY,
Respondent

CONTEST PROCEEDING

CONSOLIDATION COAL COMPAN¥,
Contestant

Docket No. WEVA 87-8-R
Order No. 2841392~ 9/9/86

v.

Loveridge No. 22 Mine

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

DECISION
and
ORDER OFJ5ISMISSAL
Appearances:

Therese I. Salus, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, nennsylvania, for the Petitioner/Respondent;
Michael R. Pee sh, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent/Contestant.

Before:

Judge Koutras
Statement of the Proceedings

The captioned civil penalty proceeding concerns a proposal
for assessment of civil penalty
led 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 $750 for an alleged violation of
mandatory safety standard 30 C.F.R. § 75.400, as stated in a
section 104 (d) (2} "S&S" Order No. 2841392 served on the respondent on September 9, 1986. The order was issued after the
inspector observed accumulations of float coal dust on the mine

1675

floor along a conveyor belt haulage entry.
The companion contest proceeding concerns Consolidation Coal's challenge to the
legality of the order.
The respondent/contestant filed a timely answer and contest,
and the cases were consolidated for hearing with several other
cases in Morgantown, West Virginia, during the hearing term
August 25-26, 1987. However, when the cases were called for
trial, the parties advised me that they had reached a settlement in the civil penalty case, and that upon apprqval of the
settlement, the contestant will withdraw its contest.
Under the
circumstances, the parties were afforded an opportunity to present oral arguments on the record in support of their proposed
settlement (Tr. 3-8). The proposed settlement was approved from
the bench, and my decision in this regard is herein re-affirmed.
Discussion
In support of the. prqposed settlement of the civil penalty
case, the parties presented information 9ertaining to the six
statutory criteria found in section llO(i) of the Act.
They
also discussed and disclosed the facts and circumstances with
respect to the issuance of the violation, and a reasonable
justification for a reduction of the original proposed civil
penalty assessment.
The proposed settlement requires the
respondent to pay a civil penalty assessment of $450 for the
contested violation in question.
Conclusion
After careful review of the pleadings filed by the parties,
and upon consideration of the arguments made in supoort of the
proposed settlement of the civil penalty case, I conclude and
nd that the settlement disposition is reasonable and in the
public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30,
the settlement is APPROVED.
ORDER
Respondent IS ORDERED to pay a civil penalty assessment in
the amount of $450 in satisfaction of the violation in question
within thirty (30) days of the date of this decision and order,
and upon receipt of payment by the petitioner, the civil penalty
proceeding is dismissed.
In view of the settlement dispositionof the c
penalty case, contestant's request to w~thdraw its
contest IS GRANTED, and it IS DISMISSED.

~Koft~
Administrative Law Judge

1676

Distribution:
Therese I. Salus, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Bldg., 3535 Market St., Philadelphia,
PA 19104 {Certified Mail)
Michael R. Peelish, Esq., ConsolidatioR Coal Company, 1800
Washington Rd., Pittsburgh, PA 15241 (Certified Mail)

1677

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 8020.4

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

SEP 211987

CIVIL PENALTY PROCEEDING
:

Docket No. L~KE 86-67
A.C. No. 11-00599-03631
Orient No. 6 Mine

v.
FREEMAN UNITED CO~L MINING
COMPANY,
Respondent

.

and
UNITED MINE WORKERS OF AMERICA,
LOCAL UNION NO. 1591,
Intervenor
DECISION
Appearances:

ore

Rafael Alvarez, Office of the Solicitor,
u.s. Department of Labor, Chicago, Illinois,
for Petitioner;
Harry M. Coven, Esq., Gould & Ratner,
Chicago, Illinois,
for Respondent;
Larry G. Eubanks, United Mine Workers of
America, Local Union 1591, Benton, Illinois,
for Intervenor.
Judge Morris

The Secretary of Labort on behalf of the Mine Safety and
Health Administration, charges respondent with violating a safety
regulation promulgated under the Federal Mine Safety and Health
Actff 30 U.S.C. § 801 et seq.v (the Act)o

A hearing on the merits took place in St. Louisv Missouri on
March lOu 1987.
Issues
The issues are whether a violation occurred.
If a violation
occurredv was it of a significant and substantial nature&
Finally,
if the citation is affirmed what penalty is appropriate.

1678

Contested Order
Order Number 2823383, issued under Section 104(d)(2) of the
Act, alleges respondent violated 30 C.F.R. § 75.316. The cited
regulation reads as follows:
§ 75.316

Ventilation system and methane
and dust control plan.
[Statutory Provisions]

A ventilation system and methane and dust
control plan and revisions thereof suitable
to the conditions and the mining system of
the coal mine and approved by the Secretary
shall be adopted by the operator and set out
in printed form on or before June 28, 1970.
The plan shall show the type and location
of mechanical ventilation equipment installed
and operated in the mine, such additional or
improved equipment as the Secretary may require, the quantity and velocity of air
reaching each working face, and such other
information as the Secretary may require.
Such plan shall be reviewed by the operator
and the Secretary at least every 6 months.
Stipulation
At the hearing the parties stipulated as follows:
1) The Federal Mine Safety and Health Review Commission
has jurisdiction over these proceedings.
(2) Freeman United Coal Mining Company is a subsidiary of
Material Service Corporation.
(3) Material Service Corporation is a subsidiary of General
Dynamics Corporation.
(4) Freeman United Coal Mining Company owns and operates the
Orient Noo 6 mineo
(5) The Orient No. 6 mine is an underground mine, which
extracts bituminous coal.
(6} The Orient No. 9 mine extracted 1,429,622 tons of coal
from February 26, 1985 to February 26, 1986.

1679

(7) Respondent extracted 6,471,856 tons of coal from
February 26, 1985 to February 26, 1986.
(8)

Respondent's business affects commerce.

(9)
Respondent's business will not be affected by the payment
of the proposed assessment of $950.00.

(10)

Orient No. 6 is a gassy mine.
(Tr. 8, 9, 68).
Summary of the Evidence
Secretary's Evidence

John D. Stritzel and Larry Eubanks testified for the
Secretary.
JOHN D. STRITZEL, a ventilation specialist, has been a coal
mine inspector with MSH~ since 1971. His specialty includes
reviewing plans and checking their adequacy (Tr. 15, 16). His
expertise includes training in Beckley, West Virginia (Tr. 16, 17).
Prior to working for MSHA he started the safety division for
respondent and served as a foreman trainee (Tr. 16-18).
On December 11, 1985 he conducted a technical ventilation
inspection at the Orient No. 6 mine (Tr. 18). The inspection team
consisted of Stritzel's immediate supervisor, Mark Eslinger, as
well as Larry Eubanks of the UMWA; Howard Hill represented
respondent (Tro 19 9 23) o
The inspector took notes and drew a map of the area (Tr. 20u
23v Exo P3)"
He stopped between room 31 and room 32 at the last
open crosscut in the intake entry. As he passed through the pullthrough curtain he observed a shuttle car being loaded at the face
(Tr" 24, 54)" He also observed the curtain down in the corner of
room 31" There was about a three-foot gap in the plastic curtain"
He did not know how long the gap had existed.
He then began to
take an air reading after first turning on the scrubber (Tr. 26-28,
64, 65)" The air reading was taken with an anemometer. ~/

~/ An anemometer is a device that measures the flow of air in feet
per minute (Tr. 29}.

1680

The inspector then directed the miners not to rehang the
curtain until he took his air reading {Tr. 29, 30). He calculated
the air flow at 1662.5 cubic feet per minute, {cfm), at the end of
the line curtain (Tr. 30, 31). He then advised Paul Little, the
section foreman, that a violation existed (Tr. 31). Little said he
thought there should be an air velocity of 3000 cfm in the entry.
Mark Eslinger said 5000 cfm was required (Tr. 32). An order was
issued~ the ventilation plan requires 5000 cfm (Tr. 33, Ex. P4).
The order was issued because the condition they found shortcircuited the air from the face area. The inspector issued a
104(d){2) 2/ order because the section foreman didn't know how much
air was required. The inspector believed it constituted an unwarrantable failure for the company to put in a man who did not
know the air requirement in the gassy mine {Tr. 34, 35). Little
stated this was his second day in the working section. His prior
experience was as a belt and construction foreman for 15 years
(Tro 35).
The company abated the violation by having the entire crew
repair the hole and reposition the curtain. They then had 5800 cfm
(Tr. 36).
The inspector concluded that the violation was S & S because
the volume of air was approximately a third of the required amount.
But he did not know how long this condition existed. An ignition
would
possible if a buildup of methane gas occurred in this
gassy
ne (Tro 41Q 42v 45)0
The inspector further
t that the
gravity of the violation could affect the two miner operators and
the buggy runnero
In additionv the operator 1 s negligence was high
(Tr. 42 u 43)
o

In considering whether a violation is S & s, various factors
to be considered include the duration and the seriousness of the
condition (Tro 45u 46). The inspector felt the condition described
in his order
sted for probably two minutes (Tro 46)o

2/ The parties stipulated that a predicate 104(d) order was issued
(Tr. 38, Ex. PS).

1681

The methane concentration in the section was not dangerous1
it measured one-tenth of one p~rcent (Tr. 47, 49).
It was necessary to turn the scrubber on so they would know
how much air was coming out at the end of the line curtain. The
scrubber pulls out about 1000 cfm {Tr. 62).
The shift started at 8:00 a.m. and the inspector's air reading
was taken at 9:35 a.m. (Tr. 63).
No reading was taken between the time the three-foot opening
was closed and the repositioning of the curtain (Tr. 65}.
The
inspector had not observed any excessive gaps in the curtain before
it was repositioned. The three-foot hole and the minimal air at
the end of the line curtain were the only violations (Tr. 66}.
LARRY G. EUBANKS is a coal miner for respondent.
He is
presently a laborer and pit committeeman for the UMWA (Tr. 71).
The witness was a member of the inspection team (Tr. 73).
While underground he made notes during the investigation (Tr. 75,
Ex. P7). During the inspection Little said the required air was
3000 cfm.
Eubanks saw the hole in the curtain.
1662 cfm (Tr. 76, 78).

The air reading was

Respondent's Evidence
Robert Newton and Howard

o. Hill testified for respondent.

ROBERT NEWTONu a shuttle car operator for respondenty is
presently unemployed"
On December 11, 1985 0 he was unloading coal
from the continuous miner" With his on-side standard shuttle car
he took coal to the tail belt (Tr. 88, 89, Ex. R2, R4)
The offside car will become entangled and will tear down curtains when
there is a lot of air coming through (Tr. 89).
The off-side buggy follows a different route than the on-side
buggy (Tr. 9lu Ex. R4).
It takes about four or five minutes between the time the buggy
is filled and until it unloads at the belt tail. When operating
the buggy the witness always looks back to be sure the curtain
hasngt been torn down.
The off-side car operator doesn't have this
advantage (Tr. 94). On his trip to the belt tail the curtain was
in good shape (Tr. 96).
After dumping his load and returning to
the mining machine he was sitting in the crosscut waiting for the
other buggy to leave room 31.

1682

While in that position he heard a "big snap." The other buggy
operator had to stop and unroll some of his cable (Tr. 97). Just
as the shuttle car passed in front of him he heard a noise like a
tear and the witness saw that the curtain was gone. In about three
seconds the witness then stopped his buggy, got his hammer and
nails and he was going to rehang the wadded-up curtain. At that
point the inspector directed him not to rehang the curtain (Tr. 98,
99, 101-104, 113, 115). About 16 or 18 feet of curtain had been
torn down. Newton estimated he could rehang the curtain in three
or four minutes (Tr. 99, 100). The cable of the off-side machine
will frequently become entangled with the curtain (Tr. 100).
Newton identified the position of the tear on Exhibit R4
(Tr. 112, Ex. R4). If he had not been stopped by the inspector,
the curtain would have been down no more than five or six minutes
(Tr. 122).
HOWARD O. HILL, a field ventilation engineer, is a retired
employee of respondent (Tr. 123). The witness, who helped develop
the ventilation plan, producted the pre-shift and shift reports
covering December 11, 1985 (Tr. 124, 125, 158). The reports indicated all of the faces and entries had been determined to be safe.
No indication of methane gas was found (Tr. 126, 127). The ventilation in the intake entry was 14,400 cfm and 12,000 cfm at the
point of return (Tr. 127, 129, Ex. R6).
The witness accompanied the inspection team and observed that
16 to 20 feet of the curtain was down.
The inspector's initial air reading was about 1600 cfm: the
next one was almost 6,000 cfm (Tr. 139). Mr. Stritzel and Eubanks
both said there was a 2- to 3-foot opening in the curtain. The
smaller opening would still leave enough air at the end of the
line curtaino But a 16- to 20-foot gap would have totally shortcircuited the air (Tro 13lu 132)0
In Hill's opinion 14,400 cfm of air on the intake is sufficiento Furtheru in his opinion, the inspector did not correctly
recreate the conditions for which he issued the citation CTr. 145)0
If the curtain had been restored by Mro Newcome the ventilation
would have been around 7,000 cfm (Tr. 146)~ Further, in Hill's
opinion the curtain was down less than five minutes (Tr. 147).
It is the practice in this mine to rely on intake air readings to
determine whether it is safe to cut coal at the face (Tr. 151).
In Hill gs opinion a 16- to 20-foot gap in the curtain would
create a hazard over a period of time (Tr. 153, 154). Methane
could build up to the point of ignition (Tr. 154).

1683

A violation exists if the continuous miner is cutting coal at
the face below 5,000 cfm {Tr. 159).
Discussion
The credible evidence adduced by the inspector shows that
he took an air reading after he observed a three-foot gap in the
line curtain. On the other hand, the credible evidence adduced by
respondent's witnesses establishes that the off-side shuttle car
became entangled in the line curtain at about the same time,
thereby tearing an 18- to 20-foot gap in the curtain. Under these
conditions the air velocity was measured at 1,662 cfm.
Respondent initially contends that the Secretary did not
establish a violation.
I disagree. The evidence is uncontroverted
that the air velocity measured 1,662 cfm at the end of the line
curtain.
A velocity of 5,000 cfm is required.
Accordingly, the
Secretary's evidence establishes a violation of the regulation.
Respondent further asserts that the inspector interfered with
the mining cycle when he ordered the employee to stop hanging the
curtain. Further, respondent argues that such action constitutes
a violation of MSHA's policies.
Respondent's arguments lack merit.
It can hardly be considered a part of any mining cycle for a shuttle car to tear down
a portion of the line curtain.
It accordingly follows it is not
proper, as the operator urges, to issue an advisory directive to
the inspector prohibiting such activities. Respondent cites no
MSHA directives and no case law in support of its view that the
inspector overreached his authority in prohibiting the shuttle car
operator from rehanging the curtain while he took an air readingo
Respondent further claims the inspector did not accurately
recreate the conditions he initially observed.
Further, the
operator claims the air measurement did not reflect a three-foot
hole in the blowing line curtaino
Respondent 0 s arguments are misdirected.
It is true that
.respondent 1 s expert witness testified that a three-foot gap in
the curtain would not cause the cfm to drop sufficiently to cause
inadequate airo
Howeveru the violation occurred when the air
velocity was below 5,000 cfm.
It is immaterial whether such
velocity was caused by a three-foot gap or a twenty-foot gap.
The Secretary contends that the violation herein was both
S & S and that it constituted an unwarrantable failure on the part
of the operator.

1684

I disagree.
An S & S 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."
30 C.F.R.
§ 814{d)(l).
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, 825 (April 1981).

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission 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: 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 United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further 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)0 We have emphasized that, in accordance
with the language of section 104(d)(l), it is the contribution of a violation to the cause and effect orahazard that must be significant and substantialo U.S.
Steel Mining Company, Inc., 6 FMSHRC 1866, 1868 (August
1984)u U.S.Steel Mining Company, Inc., 6 FMSHRC 1573q
1574-75 (July 1984).
In the instant case there was no methane hazard and the reduction of the air flow only lasted a short time.
An unwarrantable failure occurs if the operator is indifferent, shows a willful intent or if there is a serious lack
of reasonable care. U.S. Steel Corporation, 6 FMSHRC 1423, 1437
(1984). The record fails to establish the necessary factors to
establish unwarrantable failure on the part of the operator.

1685

The inspector's opinion was based, in part, on the fact that
the foreman did not know the amount of air required at the end
curtain. This factor, in and of itself, is insufficient to establish an S & S violation or an unwarrantable failure within the
Commission decisions outlined above.
Civil Penalty
in 30

The statutory criteria to assess civil penalties is contained
u.s.c. § 820(i).

The stipulation of the parties addresses the size of the
business of the operator and the effect of a penalty on its ability
to continue in business. The company has an adverse prior history
which is high: in the period ending September 3, 1986, the company
incurred 571 violations and was assessed $68,141. The operator was
negligent but the gravity of the violation was low since the violative condition existed only for a minimal period of time. The
company's good faith is apparent in that the inspector interrupted
the abatement effort. On balance, I deem a civil penalty of $200
to be appropriate.
Conclusions of Law
Based on the entire record and the factual findings made in
the narrative portion of this decision, I enter the following
conclusions of law:
lo

Respondent violated 30 C.F.R. § 75.3160

2o Citation 2823383 should be affirmed and a civil penalty
assessedo
ORDER
Based on the foregoing facts and conclusions of law I enter
the following order~
Citation 2823383 is affirmed and a penalty of $200 is
assessed.

...

Law Judge

1686

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 South Dearborn Street, Eighth Floor, Chicago, IL 60604
(Certified Mail)
Harry M. Coven, Esq., Gould & Ratner, 222 North LaSalle Street,
Suite 800, Chicago, IL 60601
(Certified Mail)
Mr. Larry G. Eubanks, United Mine Workers of America, Local 1591,
1101 East Grayson, Benton, IL 62812
(Certified Mail)

/ot

1687

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

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

SEP 22 1987

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 87-101
A.C. No. 42-00121-03634

v.

: Docket No. WEST 87-207
A.C. No. 42-00121-03644

UTAH POWER AND LIGHT COMPANY,
Respondent

Deer Creek Mine

UTAH POWER AND LIGHT COMPANY,
Contestant

CONTEST PROCEEDINGS
Docket No. WEST 87-4-R
: Citation No. 2504025; 9/3/86
Docket No. WEST 87-5-R
Citation No. 2504224; 9/3/86

v.

Docket No. WEST 87-6-R
Citation No. 2504226; 9/3/86
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Docket No. WEST 87-7-R
: Citation No. 2504227; 9/3/86
Deer Creek Mine
DECISION

3efore;

Judge Lasher

Based on the Secretary's motion, Utah Power and Light
Company agreeing, to vacate the four Citations involved in these
consolidated penalty/contest proceedings, and good cause appearng therefor
is ORDERED
~"

The Secretary's motion is GRANTED.

2o Citation Nao 2504025 (Dockets WEST 87-101 and WEST
7-4-R)
and the three Citations involved in penalty Docket WEST
87-207v 2504224 (Docket WEST 87-5-R)u 2504226 (Docket WEST 87-6-R
and 2504227 (Docket WEST 87-7-R) are VACATED, and
3.

These proceedings are DISMISSED.

~~;£4(£ 4,.~~~/1
Michael A. Lasher, Jr.
Administrative Law Judge

1688

Distribution:
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
Thomas C. Means, Esq., Crowell & Moring, 1001 Pennsylvania
Avenue, NW, Washington, D.C. 20004-2505 (Certified Mail}
Mr. Frank Fitzek, Miners' Representative, Utah Power and Light
Company, P.O. Box 310, Huntington, UT 84528 (Certified Mail)

/bls

1689

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

SEP 23 1987
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
JAMES C. GRAY, JR.,
Complainant

Docket No. KENT 86-55-D
BARB CD 85-47

v.
CHANEY CREEK COAL CORP.,
B. D. C. COAL CORPORATION, and
WOODS CREEK CORPORATION,
Respondents
ORDER APPROVING SETTLEMENT
AND DISMISSING PROCEEDING
Before:

Judge Maurer

On September 21, 1987, the Secretary submitted a settlement agreement, signed by all parties to this proceeding, including the individual complainant himself, for approval.
By the terms of the settlement agreement, the respondents
have agreed to pay to James C. Gray, Jr. 1 the total sum of
$16,365 in full and complete settlement of his claim.
There
is no longer any issue of reinstatement in the case.
Respondents have further agreed to expunge from Mr. Gray 1 s record
any reference to his discharge in this case.
The Secretary of
Labor has agreed to waive pre-judgment interest and the civil
penalty.
I have considered the agreement in the light of the
policies of the Act and conclude that it should be approved.

Accordingly, the settlement agreement IS APPROVED, and,
subject to the payment of the agreed amount, $16,365, to
Complainant Gray, this proceeding IS DISMISSED.

1690

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, u. s. De?artment of Labor, 801 Broadway, Rm. 280, Nashville, TN 37203
(Certified Mail)
Julie Muth Goodman, Esq., Miller, Griffin & Marks, P.S.C., 700
Security Trust Bldg., Lexington, KY 40507 (Certified Mail}
Billy Don Chaney, B. D. c. Coal Corp., Rt. 1, Box
Bernstadt, KY 40729 (Certified Mail)

yh

1691

~a6-B,

East

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

SEP 251987
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 86-250-M
A.C. No. 42-01423-05503
Triple C Gravel Pit

v.
TIMBER LAKES CORPORATION,
Respondent

DECISION
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Mr. Veigh Cummings, President, Timber Lakes
Corporation, Murray, Utah, pro se.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, charges respondent with violating safety
regulations promulgated under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seg., (the "Act").
After notice to the parties, a hearing on the merits took
place on January 7u 1987 in Salt Lake City 5 Utah" The parties
waived their right to file post-trial briefso
Issues
The issues are whether respondent violated the regulations; if
sou what penalties are appropriateo
Citations
Respondent is charged with violating four safety regulations.
Citation Noo 2644388 alleges a violation of 30 C.F.R. § 50.20.
The regulationu in its pertinent partu provides as follows:

1692

SUBPART C - REPORTING OF ACCIDENTS, INJURIES,
AND ILLNESSES
§ 50.20
Preparation and submi~sion of
MSHA Report Form 7000-1 - Mine Accident,
Injury, and Illness Report.

(a) Each operator shall maintain at the mine
office a supply of MSHA Mine Accident, Injury,
and Illness Report Form 7000-1. These may be
obtained from MSHA Metal and Nonmetallic Mine
Health and Safety Subdistrict Offices and from
MSHA Coal Mine Health and Safety Subdistrict
Offices. 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. If
an occupational illness is diagnosed as being one
of those listed in§ 50.20-6(b)C7), the operator
must report it under this part6 The operator
shall mail completed forms to MSHA within ten
working days after an accident or occupational
injury occurs or an occupational illness is
diagnosed. When an accident specified in
§ 50.10 occurs, which does not involve an occupational injuryu sections A, B, and items 5
through 11 of section c of Form 7000-1 shall be
completed and mailed to MSHA in accordance with
the instructions in § 50.20-1 and criteria contained in §§ 50.20-4 through 50.20-6.
§

Citation No" 2644389 alleges a violation of 30 C.F.R.
56.18020. The regulation provides as followsg
§ 56.18020

Working alone

No employee shall be assigned, or allowed, or
be required to perform work alone in any area
where hazardous conditions exist that would
endanger his safety unless he can communicate
with others, can be heard, or can be seen.

1693

Citation No. 2644390 alleges a violation of 30 C.F.R.
The regulation provides as follows:

§ 56.15002.

§ 56.15002

Hard hats.

All persons shall wear suitable hard hats when
in or around a mine or plant where falling
objects may create a hazard.
§

Citation No. 2644391 alleges a violation of 30 C.F.R.
56.14029. The regulation provides as follows:
§ 56.14029

Machinery repairs and maintenance.

Repairs or maintenance shall not be performed on machinery until the power is off
and the machinery is blocked against motion,
except where machinery motion is necessary
to make adjustments.
Summary of the Evidence
Richard H. White, a person experienced in mining, has been an
MSHA inspector for 10 years. In May 1986 he inspected respondent,
a sand and gravel operation (Tr. 8-10).
The inspection occurred because Ray Caillouette, an employee,
reported to the MSHA off ice that an accident had occurred. No
report had been filed at the office prior to May Sv 1986 (Tro ll)o
In checking at the site the inspector learned Caillouette had
been struck in the head by a 24-inch pipe wrench when he was
attempting to restart a tail pulley {Tr. 12, 13). After taking
some measurements and photographs the inspector interviewed
Caillouette (Tro 13u 14)o
After the interview he contacted Dave Cummings, the foreman
of the crusher operationo The inspector and Cummings then checked
the equipmento Cummings did not know if the accident had been
reported to MSHA" Caillouette was not back at work on May 6th;
he was still having problems with his head and still under a
doctorus care (Tr. 14 6 15)o

1694

The interview between Caillouette and the inspector formed the
basis for the citations in the case CTr. 16).
From his investigation the inspector concluded that on the
date of the accident Caillouette, who had 22 years of experience,
performed his routine duties. This included running the loader,
filling the feed trays and crushing rock (Tr. 21, 54).
During the day Cummings, the foreman, went into Salt Lake City
for supplies (Tr. 21). No other person was at the site (Tr. 22).
At about 4:00 p.m. the conveyor belt in front of the feed tray
stopped (Tr. 22, Ex. P, P4). Caillouette went below the hopper
which measures 17 inches from the outside wall to the structure of
the conveyor belt. With the aid of a 24-inch pipe wrench and a
four-foot cheater bar he tried to get the conveyor belt to move.
The conveyor belt was not shut off or blocked; it moved and the
pipe wrench struck him in the head (Tr. 23, 24, Ex. P4, P5).
caillouette said he was unconscious for 15 to 20 minutes.
Since his head was hurting he wanted to drive home. When he
came to work the next day he again became dizzy and returned home
(Tr. 25). Berg, who was present after the accident, is an independent truck driver hauling materials (Tr. 26).
The first citation was written due to the operator's failure
to report an accident within 10 days (Tr. 27>. MSHA Inspector
Wilson had given Form 7001 to the operator two years before
this accident occurred (Tr. 27). The citation was abated after
the company filled out the MSHA form (Tr. 29). The inspector believed the failure to notify involved a high degree of negligence
(Tr. 29).
Caillouette stated he was working alone at the time of the
accident; furtherv he had been working alone most of the day.
The inspector also considered the work to be hazardous (Tr. 30).
He was running the loader on a built-up bank1 also moving parts
can be hazardous.
In addition 1 the area below the feed trap was
confined and very hazardous (Tr. 31).
There was a telephone in the electrical control trailer van,
about 75 feet from the feed trap area (Tr. 32). Caillouette also
indicated it was a regular practice to work alone at that pit.
The foreman also knew Caillouette was working alone (Tr. 33).

1695

The inspector considered the "working alone" citation to be an
S & S violation. It was reasonably likely to cause an accident; if
it happened it was reasonably likely to be serious. Both of these
events came to pass (Tr. 34).
Caillouette spent some time in the hospital and he was unable
to work for a month (Tr. 35).
Accordingly, the inspector felt the
violation was reasonably likely to result in a reasonably serious
injury (Tr. 35). The "working alone" citation involved a high
degree of negligence because the practice was known to management
(Tr. 35).
Caillouette also related to the inspector that he was not
wearing a hard hat at the time of the accident (Tr. 35). There
could be falling objects in the area where he was working (Tr. 36,
Ex. Pl, P2). The foreman indicated hard hats were available.
A hard hat not only protects your head from falling objects but
protects your head when going into low areas. Failure to wear a
hard hat can cause head injuries, concussions and lacerations.
Such injuries are serious (Tr. 37, 38).
The Kolberg conveyor belt equipment had not been turned off
(Tro 39 8 40, Ex. Pl, P3, PS). He was repairing the equipment to
get it to run without turning it off or blocking it (Tr. 40).
If the power had been deenergized, locked out, or blocked against
movement, the accident would not have occurred. Caillouette and
Dave Cummings said it was routine practice to start the conveyor
belt by using a pipe wrench on the tail pulley without turning off
the power (Tro 41). The inspector felt this was an S & S violation
(Tr. 42)
Furtherv in his opinion the negligence was high (Tr. 43}
However the foreman stated he had instructed the men not to have
'!:he power on when they tried to start the equipment (Tr. 43)
o

o

Respondent is a three-man sand and gravel operation (Tr. 44).
The foremanv who was cooperativev immediately abated the violations
Tr o

45 0

4 7) •

The belt stopped because Caillouette placed an excessive
amount of material on it (Tro 5l)o
David Cummings and Veigh Cum.mings testified for respondent.
David Cum.mings runs the company and does the excavation work.

1696

o

Mr. caillouette, 37 years old, worked for Timber Lakes about
two and a half years (Tr. 76, 77, 79, 80). He was experienced in
doing mechanical work and also works in the pit. On the day of the
accident the County had been hauling gravel out of the pit all day
(Tr. 77, 79) •
Cummings talked to Caillouette the morning after the accident.
explained that when the belt stopped he left the power on and
tried to restart it with a cheater pipe. Cummings did not see any
visible signs of injury on the worker (Tr. 78). However, he did a
little complaining; he also worked the next full day.

He

The company has a strict rule prohibiting anyone from working
on equipment with power on. The company's practice is to clean up
such a problem with the power off (Tr. 80). Using a pipe wrench
does not solve the problem because the buildup remains (Tr. 80).
The company has made it clear to its employees that they do
not work alone. Hard hats are available on the property (Tr. 82).
They are required to be worn.
The witness did not file a report of the accident. The
citations were abated (Tr. 83). The pit has two or three workers
most of the time (Tr. 84).
One of the operator's complaints is that the company will
have the pit in good shape with one inspector. But another
inspector will cite the company for a violation previously passed
over (Tr o 8 4 11 8 5 ) o
Caillouette stated to the witness that he was wearing a hard
hat at the time of the accident (Tr. 86). Caillouette was very
reckless in the way he handled the situationo He should have first
turned the power off before cleaning it out with a shovel (Tro 87) o
Caillouette was hurt on a Wednesday and he received a drunk
driving citation on Fridayo But he was a good, hard worker
(Tro

90).

The number of workers at the gravel pit varies from two to
five (Tr. 93). The gravel is used in the company's cabin development and some is sold to the County.
About 10,000 tons are crushed annually (Tr. 94).

1697

On previous occasions Caillouette had turned off the power
before cleaning rock off of the equipment. Cummings had never
seen Caillouette go in by himself without turning off the power
(Tr. 100). Caillouette was also wearing a hard hat that morning.
The next morning he said he got a bump on the head but it wasn't
serious (Tr. 102). The witness told Caillouette he had done a
foolish thing (Tr. 103).
Veigh Cummings, the President and owner of Timber Lakes,
indicated Ray Caillouette had been shot in the head in Viet Nam.
When he was injured at the pit it affected his previous war injury
(Tr. 115).
The company felt that Caillouette was a willing worker
(Tr. 116).
The payment of a penalty would not make it impossible for the
company to continue in business. The company holds safety meetings
(Tr. 117).
The company has also received previous MSHA citations.
Evaluation of the Evidence
MSHA Inspector White indicated that the operator did not
report Ray Caillouette's accident. The event was known to the
company. Further, David Cummings confirmed that no report was
filed. Citation No. 2644388 should be affirmed.
The three remaining citations are mainly based on the hearsay
statement of Caillouette to the MSHA inspector.
Concerning Citation Noo 2644389 (working alone)g the statement
of Caillouette confirms that the employee was, in fact, working
alone. David Cummingsu the foreman, had gone to Salt Lake City for
supplies. The companyvs claim that it had a strict policy against
employees working alone was certainly not followed.
Citation Noo 2644389 should be affirmed.
Concerning Citation No. 2644390 (hard hats): the statement
of Caillouette was to the effect that he was not wearing a hard
hato However 0 I credit the contrary evidence of David Cummings
and Veigh Cummingso Hard hats were available and Caillouette
even hunted deer while wearing one. This evidence indicates his
dedication to the use of hard hats.
Citation No. 2644390 should be vacated.

1698

The final citation, No. 2644391, involves the failure to shut
off power or block off machinery against motion. The statement of
Caillouette establishes the violative condition, and it is apparent
that the accident would not have happened if the power had been
shut off. cunnnings stated that Caillouette's acts were against
company policy. However, the operator is strictly liable for
violations of the Mine Act. Asarco, Incorporated-Northwestern
Mining Department, 8 FMSHRC 1632 (1986).
Citation No. 2644391 should be affirmed.
An issue raised by respondent concerns the fact that one
MSHA inspector will give respondent a "clean bill of health."
But a later inspector will cite the company for a previously
existing violation. Events of this type can occur because MSHA
inspectors have varying degrees of expertise. A violative condition may be observed by one inPpector but not another. Further,
the legal defense of estoppel does not lie against MSHA in these
circumstances, Servtex Materials Company, 5 FMSHRC 1359, 1369
(1983).
CIVIL PENALTIES
The statutory criteria for assessing a civil penalty is contained in Section llO(i) of the Act, now 30 u.s.c. § 820(i). It
provides as follows:
(i)
The Commission shall have authority to assess
all civil penalties provided in this Act.
In
assessing civil monetary penaltiesu the Commission
shall consider the operator 1 s history of previous
violations 0 the appropriateness of such penalty
to the size of the business of the operator chargedv
whether the operator was negligent, the effect on
the operator's ability to continue in business, the
gravity of the violation 0 and the demonstrated good
faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.

Concerning the operator 1 s history of prior violations it
appears the company was assessed 10 violations for the two years
ending May 5 0 19860 But no dollar amount has ever been assessed
or been paido Accordingly, I consider that the operator has

1699

no adverse prior history CEx. P6). The company's tonnage and
its maximum of five employees causes me to conclude that it is a
small operator. Concerning negligence:
the company could have
reported the accident to MSHA as it knew about the event. The
negligence in the "working alone" citation is high since the
foreman should have known Caillouette would be alone if he left the
site. The company's negligence is low in the last two citations:
Caillouette's activities were contrary to company policy. The
assessment of a civil penalty, according to the President, will not
affect the company's ability to continue in business. The gravity
of the violations is high inasmuch as severe injury could occur.
Finally, the company demonstrated good faith in rapidly abating the
violations.
In view of the statutory criteria, I consider that the
penalties set forth in the order of this decision are appropriate.
Conclusions of Law
Based on the entire record and the factual findings made in
the narrative portion of this decision, I enter the following
conclusions of law.

1.

The Commission has jurisdiction to decide this case.

2. Respondent violated 30 C.F.R. § 50.20 and Citation
No. 2644388 should be affirmed.
3"

Respondent violated 30 C.F.R. § 56.18020 and Citation

Noa 2644389 should be affirmed"
Respondent did not violate 30 CaFoRo § 56.15002 and
Citation Noc 2644390 should be vacated"
5" Respondent violated 30 C.F.R. § 56.14029 and Citation
No" 2644391 should be affirmed"
Based on the findings of fact and conclusions of law I enter
the

following~

1700

ORDER
1. Citation No. 2644388 is affirmed and a penalty of $50 is
assessed.
2. Citation No. 2644389 is affirmed and a penalty of $300 is
assessed.
3. Citation No. 2644390 and all penalties therefor are
vacated.
4. Citation No. 2644391 is affirmed and a penalty of $400 is
assessed.
5. Respondent is ordered to pay to the Secretary the sum of
$750 within 40 days of the date of this decision.

Distributiong
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)

Mro Veigh Cummingsv Presidentu Timber Lakes Corporatiofi, 4609 South
State Streetv Murray, UT 84109
(Certified Mail)
/ot

1701

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

September 25, 1987

DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
BRYANT M. HATFIELD, JR.,
Complainant
v

Docket No. WEVA 87-156-D
HOPE CD-87-5
No. 1 Mine

0

SMITH BROTHERS CONSTRUCTION,
INC. ,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY
Judge Merlin

Before:

This is a discrimination proceeding ar1s1ng under section 105(c) of the Federal Mine Safety and Health Act of 1977.
30 U.S.C. § 815(c). On March 30, 1987, the Secretary of Labor,
on behalf of the complainant, Bryant M. Hatfield, Jr., filed this
complaint alleging violations of section 105(c)(l) of the Act.
30 U.S.C. § 815(c)(l).
The Secretary s complaint alleged inter alia that the Complainant was illegally discriminated aga1nst 1 ~or about
December 16 1986 when a foreman employed by the Respondent
threatened him with physical harm because of complaints
Mr. Hatfield expressed~ or intended to express, concerning
preshift belt examinations at Respondent's No. l Mine.
1

1

1

1

On August 59 1987 9 the Secretary and the Respondent, Smith
Brothers Construction 9 Inc. 9 filed a joint motion to approve
settlement for the violations involved in this case. The Complainant has signed a separate notice evidencing his approval of
the settlement agreement.
The joint motion to approve the settlement provides, in
relevant part:
Smith Brothers construction, Inc., admits
that Bryant M. Hatfield, Jr., was illegally
discriminated against, in violation of Section 105(c)(l) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(c)(l)
1702

(hereinafter "the Act"), on or about
December 16, 1986 when a foreman employed by
Smith Brothers Construction, Inc., threatened
Mr. Hatfield with physical harm because of
complaints Mr. Hatfield had made, or was
intending to make, concerning preshift belt
examinations at Respondent's No. 1 mine.

*

*

*

*

*

*

Smith Brothers Construction, Inc., agrees to
remove from Mr. Hatfield's employment records
all adverse remarks about his having exercised his statutory right to file or make
complaints alleging dangers on safety or
health violations under the Act.
Smith Brothers Construction, Inc., agrees to
pay a civil penalty of $200.00 for its vio1 ation of Section 105(c) of the Act. This
penalty is reasonable under the criteria set
forth at Section llO(i) of the Act and will
serve to effect the intent and purposes of
the Act. The amount of this penalty is
appropriate to the size of the business and
the history of previous violations. The
Respondent displayed a moderate degree of
negligence in failing to prevent interference
with Mr. Hatfield's exercise of his statutory
rights. Respondent's management assigned
extra duties to its foremen because of
complaints made by Mr. Hatfield 9 but no precautions had been taken to protect
Mr. Hatfield s rights in this potentially
volatile situation. Although Mr. Hatfield
was not intimidated by the threat made by
Respondent's foreman, it is reasonably likely
that the four other miners who were present
when this threat was made would be deterred
from exercising their right to make or file
complaints because of this action on the part
of Respondent. Good faith was demonstrated
by the foreman's subsequent verbal apology to
Mr. Hatfield, and by the Respondent's
decision not to arouse further animosity by
contesting this matter. There has been no
assertion by the Respondent that its
continued ability to conduct business would
be threatened by the payment of a civil
penalty in this case.
1

I accept the foregoing representations and approve the
recommended settlement. Accordinglyr the joint motion to approve

1703

settlement is GRANTED and the operator is ORDERED TO PAY $200
within 30 days from the date of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Ronald E. Gurka, Esq., Office of the Solicitor, U. S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Mr. Bryant M. Hatfield, Jr., General Delivery, Delbarton, WV
25670 (Certified Mail)
Mr. Sidney R. Young, Jr., President, Smith Brothers Construction,
Inc., P. 0. Box 1518, Williamson, WV 25661 (Certified Mail)
Mr. Richard C. Cooper, UMWA, P. 0. Box 839, Logan, WV
(Certified Mail)
I gl

1704

25601

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

22041

SEP 281987
CONTEST PROCEEDING

WESTMORELAND COAL COMPANY
Contestant

v.

..

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

.

UNITED MINE WORKERS OF·
AMERICA ( \JMWA),
Intervenor

.

Docket No. HOPE 18-236
Order No. 1 FTC; 2/10/78
Hampton No. 4 Mine

ORDER LIFTING STAY AND DISMISSING PROCEEDINGS
Contestant requests approval to withdraw its Contest in
the captioned case based upon an agreement between Contestant
and Respondent captioned "Statement of Modification and
Agreement and Motion to Dismiss" filed by Respondent on
August 11, 1987. The Intervenor has not filed any objection
to the requested withdrawal.
Under the circumstances hereinv permissi
withdraw
is granteda
29 CFR § 2700.lla The Stay Orde , previously
issued is accordingly now lifted and the case \. s therefore
dismissed.

l/
I .
Gary

M4 ick

Admini~t

(703) ~5

\

1705

Distribution:
C. Lynch Christian III, Esq., Jackson, Kelly Holt &
O'Farrell, P.O. Box 553, 1500 One Valley Squaqre, Charleston,
WV 25322 (Certified Mail)
Mary Lu Jordon, Esq., United Mine Workers of America, 900
15th St., N.W., Washington, D.C. 20005 '(Certified Mail)
James Crawford, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
npt

1706

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

22041

SEP 291987
DISCRIMINATION PROCEEDING

RICHARD W. PETERS, SR.,
Complainant

Docket No. LAKE 87-37-D

v.
MORG CD 86-19
BUCKEYE INDUSTRIAL MINING
COMP ANY I INC. I
Respondent
DECISION
Appearances:

Richard w. Peters, East Palestine, Ohio, pro se;
John Orr Beck, Esq., Lisbon, Ohio, for Respondent.

Before:

Judge Maurer

This case is before me upon the Complaint of Discrimination
filed by Richard W. Peters Under Section 105(c) (3) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seq., the "Act," alleging that Buckeye Industrial Mining
Company discriminated against him in employment after he had
an accident on the job by returning him to work as a laborer
at a reduced wage from that of a truck driver, which he was
prior to the accident.
The case was heard in Pittsburgh, Pennsylvania, on
July 6v 1987.
Both parties waived the filing of post-hearing
s.
The parties have stipulated that:
1.
Complainant has been an employee of the company since
October 22, 19680

2.
During his employment, he has been employed as a
laborer, pitman, "2400" dragline operator, truck driver, and
for short periods as a bulldozer and highlift operator.
3.
On July 14, 1986, complainant was involved in an
accident on the job when the truck he was driving rolled over.
4.
Following that accident, complainant was o
work
until on or about July 21, 1986, and then was returned to
work as a laborer and pitman at a reduced wage (70¢ per hour
less} from that of a truck driver.

1707

5.
Complainant worked as a laborer-pitman until October
1986. At that time he allegedly hurt his back on the job and
has been off work from the date of that injury until at least
the date of the hearing (July 6, 1987).
The essence of this pro se complaint is that the respondent
allegedly put the complainant-rn a lower-paying job on or about
July 21, 1986, in violation of Section 105(c) (1) of the Act 1J
in retaliation for him having the accident a week earlier, and
for making repeated safety complaints about the brakes on the
truck he was assigned to drive.
The complainant further
alleges that it was these faulty brakes that in fact caused
the accident.
The general principles governing analysis of discrimination
cases under the Act are well settled.
In order to establish a
prima facie case of discrimination under Section 105(c) of the
Act, a complaining miner bears the burden of proof in establishing that (1) he engaged in protected activity and (2) the adverse action complained of was motivated in any part by that
protected activity.
Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980), rev'd
on other grounds sub nom. Consolidation Coal co. v. Marshall,
663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of Robinette
v. United Castle Coal Co., 3 FMSHRC 817-18 (April 1981). The
operator may rebut the prima facie case by showing either that
no protected activity occurred or that the adverse action was
in no part motivated by protected activity.
If an operator
cannot rebut the prirna facie case in this manner, it nevertheless may defend affirmatively by proving that it also was
motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected
activi
aloneo
Pasulap supra~ Robinette, supra. See also
Eastern Assoco Coal Corp. v. FMSHRC, 813 F.2d 639u 642 (4th
Cir. 1987); Donovan v. Stafford Construction Co., 732 F.2d 954,
958-59 (D.C.
84); Boich v. FMSHRC, 719 F.2d 194, 195-96
(6th Cir. 1983) (specifically approving the commission's PasulaRobinette test}o
Cf. NLRB v, Transportation Management Corp.,
397(1983) (approving nearly identical test
Labor Relations Act).

1)

Section lOS(c) (1) of the Act provides in pertinent part as
follows:
"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 ... in any coal or other mine subject to
this Act because such miner ... has filed or made a complaint under or related to this Act, including a complaint notifying the
operator or the operator's agent ... of an alleged da.nger or
safety or health violation in a coal or other rnine •.. or because
of the exercise by such miner ... on behalf of himself or others
of any statutory right afforded by this Act."

1708

There is no question that Mr. Peters engaged in protected
activity by repeatedly complaining to his foreman, Art Brown,
about what he believed to be faulty and dangerous brakes on the
truck he was assigned to drive. He made numerous complaints
about the state of the brakes on his assigned truck in the two
or three weeks prior to the accident.
Each time his foreman
would call maintenance and one of the mechanics would come out
and check them. When the mechanic would get there, there was
invariably nothing the matter with the·brakes. Foreman Brown
and Peters both further testified that the driver pf the truck
on the other shift, one Gene Liber, never complained about the
truck's brakes and in fact denied having any problem when
specifically asked about the brakes by Brown or Peters. Nevertheless, reading the record as a whole, I find that it is
entirely possible that Peters was experiencing an intermittent
problem with the truck's brakes, and, in fact, inadequate
brakes may well have at least contributed to the July 14 accident.
Accordingly, Mr. Pe'ters has established the first element of a prima facie .case of discrimination, i.e., he has
shown to my satisfaction that he did indeed engage in protected
activity.
Foreman Brown testified that in every event, in response
to every complaint, even though he was beginning to wonder
about Peters' complaints, he called maintenance and had the
brakes checked out and they always checked okay. Peters
concurs with this testimony in substantial part.
I also find
Brown's testimony credible to the effect that he never told
Peters to operate the truck without brakes or with bad brakes,
but rather told Peters that if the brakes were bad, "take it
to the parking lot and park it".
I therefore find that
Mr. Peters has failed to establish the second element
a
prirna facie casev that isu
has not shown that the adverse
action by the operator was motivated in any part by the protected activityo
Even had Mr. Peters established a prima facie case herein,
I find that case rebutted by the operator's evidence of valid
non-protected business reasons for the removal of Mr. ?eters
as an equipment operatoro Mr. Robert J. Bacha testi ed that
the only p
of equipment Peters was ever able to satisfactori
operate for the company was a "2400" dragline, and that
particular machine is no longer
use.
Thereafter Peters was
tried out as a highlift operator, bulldozer operator and,
lastly, as an end dump operator (truck driver).
He had problems with operating the end dump truck independent of the July 14 accident as a result of which, according
to Bacha, the company removed him from the truck driving job
and re-assigned him as a laborer. After he had been operating
the end dump for several months there were numerous complaints

1709

from both the other operators and foremen that ~e worked too
slow, and that he would not back all the way up so as to dump
over the hill. Rather, he would dump where the bulldozer had
to follow-up after him and push his load off. Mr. Peters
himself acknowledged on the record that "the trouble I had
running some of the other equipment" might also have been
part of the reason he was re-assigned.
Specifically, I find the respondent's evidence credible
to the effect that Peters was removed from his job,as a
truck driver and re-assigned as a laborer due to his general
lack of competence at running machinery. Therefore, the reassignment of Peters had a legitimate business-related and
non-protected basis. Under the circumstances, the Complaint
herein must be dismissed.
·
ORDER
The Complaint of Discrimination herein is dismissed.

/

/1/l
.·' ; J /

(~

.

.

.

// . . I/ t/ / tt-i·v~

Roy ,J. Maurer

Ad~'strative Law Judge

stribution:
Richard Wo Peters, Sr., 5215 Jimtown Road, East Palestine,
OH 44413 (Certified Mail)
John Orr Beck, Esq., 26 N. Park Avenue, Lisbonv OH
(Certified Mail)

yh
1710

44432

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

September 29, 1987

CIVIL PENALTY PROCEEDING

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

Docket No. SE 87-91
A. C. No. 01-00328-03623
Bessie Mine

v.

JIM WALTER RESOURCES, INC.,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

The parties have filed a joint motion to approve settlements
of the two violations involved in this case. The total of the
originally assessed penalties was $272 and the total of the
proposed settlements is $40.
The motion discusses the violations in light of the six statutory criteria set forth in section llO(i) of the Federal Mine
Safety and Health Act of 1977. The subject citations were issued
for violations of respirable dust standards, 30 C,F,R,
§ 70,lOO(a), Both violations were designated as significant and
substantial on the citations, The parties represent that a reduction from the original assessment is warranted because the
employees who were working in the designated occupation were
wearing personal protective equipment in the form of respirators.
The parties further represent that MSHA will modify the subject
citations to delete the significant and substantial
characterization.
The rationale of the proposed settlements is justified by
Commission precedent. Under Consolidation Coal Company, 8 FMSHRC
890 (1986), aff d, 824 F.2d 1071 (D.C. Cir. 1987), a rebuttable
presumption ex s s that all respirable dust violations are significant and substantial, However this presumption may be rebutted
by establishing that miners in the designated occupation were not
exposed to the hazard posed by the excessive concentration of
respirable dust. The Commission specifically noted that the use
of personal protective equipment would satisfy this evidentiary
requirement. Based upon the representations of the parties, this
appears to be a case where the presumption is rebutted.
1

1711

In light of the fact that the miners in this case were wearing personal protective equipment, I find the violations were
nonserious and approve the proposed settlements. Accordingly,
the motion to approve settlements is GRANTED and the operator is
ORDERED TO PAY $4Q within 30 days from the date of this decision.

~~

Paul Merlin
Chief Administrative Law Judge

Distribution:
William Lawson, Esq., Office of the Solicitor, U. S. Department
of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL
35203 (Certified Mail)
Harold D. Rice, Esq., Robert Stanley Morrow, Esq., Jim Walter
Resources, Inc., Post Office Box C-79, Birmingham, AL 35283
(Certified Mail)
H. Gerald Reynolds, Esq., Jim Walter Corporation, P. 0. Box
22601, Tampa, FL 33622 (Certified Mail)
I gl

1712

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

September 29, 1987

CIVIL PENALTY PROCEEDING

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

Docket No. SE 87-95
A. C. No. 01-01247-03768

Petitioner

No. 4 Mine

v.

JIM WALTER RESOURCES, INC.,
Respondent

CONTEST PROCEEDING

JIM WALTER RESOURCES, INC.,
Contestant

Docket No. SE 87-56-R
Order No. 2810626; 2/4/87

v'

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

No. 4 Mine

Respondent

DECISION APPROVING SETTLEMENT
ORDER TO PAY
ORDER OF DISMISSAL
Before:

Judge Merlin

The parties have submitted a joint motion to approve settlements of the three violations involved in this case. The total
of the originally assessed penalties was $2,600 and the total of
the proposed settlements is $1,900.
The motion discusses the violations in light of the six
statutory criteria set forth in section llO(i) of the Federal
Mine Safety and Health Act of 1977, Order No. 2811815 was issued
for a violation of 30 C.F.R, § 75.1403-7K because an employee was
riding in the service cage while material was being transported
therein. This penalty was assessed at $500 and the proposed
settlement is for $350. The parties represent that a reduction
from the original amount is warranted on the basis that gravity
is less than originally assessed because the equipment being
transported consisted of 2 ram bar assemblies. These assemblies
are approximately 4 or 5 feet long and are approximately 10
inches in diameter. The assemblies ~re also very heavy and

1713

therefore would not easily slide across the floor of the cage.
Thus, the likelihood of a resulting injury is not as great as
originally thought. I accept the foregoing representations and
approve the recommended settlement.
Order No. 2810449 was issued for a violation of 30 C.F.R.

§ 75.200 because the approved roof control plan was not being

complied with. The roof control plan requires that when fully
grouted resin rods are used, that they shall be installed within
8 hours after the coal is mined or loaded, or the area shall be
supported with temporary supports. In this instance, the cutting
of the faces was concluded on the day shift at approximately 3:00
p.rn. The roof bolting machine then became disabled on the
evening shift and prevented the commencement of bolting
operations. The order was issued at approximately 1:00 a.m. on
the night shift. Once the roof bolting machine was repaired, the
operator bolted the No. 2 entry with resin pins and temporarily
supported the No. 2 entry. This penalty was originally assessed
at $1,100 and the proposed settlement is for $550. The parties
represent that a reduction from the original amount is warranted
because gravity is less than originally assessed in that the roof
remained intact, even after ten hours of cutting, which permitted
the proper installation of the resin bolts. I accept the foregoing representations and approve the recommended settlement.
Order No. 2810626 was issued for a violation of 30 C.F.R.
§ 75.303 because the operator failed to comply with pre-shift and

on-shift inspection requirements. The operator has agreed to pay
the originally assessed amount of $1,000. I approve this settlement and hereby DISMISS the corresponding Notice of Contest to
this order, Docket No. SE 87-56-R.
Accordingly, the joint motion to approve settlement is
APPROVED and the operator is ORDERED TO PAY 11,900 within 30 days
from the date of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
William Lawson, Esq., Office of the Solicitor, U. S. Department
of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL
35203 (Certified Mail)
Harold D. Rice, Esq., Robert Stanley Morrow, Esq., Jim Walter
Resources, Inc., Post Box C-79, Birmingham, AL 35283 (Certified
Mai 1 )

1714