JULX l9S8

COMMISSION DECISIONS
07-08-88
07-13-88
07-15-88
07-20-88

Westrick Coal Compa11y
Kaiser Coal Corno'ration of Sunnyside
Sec. L.;ibor for Ron.ni.e Beavers et al. & UMWA v.
Kitt Energy Corpo'i;ad.on
...,...,_ Westrick Coal Company

PENN 88-119
WEST 86-225-M
WEVA 85-73-D

Pg. 853
Pg. 856
Pg. 861

PENN 88-21

Pg. 872

WEVA 87-352
PENN 88-203-D
WEST 87-88
CENT 87-53-M
KENT 88-23-R
CENT 88-52-D
WEST 88-6-M
SE 87-128-D

Pg. 874
Pg. 880
Pg. 881
Pg. 887
Pg. 889
Pg, 89J
Pg. 892
Pg. 896

PENN 88-184-D
PENN 88-192-D
PENN 88-21
KENT 88-39-D
WEVA 88-8-R
WEST 88-144-D
LAKE 87-95-R
KENT 87-142-D
PENN 88-52-R

Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.

ADMINISTRATIVE LAW JUDGE DECISIONS
06-30-88
07-01-88
07-01-88
07-05-88
07-12-88
07-12-88
07-13-88
07-13-88
07-15-88
07-15-88
07-18-88
07-18-88
07-22-88
07-25-88
07-28-88
07-28-88
07-28-88

Consolidation Co.al Company
Dwight Baum v. Rochester & Pittsburgh Coal
Mid-Continent Resources, Inc.
F & E Erection Company, Inc.
Rivco Dredging Corporation
Nickie D. Ortega v~ Robert Trujillo
J.S. Redpath Corporation
Sec. Labor for Michael Price & Joe J. Vacha
v. Jim Walter Res.ources & UMWA
Terry Miller v. Benjamin Coal Company
Joseph M. Mazenko v. Benjamin Coal Company
Westrick Coal Company
James Bowling v. Woods Creek Coal Corp.
Consolidation Coal Company
Irvin L. Gagon v. Cyprus-Plateau Mining Corp.
Southern Ohio Coal Company
Stanley B.aker v. Kentucky Stone Company
The Helen Mining Company

913
914
915
916
917
922
923
930
Pg. 942

JULY 1988
Review was granted in the following cases during the month of July:
Dennis L. Wagner v. Pittston Coal Co., .Clinchfield Coal Co., MSHA, etc.,
Docket No. VA 88-21-D. (Interlocutory Review of May 24, 1988 order,
Judge Broderick)
Secretary of Labor, MSHA v. Westrick Coal Company, Docket No. PENN 88-119.
(Judge Weisberger, May 25, 1988 Default Decision)
Rushton Mining Company v. Secretary of Labor, MSHA, Docket No. PENN 88~99-R.
(Judge Weisberger, June 6", 1988)
Secretary of Labor, MSHA v. Westrick Coal Company, Docket No. PENN 88-21.
(Judge Weisberger, July 18, 1988, Default Decision)
Beaver Creek Coal Company v. Secretary of Labor, MSHA, Docket No.
WEST 88-145-R. (Judge Morris, June 20, 1988)
Secretary of Labor, MSHA v. Consolidation Coal Company, Docket No.
WEVA 87-343. (Judge Weisberger, June 20, 1988)
Review was denied in the following case during the month of July:
Secretary of Labor, MSHA v. Davidson Mining, Inc., Docket No. WEVA 88-82-R,
WEVA 88-168. (Judge Melick, June 21, 1988)

COMMISSION DECISIONS

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

July 8, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

Docket No. PENN 88-119

wESTRICK COAL COMPAi.'TI
BEFORE:

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

BX THE COMMISSION:
Respondent, Westrick Coal Company, after requesting a hearing to
contest an alleged violation, failed to respond to the administrative
law judge's pre-hearing and show cause orders. On May 25, 1988 the
administrative law judge issued a default decision. Respondent
filed a Petition for Discretionary Review on June 24, 1988.
The record does not reveal the reasons for the Respondent's
failure to respond to the judge's orders. We grant the petition and
vacate the judge's default decision in order to allow this operator,
who is apparently acting pro se, an opportunity to present the
reasons for these failure-S:--and for the Secretary to interpose any
objections to relief from the default decision. Should the judge
determine that relief from default is appropriate, he should proceed
with the civil penalty issues in this matter.

~~
~
F o r ; z r : Chairnran

~C-;(dA~C~
/.~ ~·~/(--i.._
·Richard V. Backley~rnmissioner

853

Commissione.r .Lastowka, disse.nting:
In my opinion the administrative law judge properly entered an order of
default in this proceeding.
Indeed, the persistent failure of Westrick Coal
Company to do anything to participate in the hearing process left the judge
no choice.
While I endorse the Commission's previously expressed preference
for dispositions on the merits over procedural defaults, that policy cannot
be without 1 imi ts.
I believe that to order further proceedings in the
circumstances of this case exceeds appropriate bounds.
The Mine Act provides a mine operator with an opportunity for a hearing
before this Commission on citations or orders issued by MSHA.
Westrick
exercised this right by requesting a hearing on citation number 269767. In
order to obtain the requested hearing, however, Westrick was required to
participate in the hearing process.
Wes trick igno.red every request by the
judge and the Secretary that it do so.
On March 22, 1988, the juc!ge issu·ed
an order directing that the parties confer and exchange information, and
noting that failure to do so could lead to default.
The record indicates
that Mr. Westrick received this order.
Westrick did not respond.. On March
25 the Secretary sent a letter to Mr. Westrick indicating that attempts to
contact him by phone had been unsuccessful and asking Westrick to call the
Secretary for purposes of complying with the judge's order. Westrick did not
respond.
On April 11 the Secretary recited the above chronology in a motion
filed with the judge requesting the issuance of a default judgment. Westrick
did not respond. On April 21 the judge issued an order directing Westrick to
comply by May 2 with his previous order or to show cause why it should not be
held in default for failing to respond.
The record shows that Mr. Westrick
received this order.
Westrick did not respond.
Accordingly, on May 25 the
judge issued a default order.
Mr. Westrick's petition for discretionary
review of the judge's default order offers no explanation whatsoever for
Westrick' s persistent failure to heretofore respond and participate in t;he
hearing process. */
In these circumstances the judge committed no error in ·defaulting
Westrick.
The judge and the Secretary have followed the proper course in
pursuing and resolving this proceeding, yet find themselves having to once
again expend their time and resources in an attempt to provide a hearing to a
party who declines .to participate in the hearing process. Because I believe
no error was committed below, I must respectfully dissent from the remand for
further proce~dings.

*I

Westrick's failure to offer any explanation for its failure to respond
distinguishes this matter from other default situations where colorable
claims of confusion over procedures or nonreceipt of ~erved documents have
been raised.
See, e.g., Rivco Dredging Corp., 10 FMSHRC 624 (May 1988);
Perry Drilling Co., 9 FMSHRC 379 (March 1987); Patroit Coal Co., 9 FMSHRC 382
(March 1987); Doug Connelly Sand & Gravel, 9 FMSHRC 385 (March 1987).

854

Distribution
Therese I. Salus, Esq.
Office of the Solicitor
U.S. Department of Labor
3535 Market Street
Philadelphia, PA 19104

Mr. Ray Westrick, Owner
Westrick Coal Company
Patton, PA 16668
Judge Avram Weisberger
Office of the Administrative Law Judge
2 Skyline, 10th Floor
Falls Church, Virginia 222041

855

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

July 13, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 86-225-M

v.
KAISER COAL CORPORATION
OF SUNNYSIDE

BEFORE:

Ford, Chairman; Backley, Doyle, and Lastowka, Commissio.ners
DECISION

BY THE COMMISSION:
In this civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S:C. § 801 et seq. (1982) ("Mine
Act"), the issue is whether Commission Administrative Law Judge August
F. Cetti erred in finding that Kaiser Coal Corporation of Sunnyside
("Kaiser") violated 30 C.F.R. § 75.205, a mandatory safety standard for
underground coal mines that requires "[w]here miners are exposed to
danger from falls of ••• ribs the operator shall examine and test the
.•• ribs before any work or machine is started." J_/ 9 FMSHRC 1164 (June
1987) (ALJ).
For the reasons that follow, we affirm the judge's
finding that Kaiser violated section 75.205.
The essential facts are not in dispute. On March 7, 1986, Jerry
Dimick, an employee of a mine equipment service company, arrived at
Kaiser's Sunnyside No. 1 mine to examine a malfunctioning stage loader.
Dimick was accompanied underground by Kaiser's General Longwall Foreman,
Duane Wood. Dimick and Wood traveled to the intersection of the 19th
Left Longwall Section and Crosscut No. 28, the area where the stage
loader was located. Before Dimick started to inspect the stage loader,

l/

30 C.F.R. § 75.205 restates section 302(f) of the Mine Act, 30
U.S.C. § 862(f), and provides: ·
Where miners are exposed to danger from falls of
roof, face, and ribs the operator shall examine and
test the roof, face, and ribs before any work or
machine is started, and as frequently thereafter as
may be necessary to insure safety. When dangerous
conditions are found, they shall be corrected
inunediately.

856

Wood visually examined the ribs at the worksite for signs of instability
or hazardous conditions, but he did not perform any physical test of the ·
ribs to verify their condition. Wood then proceeded beyond the stage
loader and away from Dimick.
In order to examine the stage loader, Dimick knelt between the rib
and the equipment, with his back to the rib. While Dimick was looking
at the stage loader from this position, two of Kaiser's section foremen,
Gary Kuhns and Darrell Leonard, walked by Dimick. Kuhns testified that
because of the position of the stage loader, he had to walk ~etween
Dimick and the rib to get by Dimick, and that there was no more than two
feet of space between Dimick and the rib. Tr. 91. Both Kuhns and
Leonard visually examined but did not physically test the rib as they
continued down the entry. While Dimick was kneeling between the rib and
the stage loader, a portion of the rib -- approximately six by four by
two feet in size -- detached and fell on him. Dimick died that evening
from injuries received in the accident.
Inspectors from the Department of Labor's Mine Safety and Health
Administration ("MSHA") arrived at the mine at about 6:00 p.m. on March
7, 1986, to conduct an investigation into the circumstances surrounding
the accident. Upon completion of the investigation on March 10, 1986,
an MSHA inspector issued to Kaiser a citation pursuant to section 104(a)
of the Act. ~/ The citation alleged a significant and substantial
violation of section 75.205 and stated:
A test of the rib condition was not conducted after
a visual examination was made for crosscut No. 28
and inby to the longwall face of the 19th Left
longwall section. A service representative was
performing an examination of a piece of equiptment
[sic] that was not operating properly. This person
was required to place himself in close proximity to
the lower rib. The untested rib fell striking the
victim and causing fatal injuries.,
The citation was abated on March 10, 1986, after all underground
employees at the mine were given hazard training on roof and rib
control.
Before the judge, Kaiser argued that it had complied with the
requirements of the standard by conducting a visual examination of the
~/

Section 104(a), 30 U.S.C. § 814(a), provides in pertinent part:
If, upon inspection or investigation, the
Secretary or his authorized representative believes
that an operator of a coal or other mine subject to
this [Act] has violated this [Act], or any mandatory
health or safety standard, rule, order, or
regulation promulgated pursuant to this [Act], he
shall, with reasonable promptness, issue a citation
to the operator .••.

857

rib. Kaiser asserted that, because of the particular rib conditions at
the mine, testing of the ribs would be ineffective in detecting flawed
ribs that might fall or could even create or enhance the possibility of
such falls. Kaiser argued that it was not required under the standard
to test the ribs in such circumstances. The judge rejected these
arguments, holding that the standard unambiguously requires both visual
~xamination and testing of ribs.
He further held that in view of the
conditions under which Dimick had to work, he was exposed to a danger of
a rib fall and that¢Kaiser was therefore required by the standard to
test the ribs. The judge also found that the violation was of a
significant and substantial nature, and he assessed the civil penalty
amount of $1,000 for the violation. J/ 9 FMSHRC at 1176-78. We
conclude that substantial evidence supports the judge's finding of a
violation of section 75.205.
There is no dispute that the Sunnyside No. 1 mine has a history of
unstable ribs. Witnesses for the Secretary and Kaiser agreed that
because of this Kaiser's miners and MSHA's inspectors have made it a
practice to walk in the center of the entries in order to position
themselves as far from the ribs as possible. At the scene of the fatal
accident, the travelway between the stage loader and the rib was
approximately seven and one-half feet wide, as contrasted with the
normal entry width of nineteen and one-half feet. Exhibit 2. In order
to work on the malfunctioning stage loader, Dimick had to position
himself two feet from the rib, on his knees and with his back to the rib
-- a position which left him vulnerable to rib falls from behind. In
addition, the inspector testified without dispute that approximately
fifteen minutes before the accident, the longwall shearing machine had
cut coal in the vicinity of the stage loader and that the shearing
process generally causes the ribs to loosen. Tr. 36-37, 104. We agree
with the judge that under these circumstances, Dimick was exposed to a
danger of a rib fall and that under the standard it was incumbent upon
Kaiser to test as well as to examine the ribs before work on the stage
loader commenced. In failing to test the ribs, Kaiser violated section
75.205. If Kaiser believes that there may be instances where the
testing of the ribs at the mine will diminish safety, we agree with the
judge that the remedy lies in petitioning the Secretary for modification
of section 75.205 pursuant to section lOl(c) of the Act, 30 U.S.C.
§ 81l(c).
9 FMSHRC at 1176-77. See Penn Allegh Coal Co., Inc.,
3 FMSHRC 1392, 1398 (June 1981).
Finally, Kaiser asserts that the section 104(a) citation was
issued because there had been a fatality, rather than because the
inspector believed that there had been a violation of section 75.205.
Kaiser argues that, as a result, the citation is invalid and should be
vacated. We have reviewed Kaiser's contention and find it to be without
merit. Section 104(a) provides that an inspector shall issue a citation
"[i)f .•• [he) •.• believes that an operator of a •.. mine ... has
violated .•. any mandatory health or safety standard."
See n.2, supra.
Our review of the evidence establishes that the section 104(a) citation

J/

Review of the significant and substantial finding or of the
penalty amount assessed has not been sought.

858

was issued because the MSHA inspector believed a violation of a
mandatory safety standard occurred. See Tr. 42-45. We find that the
section 104(a) citation was based on the inspector's belief that, in
failing to test the rib, Kaiser had violated section 75.205. That this
belief had its genesis in the investigation of a fatal accident at the
mine does not undermine the validity of the section 104(a) citation.
The decision of the administrative law judge is affirmed. 4/

~~

e.~~·

Richard V. Backley, Commissioner

J~~e.tf~t&1t;4

~/

Commissioner Nelson did not participate in the consideration of or
decision on the merits of this case.

859

Distribution
Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James A. Holtkamp, Esq.
Van Cott, Bagley, Cornwall & McCarthy
Kaiser Coal Corporation
50 South Main Street, Suite 1600
Salt Lake City, Utah 84145

860

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

July 15, 1988
SECRETARY OF LABOR,
on behalf of RONNIE D.
BEAVERS, et al.
and
UNITED MINE WORKERS OF AMERICA
Docket No. WEVA 85-73-D

v.

KITT ENERGY CORPORATION

Before:

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

DECISION
BY THE COMMISSION:
This case involves a discrimination complaint brought by the
Secretary of Labor on behalf of Ronnie D. Beavers and 25 other miners
against Kitt Energy Corporation ("Kitt"), pursuant to the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)(the "Mine
Act"). The issue presented on review is whether Kitt violated section
lOS(c) of the Mine Act, 30 U.S.C. § 815(c), when it laid off the
complainants who were surface miners, notwithstanding their seniority in
terms of length of service and their technical ability to perform the
remaining underground jobs, solely because they required additional
health and safety training under 30 U.S.C. § 825 and 30 C.F.R. Part 48

861

before they could perf9rm those jobs. l/

ll

Administrative Law Judge

Section 115 states in part:
(a) Approved program; regulations
Each operator of a coal or other mine shall have a
health and safety training program which shall be
approved by the Secretary. The Secretary shall
promulgate regulations with respect to such health
and safety training programs not more than 180 days
after the effective date of the Federal Mine Safety
and Health Amendments Act of 1977. Each training
program approved by the Secretary shall provide as a
minimum that-(1) new miners having no underground mining
experience shall receive no less than 40 hours of
training if they are to work underground. Such
training shall include instruction in the statutory
rights of miners and their representatives under
this [Act], use of the self-rescue device and use of
respiratory devices, hazard recognition, escapeways,
walk around training, emergency procedures, basic
ventilation, basic roof control, electrical hazards,
first aid, and the health and safety aspects. of the
task to which he will be assigned;
(2) new miners having no surface mining experience
shall receive no less than 24 hours of training if
they are to work on the surface. Such training
shall include instruction in the statutory rights of
miners and their representatives under this [Act],
use of the self-rescue device where appropriate and
use of respiratory devices where appropriate, hazard
recognition, emergency procedures, electrical
hazards, first aid, walk around training and the
health and safety aspects of the task to which he
will be assigned;
(3) all miners shall receive no less than eight
hours of refresher training no less frequently than
once each 12 months, except that miners already
employed on the effective date of the Federal Mine
Safety and Health Amendments Act of 1977 shall
receive this refresher training no more than 90 days
after the date of approval of the training plan
required by this section;
(4) any miner who is reassigned to a new task in
which he has had no previous work experience shall
receive training in accordance with a training plan
approved by the Secretary under this subsection in
the safety and health aspects specific to that task
prior to performing that task;
(5) any training required by paragraphs (1), (2)

862

Roy J. Maurer held that the complainants were "miners" within the
meaning of the Act and therefore were entitled to the training required
by the Mine Act and 30 C.F.R. Part 48. The judge concluded that Kitt,
by laying off the complainants, unlawfully interfered with their
statutory rights to training in violation of section lOS(c)(l) of the
Act. ~/ 8 FMSHRC 1342 (September 1986)(ALJ). The judge assessed a
or (4) shall include a period of training as closely
related as is practicable to the work in which the
miner is to be engaged.
(b) Training compensation
Any health and safety training provided under
subsection (a) of this section shall be provided
during normal working hours. Miners shall be paid
at their normal rate of compensation while taking
such training, and new miners shall be paid at their
starting wage rate when they take the new miner
training ....
30 U.S.C. § 825(a) & (b).
30 C.F.R. Part 48 implements section 115 of the Act and sets forth
the regulatory training requirements for miners.
~/

Section lOS(c)(l) provides in pertinent part:
Discrimination or interference prohibited;
complaint; investigation; determination; hearing
No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere
with the exercise of the statutory•rights of any
miner, representative of miners or applicant for
employment in any coal or other mine subject to this
[Act] because such miner, representative of miners
or applicant for employment has filed or made a
complaint under or related to this [Act], including
a complaint notifying the operator or the operator's
agent, or the representative of the miners at the
coal or other mine of an alleged danger or safety or
health violation in a coal or other mine ..• or
because such miner, representative of miners or
applicant for employment is the subject of medical
evaluations and potential transfer under a standard
published pursuant to section [101] ... or because
such miner, representative of miners or applicant
for employment has instituted or caused to be
instituted any p~oceeding under or related to this
[Act] or has testified or is about to testify in any
such proceeding, or because of the exercise by such
miner, representative of miners or applicant for

863

civil penalty of $1,000 for the violation of section 105(c)(l), awarded
the complainants back pay, and ordered Kitt to pay attorneys' fees.
8 FMSHRC at 1355; 9 FMSHRC 93 (January 1987)(ALJ). ]./ Because we
conclude that the judge granted rights to the complainants beyond the
text and intent of section 115, we reverse.
The facts are not in dispute. Kitt owns and operates the Kitt No.
1 Mine, an underground coal mine located at Philippi, West Virginia.
Both Kitt and the UMWA, the recognized representative of miners at the
mine, are parties to the National Bituminous Coal Wage Agreement of 1981
(the "Wage Agreement"). On August 29, 1983, as the result of a
legitimate reduction and realignment of the workforce, Kitt reduced the
total underground and surface workforce at the mine from 565 to 210
miners and the surface workforce from 91 to 59. On September 6, 1983,
Kitt laid off 43 more miners, reducing the total workforce to 167 miners
and the surface workforce to 15.
To determine which employees would be retained in the jobs
remaining after each layoff, Kitt was bound by the Wage Agreement.
Article XVII(b)(l) of the Wage Agreement provides:
In all cases where the workforce is to be reduced,
employees with the greatest seniority at the mine
shall be retained provided that they have the
ability to perform available work.
"Seniority" is defined in Article XVII(a) of the Wage Agreement as
"length of service and the ability to step into and perform the work of
the job at the time the job is awarded." In deciding whether a miner
had such "ability to step into and perform the work of the job, 11 Kitt
considered whether the miner met the "experienced miner" definitions of
30 C.F.R. Part 48, 30 C.F.R. §§ 48.2(b) and 48.22(b). ~/ Kitt deteremployment on behalf bf himself or others of any
statutory right afforded by this [Act].
30 U.S.C. § 815(c)(l).
}./
Before the judge, the United Mine Workers of America ("UMWA")
sought and was granted the right to participate in the case as an
intervenor.
~/

30 C.F.R. § 48.2(b) defines "experienced [underground] miner" as:
[A] person who is employed as an underground miner,
as defined in paragraph (a)(l) of this section, on
the effective date of these rules; or a person who
has received training acceptable to MSHA from an
appropriate State agency within the preceding 12
months; or a person who has had at least 12 months
experience work~ng in an underground mine during the
preceding 3 years; or a person who has received the
training for a new miner within the preceding 12
months as prescribed in § 48.5 (Training of new

864

mined that in order to be retained as an employee and to be assigned one
of the remaining jobs at the mine, a miner was required to have training
or prior·experience as defined by the regulations or to have been
employed underground on October 13, 1978, the effective date of the
training regulations (the "Grandfather Provision").
At the time of Kitt's reduction of its workforce, the complainants
were surf ace miners who sought to be employed in underground positions
remaining at the mine. Of the 26 complainants, 23 did not qualify as
"experienced miners" pursuant to 30 C.F.R. § 48.2(b) and therefore
required safety and health training before Kitt would consider them
eligible to work underground. Because they lacked the appropriate
underground training they were laid off by Kitt. (Three other
complainants qualified as "experienced miners" by virtue of the
Grandfather Provision, but were laid off due to Kitt's mistaken belief
that they were n2._t qualified.) The parties stipulated that had Kitt not
interpreted the Wage Agreement to require underground training, the
complainants would have been placed in the jobs that they sought. The
parties also agreed that all of the miners who were retained as Kitt's
employees in the underground positions sought by the complainants
qualified as experienced miners in accordance with Kitt's policy.
On or about September 7, 1983, MSHA advised Kitt that use of the
training provisions as a basis to lay off miners conflicted with MSHA's
training regulations and that the laid off employees should be recalled.
Kitt disagreed with MSHA's position, but in order to limit its exposure
to potential civil penalties and damages, Kitt abandoned its policy of
laying off surf ace miners who required underground health and safety
training. On September 13 and 14, 1983, Kitt recalled the complainants
to work and provided them with the necessary training to permit them to
work underground.
Subsequently, the complainants filed a complaint with MSHA
alleging that they had been unlawfully discriminated against when they
were laid off by Kitt. In addition, the UMWA challenged the experienced
miner policy through the arbitration procedure of the Wage Agreement.
On February 24, 1984, the arbitrator held that Kitt's interpretation of
the phrase "ability to step into and perform the work of the job" to
miners) of this Subpart A.
30 C.F.R. § 48.22(b) defines "experienced [surface] miner" as:
[A] person who is employed as a miner, as defined in
paragraph (a)(l) of this section, on the effective
date of these rules; or a person who has received
training acceptable to MSHA from an appropriate
State agency within the preceding 12 months; or a
person who has had at least 12 months' experience
working in a surface mine or surface area of an
underground mine during the preceding 3 years; or a
person who has received the training for a new miner
within the preceding 12 months as prescribed in §
48.25 (Training of new miners) of this Subpart B.

S65

include a requirement that a miner meet the "experienced miner"
definitions of 30 C.F.R. Part 48 did not violate the Wage Agreement~
On January 8, 1985, following an investigation of the
complainants' allegations, the Secretary filed a complaint with the
Commission on the complainants' behalf. The complaint asserted that by
laying off the complainants because they lacked underground training,
Kitt had violated section 105(c) of the Mine Act. The complaint
requested that Kitt be ordered to reimburse the complainants for all
backpay and damages resulting from the layoff. Judge Maurer decided the
case on the basis of stipulated facts and cross-motions for sununary
decision. In holding for the complainants, the judge focused upon the
fact that when the complainants were laid off they were "miners" within
the meaning of the Mine Act and therefore were entitled, in the judge's
view, to the training granted by section 115 and Part 48. The judge
stated:
The fact that all the employees of Kitt who were
considered for lay off were "miners" within the
meaning of the Act at the time the operator picked
and chose among them based on the federal training
requirements is ... decisive in this case. As
"miners", the complainants ... were entitled to
whatever training was required under section 115.
By laying off these complainants rather than
providing the required training-, the operator
interfered with their statutory right to training
under section 115.
8 FMSHRC at 1354. ~/
The Commission granted Kitt's petition for discretionary review.
The principal question on review is whether the judge erred in
concluding that the complainant~ enjoyed a statutory and regulatory
right to obtain the training that would have, entitled them to assignment
to the remaining underground jobs.
The general principles governing analysis of discrimination cases
under the Mine Act are settled. In order to establish a prima facie
case of prohibited discrimination under section 105(c) of the Act, the
complainant bears the burden of proving (1) that he engaged in protected
activity and (2) that the adverse action complained of was motivated in
any part by that activity. Secretary on behalf of David Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980), rev'd
on other grounds sub !!2!!!..:.. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (3rd Cir. 1981); Secretary on behalf of Thomas Robinette v. United

21

The judge also found that the three complainants who qualified as
experienced miners under the Grandfather Provision, but who Kitt
mistakenly believed would need training, were unlawfully discriminated
against because they were ·laid off based upon Kitt's "perceived lack of
federally mandated training" on the part of the miners. 8 FMSHRC at
1354.

866

Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). See also Eastern
Assoc. Coal Corp. v. FMSHRC 813 F.2d 639, 642 (4th Ci;:-1987), Donovan
v. Stafford Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Baich v.
FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically approving
Connnission's Pasula-Robinette test). Cf. NLRB v. Transportation
Management Corp., 462 U.S. 393, 397-413 (1983) (approving nearly
identical test under National Labor Relations Act.)
If the complainant does not establish that he engaged in a
protected activity, the discrimination complaint must fail. The judge
concluded that "[t]he insistence of the complainants on their right to
be provided training ... is activity protected by the Act. 11 8 FMSHRC at
1354. Thus, the initial question, and the one dispositive of this case,
is whether under the Mine Act the complainants had a protected right to
the training at issue here.
Section llS(a) of the Mine Act provides that "new miners having no
underground mining experience shall receive no less than 40 hours of
training if they are to work underground." The complainants in this
case were "miners" since at the time of the alleged act of
discrimination they fell within the broad definition contained in
section 3(g) of the Mine Act. §_/ Under the Secretary's regulations
implementing section 115(a) of the Mine Act, the complainants were "new
miners having no underground experience" because they did not have the
requisite degree of underground training or experience set forth in 30
C.F.R. § 48.2(b) and (c), supra. As a consequence, under the Mine Act
Kitt could not have transferred the complainants to underground
positions without providing them training. Instead, Kitt laid off
complainants in favor of other miners who already were qualified as
experienced underground miners and thus did not require additional
section 115(a) training. We conclude that in asserting that Kitt's
policy in choosing miners for layoff contravened the Mine Act,
complainants claim too broad a statutory right to operator-provided
training.
In Peabody Coal Co., 7 FMSHRC 1357, 1363 (September 1985), and Jim
Walter Resources, 7 FMSHRC 1348, 1354 (September 1985), af f' d sub nom-.Brock v. Peabody Coal Co., 822 F.2d 1134 (D.C. Cir. 1987), the- Commission concluded that mine operator policies to bypass for rehire
laid-off individuals because those individuals lacked current safety and
health training required by the Mine Act did not constitute
discrimination under the Mine Act. The Conunission determined that

£/

Section 3(g) of the Act provides:
For the purpose of this [Act], the term --

*

*

*

"miner" means any individual working in a coal or
other mine.
30 u.s.c. § 802(g).

867

section 115 of the Act grants training rights to "new miners" and that
laid-off individuals do not become entitled to the training rights of
section 115 until they are rehired as miners. Thus, since there is no
statutory right to operator-provided training for those on lay off
status, we concluded that an operator's refusal to rehire a laid-off
individual due to lack of required training does not violate the Mine
Act.
In Peabody and in Jim Walter the Commission stressed that the Mine
Act is a health and safety statute, not an employment statute. The
Commission noted that in enacting section 115 Congress was concerned
with preventing "the presence of miners .•. in a dangerous mine
environment who have not had .•. training in self-preservation and
safety practices." S. Rep. No. 181, 95th Cong., 1st Sess. 50 (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 197/, at 637-38 (1978). The Commission determined that
the rights of particular laid-off individuals to recall, including the
extent to which an operator can favor for recall fully trained persons
over persons with greater length of service, properly are within the
sphere of collective bargaining and arbitration. 7 FMSHRC at 1364;
7 FMSHRC at 1354.
On appeal, the United States Court of Appeals for the District of
Columbia Circuit affirmed the Commission's decision. Brock v. Peabody
Coal Co., supra, 822 F.2d 1134. In its decision the D.C. Circuit also
emphasized that the purpose of section 115 of the Mine Act and the
Secretary's training regulations is to protect the health and safety of
miners. 822 F.2d at 1146. The court summarized the purpose of s~ctions
115 and 104(g) ZI as follows:
Sections 115(a) and 104(g)(l) of the Act therefore
confer upon a "miner" the right not to "work" or to
be "employed" in the mines without having first
received the requisite training. Put more simply,
the Act accords a miner the right not to be placed
in a dangerous environment without the benefit of
proper safety training. In order to protect this
central statutory right, Congress in 1977 amended
section 105(c)( 1) and inserted section 104(g)(2),
thereby conferring upon a miner the corollary right
not to be discharged or otherwise discriminated
against either when he or she exercises the right by

ZI

Section 104(g)(l) of the Act, 30 U.S.C. § 824(g)(l), requires the
Secretary to withdraw from a mine any miner who has not received the
requisite safety training required by section 115 of the Act. Section
104(g)(2) provides that no miner withdrawn from a mine pursuant to
section 104(g}(l) of the Act shall be discharged or discriminated
against as a result of the withdrawal and further provides that such
miner shall not suffer loss of compensation during the period necessary
for such miner to receive the requisite safety training required by
section 115 of the Act.

868

refusing to work without having received the
required training or when the Secretary issues an
order withdrawing that miner from the mine.
822 F.2d at 1147 (footnotes omitted). The court stated that it could
not "infer from the Act that Congress intended privately-bargained
contracts to determine who is or is not a miner entitled to receive ·the
section 115 safety training." 822 F.2d at 1148. The court concluded by
holding that "[n]either the language Congress employed nor the
legislative history supports the Secretary's contention that Congress
intended to require 1 training neutral 1 hiring." 822 F. 2d at 1151.
We recognize that the complainants in the instant case, unlike the
complainants in Peabody, were "miners" at the time the alleged act of
discrimination occurred. This distinction, however, does not require a
different result because in the crucial and controlling respect,. this
case and Peabody-are the same. In both cases, the operator chose for
placement in underground mining positions persons who by training or
experience fully met the training requirements of section 115 of the Act
and the Secretary's implementing regulations. In placing trained miners
underground the operator did not violate the language of the Mine Act or
the safety and health objectives of the training requirements. To the
contrary, the Act's purpose was fulfilled. In addition, no miner was
discharged or otherwise discriminated against either because of a
refusal to work without having the required training or because of a
withdrawal from the mine pursuant to an order issued by the Secretary
under section 104(g) of the Act due to a lack of training. See 822 F.2d
at 1147. In sum, the Secretary's argument that section 115 of the Mine
Act mandates that "training neutral" employment decisions be made by
mine operators is just as wide of the mark in the present situation as
it was in Peabody, and must be rejected here for the same reasons.
In order to reach the result argued for by the Secretary and the
UMWA, we would be required to go beyond the Act and examine the Wage
Agreement. It is not the Connnission's province, however, to interpret
the rights and obligations mandated by the Act through an interpretation
of a private contractual agreement unless required to do so by the Act
itself. Peabody, supra, 7 FMSHRC at 1364. In holding that the
complainants as "miners" had the right to whatever training was required
to continue their employment, the judge misperceived the proper focus of
section 115. To require an operator to train miners for underground
work so that they, rather than other miners, would have the opportunity
for continued employment would transform section 115 from a health and
safety provision to an employment provision. This type of employment
issue is appropriately resolved through the collective bargaining and
grievance and arbitration process. Indeed, the issue of the validity of
Kitt's experienced miner policy was pursued through the contractual
grievance process and Kitt's position was upheld. Stip. 9. ~/
~/

The Secretary argues that Kitt's use of the experienced miner
policy to determine whom to retain as employees "will always bar miners
from being awarded jobs if training is required" and will prevent
training rights from ever "com[ing] into play." S. Br. 14. On the

869

Finally, we are left with the UMWA's argwnent that when enacting
section 115 Congress could not have intended that miners who would not
otherwise have been laid off would lose their employment as the result
of the application of the Mine Act's training requirements, Whatever
one might speculate as the intention of Congress in this respect, the
fact is that neither the language of the Mine Act nor the legislative
history support the assertion of the complainants. ~/ If there is a
problem, it lies within the Act itself, and any remedy is through the
collective bargaining process or, as Judge Ruth Bader Ginsburg stressed
in her concurring opinion in Peabody, through legislative amendment by
Congress. Peabody, 822 F.2d at 1152-53.

contrary, training rights always "come into play 11 when the experienced
miner policy is invoked. All miners chosen by Kitt to work had the
necessary health and safety training.
We also reject the Secretary's argwnent purporting to be based on
Wygant v. Jackson Board of Education, 476 U.S. 267 reh'g denied, 478
U.S. 1014 (1986), that Kitt's experienced miner policy unlawfully
interferes with the complainants' property interest in and expectation
of continued employment. Supp. Br. Sec. 2-6. That argwnent does not
consider the fact that the Mine Act is not an employment statute.
Moreover, in Wygant the Court was careful to note the difference between
unconstitutional and permissible infringements upon a worker's property
interest in a job.
~/

The conclusion that Kitt did not violate the Act makes it
unnecessary for us to address two additional issues raised in Kitt's
petition for discretionary review, i.e., that the judge erred in
assessing a civil penalty for the violation of section lOS(c) and in
awarding attorneys' fees to counsel for the UMWA. We note, however,
that the Secretary failed to include in the discrimination complaint a
proposal for a specific civil penalty for the alleged violation of
section lOS(c). Commission Procedural Rule 42(b), 29 C.F.R.
§ 2700.42(b), requires such a proposal.
See also Secretary on behalf of
Milton Bailey v. Arkansas Carbona Co. and Michael Walker, 5 FMSHRC 2042,
2044 (December 1983).

870

Accordingly, we reverse the conclusion of the judge that Kitt
discriminated against the complainants by violating their statutory
rights with regard to training. The judge's assessment of a civil
penalty and the judge's award of damages and attorneys' fees are
vacated.

Distribution
David M. Smith, Esq.
Maynard, Cooper, Frierson & Gale, P.C.
Twelfth Floor, Watts Bldg.
Birmingham, AL 35203
Linda L. Leasure, Esq.
Off ice of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Bronius K. Taoras, Esq.
Kitt Energy Corp.
Standard Oil Bldg., 7-D
200 Public Square
Cleveland, Ohio 44114
Mary Lu Jordan, Esq.

UMWA
900 15th Street N.W.
Washington, D.C. 20005

871

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

July 20, 1988

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION
v.

Docket No. PENN 88-21

WESTRICK COAL CO.

BEFORE:

Doyle, Lastowka, and Nelson, Commissioners

ORDER

BY:

Doyle, Lastowka, and Nelson, Commissioners

In this civil penalty proceeding respondent Westrick Coal Company
("Westrick") failed to timely respond to the administrative law judge 1 s
pre-hearing order. Accordingly, on June 30, 1988, the judge issued an
order requiring Westrick to respond by July 11, 1988 or to show cause
why the matter should not be dismissed. On July 11, 1988, Westrick, who
is acting without an attorney, wrote to the judge in response to the
show cause order. The letter was mailed on July 13, 1988, but was not
received by the judge until July 18, 1988. In the meantime, on July 15,
1988, the judge found Westrick in default, dismissed the proceeding, and
ordered Westrick to pay the assessed civil penalty. Because his
jurisdiction over this matter had ended with issuance of the default
order, the judge forwarded Westrick 1 s response to the Commission.

872

In order that the judge may consider Westrick's response to his
previous orders., we vacate the judge 1 s default order and remand for
further· proceedings.

For the Commission:

Distribution
Raymond Westrick
Westrick Coal Company
R.D. 1, Box 457
Patton, Pennsylvania 16668
Judith Horowitz, Esq.
Office of the Solicitor
U. S. Department of Labor
14480 Gateway Bldg.
3535 Market St.
Philadelphia, PA 19104
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

873

ADMINISTRATIVE LAW JUDGE DECISIONS

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

June 30, 1988

CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 87-352
A. C. No. 46-01436-03699

v.

Shoemaker Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Anita D. Eve, Esq., Office of the Solicitor,
U. S. Department of Labor, Pittsburgh,
Pennsylvania, for Petitioner.
Paul T. Boos, Esq., Consolidation Coal
Company, Wheeling, West Virginia, for
Respondent.

Before:

Judge Merlin

This case is a petition for the assessment of civil penalties filed by the Secretary of Labor against Consolidation Coal
Company for six alleged violations. All involve 30 C.F.R. Part
50.
Citation Nos. 2945442, 2945443, 2945446,
2945455, 2945456
These citations were originally assessed at $250 each. The
parties have agreed to settle them for $170 apiece. 1/ The
Solicitor advises that in these cases the miners faiTed to report
the alleged injuries promptly and the operator had reason to
believe the injury was nonoccupational and occurred off mine

1_1

The Solicitor's settlement motion erroneously includes
Citation No. 2945453. This item was deleted from the
assessment sheet filed with the Solicitor's penalty petition and was not in the petition itself. Obviously, it was
settled, paid, or otherwise disposed of previously. The
Solicitor has confirmed this by telephone.

874

property. The negligence factor is therefore, greatly reduced.
After considering these matters in light of six statutory
criteria set~forth in section llO(i) of the Federal Mine Safety
and Health Act of 1977, I conclude the settlements may be
approved.
Citation No. 2899820
This item involves an alleged violation of 30 C.F.R.
However, it was not settled and was heard on the
merits on May 17, 1988.

§ 50.20(a).

The subject citation reads as follows:
"The mine operator did not fill out and
mail to M.S.H.A. within 10 calander [sic]
days, Form 7000-1, "Mine accident, Injury and
Illness Report," for an occupational injury
that occurred to Donald Chamber on 12.5.85,
which resulted in lost work days."
Section 50.20(a), 30 C.F.R. § 50.20(a), of the regulations
provides:
(a) Each operator shall maintain at the
mine office a supply of MSHA Mine Acci~ent,
Injury, and Illness Report Form 7000-1.
These may be obtained from MSHA Metal and
~onmetallic 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 operator shall mail
completed forms to MSHA within ten working
days after an accident or occupational injury
occurs or an occupational illness is
diagnosed.

*

*

*

And section 50.2(e) 30 C.F.R. § 50.20(e) states:
(e) "Occupational injury" means any
injury to a miner which occurs at the mine
for which medical treatment is administered,
or which results in death or loss of consciousness, inability to perform all job
duties on any day after an injury, temporary
assignment to other duties, or transfer to
another job.

875

On December 5, 1985, Donald Chambers, a mechanic at the
operator's Shoemaker mine, left the mine because he was suffering
chest pains.~ Later that day he was admitted to Reynolds Memorial
Hospital where he subsequently was diagnosed as suffering a
myocardial infarction. Five days later he had a stroke. He was
then transferred to Western Pennsylvania Hospital where cardiac
catheterization disclosed a blockage in the anterior descending
branch of the left coronary artery which practically totally
occluded the vessel (Exhibit D). He was discharged from Western
Pennsylvania Hospital on January 4, 1986. The evidence also discloses that Mr. Chambers is a long-standing diabetic and a heavy
smoker (Tr. 23, 50). Mr. Chambers admitted that until the time
of the heart attack he smoked a pack a day or two packs every
three days (Exhibit N, p. 13; Tr. 50).
A dispute exists over the etiology of Mr. Chambers' c~est
pains. Hospital records upon admission to Reynolds Memorial
state that Mr. Chambers reported chest pains of three days duration (Exhibit B). In the discharge summary dated December 30,
1985, Dr. Baysal, Mr. Chambers' personal physician, stated that
upon admission the duration of symptoms were a little bit questionable, but nevertheless appeared to be of 24 hours duration
(Exhibit C, p. 1). Dr. Baysal also reported in the discharge
sum~ary that on December 16, Mr. Chambers and his family told him
that Mr. Chambers had been struck with a live electrical wire at
work on the day of admission and that the chest pains developed
about 1/2 hour to one hour following this incident (Exhibit C~ p.
2). In his subsequent deposition dated May 13, 1987, during the
workmen's compensation proceedings, Dr. Baysal changed his story
and stated that Mr. Chambers had told him about the electrical
shock one or two days after his hospital admission (Exhibit 0, p.
12). In his first workmen's compensation deposition dated
August 20, 1986, Mr. Chambers asserted he had had no chest pains
until after the electrical shock (Exhibit N, p. 6). But in his
second deposition, a year later on September 11, 1987, he stated
he had had indigestion for about three days before the heart
attack (Exhibit M, p. 6). He repeated the indigestion allegation
at the hearing in this proceeding, asserting that indigestion was
the pain referred to in the hospital admission reports (Tr. 24,
45). At the present hearing, Mr. Chambers admitted he had not
reported the alleged electrical shock to anyone at the mine
before he left (Tr. 16, 42).
·There is also a dispute in the medical evidence over whether
the electrical shock, assuming it did occur, caused Mr. Chambers•
heart attack. Or. Baysal expressed the opinion that the electrical shock had caused the infarct, noting that Mr. Chambers
previously had been asymptomatic from the standpoint of a preexisting heart condition (Exhibit 0, pp. 12 & 13). However,
Or. 3aysal admitted that Mr. Chambers showed no evidence of a
burn or coagulation necrosis from the alleged shock (txhibit 0,
p. 40). Dr. 8aysal also referred to the fact that a single
vessel disease is rare in a diabetic (Exhibit 0, p. 14).
876

Dr. Wurtzbacher, a consultant engaged by Consol to review the
medical evidence, expressed medical opinions contrary to those of
Dr. Baysal. Dr. Wurtzbacher stated that there was no medical
evidence of a direct relationship between the electrical shock
and subsequent myocardial infarction (Exhibit F). He further
stated that although multiple vessel atherosclerosis is seen in
most cases involving diabetics, a single vessel disease in
diabetics can be seen infrequently (Exhibit G). Finally, he
described the cardiac symptoms and failures as caused by diabetes
(Exhibit G).
The Secretary's allegation of a reporting violation is based
upon the assertion that Mr. Chambers suffered an electrical shock
which constituted a reportable injury under Part 50. The Solicitor also argues that even if there was no electrical shock, a
report should have been made because Mr. Chambers had chest pains
at the mine.
After a review of all the evidence I find that Mr. Chambers
was not shocked on December 5, 1985. I carefully observed
and listened to the testimony of Mr. Chambers and his co-worker
Mr. Mclaughlin regarding the alleged occurrence of an electrical
shock. I did not find them credible. As already noted,
Mr. Chambers changed his story several times and as the
operator's brief points out, his account became more elaborate
and detailed -- and more obviously self-serving, with each
telling. If the alleged shock were as severe as he alleged, it
is incredible he did not tell anyone about it at the time. The
same is true of Mr. McLaughlin's testimony, because he also told
no one about the alleged shock.
I find persuasive the contemporaneous evidence which shows that when admitted to the
hospital, Mr. Chambers did not relate anything about an electric
shock, but rather described chest pain of three days duration. I
also note the section foreman's testimony that on December 5
Mr. Chambers complained of chest pain upon entering the mine
before he began working (Tr. 96, 97). In addition, on the discharge summary dated December 30, 1985, Dr. Baysal, described
chest pain on admission as having been present for 24 hours and
said that Mr. Chambers did not allege an electrical shock until
December 16, ten days after his hospital admission (Exhibit C).
Dr. Baysal Ls subsequent turnabout with respect to when Mr.
Chambers first told him about the alleged shock, is not
convincing. Even apart from the fact that the Secretary failed
to produce Dr. Baysal to testify in these proceedings thereby
resulting in his unavailability for cross-examination by the
operator, Dr. Baysal •s contradictory statements fall far short of
providing a basis for the Secretary to sustain her burden of
proving a shock occurred. In addition, Mr. Chambers had no
evidence of burns and he never was unconscious (Tr. 36-38).
Based upon the foregoing, I conclude Mr. Chambers did not suffer

877

an electrical shock and therefore, the operator committed no
violation in failing to report it.
I reject the Solicitor's argument (p. 11 of her brief) that
even if an electrical shock did not occur, a violation occurred
because the operator was obliged to report Mr. Chamber's chest
pains. The MSHA publication "Information Report on 30
C.F.R. Part 50" February 1980 attached to the Solicitor's brief
as Government Exhibit 7, states in pertinent part at page 6:
"* * * The MSHA management concept on a
dividing line between injury and illness
states that an injury results from a recognizable single incident, i.e., a worker
harmed by a single incident would be injured.
* * *"

The Solicitor attempts to describe the heart attack as a
single event which had to be reported. But she offers no
evidence to show when the heart attack occurred and cannot equate
the· particular chest pains Mr. Chambers experienced at the mine
with the precise onset of the heart attack, since he had been
having such pains long before he went to work on December 5.
Therefore, these chest pains were not a recognizable single
incident within the meaning of the regulations and MSHA
publication.
Finally, the Commission's decision in Freeman Mining
Company, 6 FMSHRC 1577 (July 1984), is of no benefit to the
Solicitor here. In that case the Commission referred to an
injury as "an act" that damages, harms or hurts, 6 FMSHRC at 1578.
Once again, there is no such single act present in this case.
And the issue of causal nexus is not involved here as it was in
Freeman. If an electrical shock had occurred here, there would
be no question that it was work related, which was the question
presented in Freeman. If there had been a shock, the only
inquiry would be whether it had any of the prescribed consequences such as medical attention or lost work days. Even
assuming an electrical shock had occurred, I still would not find
a violation. Medical attention and lost work days resulted from
a heart attack, which the great weight of the evidence demonstrates was in turn caused by long-standing diabetes and heavy
smoking, not from the electric shock as the Secretary alleges.
·Accordingly, I conclude there was no violation and that
Citation No. 2899820 must be VACATED, and that the penalty
petition be dismissed insofar as this citation is concerned.
As indicated above, the briefs filed by counsel which were
most helpful, have been carefully reviewed. To the extent they
are inconsistent with anything herein, they are rejected.

878

ORDER APPROVING PARTIAL SETTLEMENT
ORDER TO PAY
ORDER OF PARTIAL DISMISSAL ANO VACATION
As set forth herein, the proffered five settlements for
Citation Nos. 2945442, 2945443, 2945446, 2945455 and 2945456 are
Approved and in accordance therewith, the operator is ORDERED TO
PAY $850 within 30 days from the date of this decision.
As further set forth herein, the Secretary's penalty
petition is DISMISSED insofar as Citation No. 2899820 is
concerned and that citation is VACATED.

-Pa u.l Mer l i n
Chief Administrative Law Judge
Distribution:
An i t a D• Eve , Es q • , Off i c e of the So l i c i t or , U• S• De part men t of
Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Paul T. Boos, Esq., Phillips, Gardill, Kaiser, Boos & Hartley, 61
Fourteenth Street, Wheeling, WV 26003 (Certified Mail)
Michael R. Peelish, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
I gl

879

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

DWIGHT BAUM,

JUL 1 1988.

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. PENN 88-203-D

ROCHESTER AND PITTSBURGH
COAL CO.,.
Respondent

PITT CD 87-16

ORDER OF DISMISSAL
Before:

Judge Weisberger

On June 23, 1988, Complainant filed a Motion to
Withdraw in which he moved to withdraw his request for
hearing in the above captioned matter. Accordingly, this
Motion is granted.
It is ordered that the above case be DISMISSED.
In consequence of this order, Respondents Motion for
Summary Decision is declared MOOT.

~~

Avram Weisberger
Administrative Law Judg,e
Distribution:
Mr. Dwight Baum, P.O. Box 64, Emeigh, PA 15738 (Certified
Mail)
Joseph A. Yuhas, Esq., Greenwich Collieries, P.O. Box 367,
Ebensburg, PA 15931 (Certified Mail)
slk

880

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

JUL 1 1988
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 87-88
A.C. No. 05-00301-03609

v.
MID-CONTINENT RESOURCES, INC.,
Respondent
and

.

Dutch Creek No. 1 Mine

UNITED MINE WORKERS OF AMERICA,
Intervenor
AMERICAN MINING CONGRESS,
Amicus Curiae
ORDER OF DISMISSAL
Before:

Judge Morris

The issues involved here arise from the federal Mine Safety
and Health Act, 30 u.s.c. § 801 et~, ("Mine Act" or "Act").
At issue is whether the judge should grant the Secretary's
pending motion to withdraw her complaint proposing a civil
penalty or, in the alternative, deny the Secretary's motion and
grant respondent's motion for declaratory relief.
A resolution of the issues requires a review of the
development and present status of this case.
PROCEDURAL HISTORY
1. On March 16, 1987, the Secretary filed a civil penalty
against respondent Mid-Continent Resources, Incorporated. The
complaint proposing the penalty arose from Citation No. 2213910,
issued to Mid-Continent pursuant to§ 104(a) of the Act.
The citation charges Mid-Continent with violating § 103Cf) of
the Act. The citation describes the following violative
practice:
On 5/13/86, Donald Ford, Safety Department refused to Robert
Butera, a designated representative of the miners, the right
to accompany Mike Horbatko, an authorized representative of

881

the Secretary. During an inspection of the Dutch Creek No.
1 Mine. The inspection was being conducted pursuant to 103
(a) of the Federal Mine Safety and Health Act of 1977.
2. Section 103Cf) of the Act, allegedly violated here,
provides as follows:
"(f) Subject to regulations issued by the Secretary, a representative of the.operator and a representative authorized
by his miners shall be given an opportunity to accompany the
Secretary or his authorized representative during the
physical inspection of any coal or other mine made pursuant
to the provisions of subsection (a), for the purpose of aiding such inspection and to participate in pre- or postinspection conferences held at the mine. Where there is no
authorized miner representative, the Secretary or his
authorized representative shall consult with a reasonable
number of miners concerning matters of health and safety in
such mine. Such representative of miners who is also an
employee of the operator shall suffer no loss of pay during
the period of his participation in the inspection made under
this subsection. To the extent that the Secretary or
authorized representative of the Secretary determines that
more than one representative from each party would further
aid the inspection, he can permit each party to have an
equal number of such additional representatives. However,
only one such representative of miners who is an employee
of the operator shall be entitled to suffer no loss of pay
during the period of such participation under the provisions
of this subsection. Compliance with this subsection shall
not be a jurisdictional prerequisite to the enforcement of
any provision of this Act.

3. On August 21, 1987 the judge stayed the proceedings
because he believed certain controlling cases were pending before
the Corrunission.
4. On October 16, 1987 the stay was dissolved and the case
subsequently set for a hearing.
5.
In due course the United Mine Workers of America C"UMWA")
was granted party status and the American Mining Congress,
C"AMC"), was granted leave to appear as Amicus Curaie.
6. Mid-Continent's amended answer to the Secretary's
complaint alleged, in effect, that the designation of the miners
representative was invalid (Paragraph 20, Amended Answer).
7. On November 23, 1987, the Secretary moved to withdraw his
petition for assessment of a civil penalty. His motion admitted

882

that after a review and investigation the representative of
miners' form was:
signed by two employees (one of wnom was then off-work,
permanently injured, had no intention of returning, and was
unable to return to active employment at Mid-Continent •••
In addition, his motion states that:
"[c]onsequently, the individual was not an active miner at
the time the representative of miners' form was filed with
the Mine Safety and Health Administration.
In light of
the truth of this allegation and the fact that only two
people signed the designation (see Respondent's Answer,
Exhibit No. 5), the citation and order have been vacated by
the Secretary."
8. Mid-Continent opposed the Secretary's motion to withdraw
his proposal for penalty and further moved for declaratory
relief.
9. Mid-Continent's opposition to the Secretary's motion
states, in part, as follows:
A) That a major issue raised by the proceeding is whether a
nominal number of workers can properly designate a union such as
the UMWA as their walk-around representative under 30 C.F.R. Part
40 when the designated union is not a union which represents
employees at the mine under the Labor Management Relations Act,
as amended, 29 u.s.c. §§ 141 et seg. Mid-Continent further
asserts the issue was exacerbated in this instance by virtue of
the fact that the UMWA was at the very time of the disputed
designation in the process of an unsuccessful effort to obtain
designation as the collective bargaining representative of
Mid-Continent employees by the National Labor Relations Board.
B) Further, Mid-Continent contends the Secretary's position
is that any two or more employees may execute a designation under
30 C.F.R. Part 40. As a result a non-employee union representative may gain access to Mid-Continent's mine, or any other mine,
regardless of whether that union has been designated a collective
bargaining representative of employees by the National Labor
Relations Board or whether the designated union is, in fact, or
in law, truly "representative'.
C) Mid-Continent further states that since AMc·is appearing
as Amicus Curiae the problems arising here are demonstrative of
similar situations throughout the industry.
D) Further, to allow the Secretary to withdraw his civil
penalty without allowing this matter to move forward would
deprive Mid-Continent of its efforts to date.

883

E) Mid-Continent also anticipates being confronted with the
identical issue in the near future.
The 12-month organizational/
election immunity created under Section 9(e)(2) of the National
Labor Relations Act, 29 u.s.c. § 159(c)(2) between Mid-Continent
and the UMWA expired in December 1987.
F) Further, Mid-Continent faces civil penalties under Section
llO(a) and (b) of the 1977 Mine Act and face a choice of either
complying with the Mine Act (which is in clear conflict with the
Labor Management Relations Act) or risk greater penalties under
Section 110 of the Mine Act, including the possibility of
criminal sanctions~
Accordingly, Mid-Continent should be
permitted the opportunity to litigate these matters rather than
risk penalty alternatives.
G) No claim has been made that the Secretary anticipates
reformulating her position on the propriety of a non-employee
union representative (who was not selected as a representative of
employees under the Labor Management Relations Act).
Specifically, Mid-Continent contends this circumvents the National
Labor Relations Board and obtains ostensible authority under the
Mine Act when said representative is not, in law or fact "representative". Thus, both the factual and legal issues involved
are significantly narrower than those involved in Climax
Molybdenum Co. v. Secretary of Labor, 703 F.2d 447, 453 (10th
Cir. 1983).
H) According to Mid-Continent a further issue is whether the
issuance of the citation contravened the prohibition of advance
notice under Section llO(e) of the Mine Act. This issue arises
from certain facts urged by Mid-Continent. Thus, if the case is
not allowed to proceed to declaratory relief then Mid-Continent
requests the matter be referred to the Department of Labor and
the Department of Justice for review of potential prosecution for
a violation of Section llO(e).
10. On December 23, 1987 the judge cancelled the scheduled
hearing in Glenwood Springs, Colorado and gave the parties 15
days to state their views as to whether Mid-Continent should be
permitted to proceed with its request for declaratory relief.
11. On March 29, 1988, the Commission issued its decision in
Emery Min~ng Corporation, 10 FMSHRC 276.
12. The parties were given an opportunity to comment on the
effect of Emery as it related to the facts involved in the
instant case. The Secretary and UMWA oppose Mid-Continent's
motion. Amicus Curiae, AMC, supports Mid-Continent's position.

884

Discussion
As a threshold matter it appears that the Commission has
jurisdiction in this case. Section llOCk) of the Act prohibits
compromise, reduction or settlement of proposed penalties, once
contested, without Commission approval. Commission Rule 30(a),
29 C.F.R. § 2700.30(a); Kocher Coal Co., 4 FMSHRC 2123 {1982).
It further appears the Commission, in its discretion, may
grant declaratory relief under section S{d) of the Administrative
Procedure Act, 5 u.s.c. § 554(e); Climax Molybdenum Co. v.
Secretary of Labor, 703 F.2d 447 (10th Cir. 1983).
The pivitol issue is whether the Commission should exercise
its discretion and grant declaratory relief.
Mid-Continent's prinicipal contention focuses on the point
that in Emery the miners' were represented by the UMWA. On the
other hand, Mid-Continent was union free at the time of the
citation contested herein.
It has, in fact, been union free
since November, 1981.
Emery clearly stands for the proposition that the rights of
miners' representatives broadly extends to non-employees. The
undersigned judge is obliged to follow the Commission rulings.
New Jersey Pulversing Company, 2 FMSHRC 1686 (1980). Accordingly, on this point Mid-Continent could not prevail.
Mid-Continent further contends that permitting access to its
mine by a UMWA representative would clearly conflict with the
National Labor Relations Act.
However, in Emery Mining Corporation, the trial judge
addressed an issue of whether Emery's waiver of liability policy
might violate the laws of the State of Utah. 8 FMSHRC at 1206.
On appeal the Commission observed that the proper concern was
whether Emery had violated the Mine Act. Specifically, the
Commission expressed no opinion on any question concerning state
law, 10 FMSHRC 289, fn. 11. It would accordingly appear that any
relief on this point would lie with the NLRB and not the
Commission.
Mid-Continent also argues that the Commission decision deals
with a union representative recognized under the NLRB law. However the decision does not address the inherent conflict between
the criminal provisions relating to prohibitions on prior notification of inspections in Section llO(e) of the Mine Act and the
necessity for prior notification to be given to a non-employee
walk-around representative, if the walk-around designation is to
be anything other than illusory.
It is claimed that the fortuity
of a union organizer and inspector both showing up at 6:30 a.m.

885

is the one fact in this matter which will rarely occur absent
prior notification. This problem, according to Mid-Continent,
can be ameliorated somewhat in a. situation where a union has
already been selected by employees. However, there is no way to
ameliorate it where, as here, the walk-around designation is
being used as a subterfuge to gain access to company property
contrary to the Labor-Management Relations Act.
I disagree.
The date and time of regularly scheduled mine
inspections, as mandated by the Act, would probably be common
knowledge to any interested miner at the site. In addition, in
any event it is the function of this judge to adjudicate issues
under the Mine Act, not the Labor Management Act.

For the foregoing reasons the motion of Mid-Continent for
declaratory relief is denied and I enter the following:
ORDER
1. The motion of respondent for declaratory relief is
denied.
2. The motion of the Secretary to withdraw his petition for
assessment of a civil penalty is granted.
3.

The proposed penalty is vacated.

4.

The case is dismissed.

n

~
:~s

dmini~~i~e Law Judge
Distribution:
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Edward Mulhall, Jr., Esq., Delaney & Balcomb, P.O. Drawer 790,
818 Colorado Avenue, Glenwood Springs. CO 81602
Mary Lu Jordan, Esq., Michael H. Holland, Esq., United Mine
Workers of America, 900 Fifteenth Street, N.W., Washington, D.C.
20005
Charles W. Newcom, Esq., Sherman & Howard, 633 Seventeenth
Street, Suite 3000, Denver, co 80202
Edward M. Green, Esq., and Mark G. Ellis, Esq., American Mining
Congress, 1920 N. Street, N.W., Suite 300, Washington, D.C.
20036
/bls

886

"'

'

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

JUL 5 1988
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 87-53-M
A. C. No. 41-00022-05501 B96

v.

Dallas Quarry & Plant

F & E ERECTION COMPANY, INC.,
-Respondent

.

DECISION
Appearances:

Rebecca A. Siegel, Esq., Office of the Solicitor,
Department of Labor, Dallas, Texas, for the
Secretary;
Michael Black, Esq., Burns and O'Gorman, San Antonio,
Texas, for Respondent

Before:

Judge Weisberger

Statement of the Case
In a telephone conference call initiated by the undersigned
with Counsel for both Parties on November 27, 1987, to determine
the status of the case, it was indicated that Counsel were
discussing a possible settlement of the case. On March 1, 1988,
the Parties submitted a joint Motion to Approve a Settlement
Agreement proposing a reduction in penalties from $8,000 to
$3,000. It was determined that the Motion, and accompanying
documents, did not contain sufficient information to allow
approval of the settlement. A hearing was scheduled for
April 12, 1988, in San Antonio, Texas, to allow the Parties to
present evidence in support of the Motion to Approve Settlement.
On April 12, 1988, the case was adjourned due to the sudden death
that morning of Respondent's Superintendent Steven Harless.
Subsequent to notice a hearing was held on May 19, 1988, on
the Motion to Approve Settlement.
I have considered the
representations, documentation, and testimony submitted in this
case, and I conclude that the proffered settlement is appropriate
under the criteria set forth in section llO(i) of the Act.

887

WHEREFORE, the motion for approval of settlement is GRA.NTED,
and it is ORDERED that Respondent pay a penalty of $3,000 within
30 days of this order.

£~

Avram Weisberger
Administrative Law Judge

Distribution:
Rebecca A. Siegel, Esq., Office of the Solicitor, U. s. Department of Labor, 525 South Griffin Street, Suite 201, Dallas, TX
75202 (Certified Mail)
Michael Black, Esq., Burns and O'Gorman, 750 Rittiman Road,
San Antonio, TX 78209 (Certified Mail)
dcp

888

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

JUL 121988
RIVCO DREDGING CORPORATION,
Contestant

CONTEST PROCEEDINGS
Docket No. KENT 88-23-R
Citation No. 2985271; 9/17/87

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

Docket No. KENT 88-24-R
Citation No. 2985272; 9/17/87
River Dredge Mine
Mine ID 15-12672

ORDER OF: DISMISSAL
Before:

Judge Maurer

It is undisputed that the two citations at bar (Nos. 2985271
and 2985272) were issued on September 17, 1987, and that Contestant did not notify Respondent or the Commission of its intent
to contest the citations until the MSHA office in Pikeville,
Kentucky received a notice of contest on October 21, 1987. The
Commission was not forwarded notification until November 16, 1987,
when it received the correspondence via the Department of Labor.
Under section 105(d) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 801 et seq., the operator must notify
the Secretary of its intent tO--contest a citation within
30 days of its receipt. Here, the Secretary was notified only
after the 30 days had elapsed. The contests were accordingly
filed untimely and are therefore DISMISSED. Alexander Bros.,
Inc., 1 MSHC 1760 (1979); Island Creek Coal Co., 1 MSHC 2143
(1979) •
Because this dismissal is on jurisdictional grounds, and
this Commission is without subject-matter jurisdiction over the
citations at bar in these contest proceedings, I find Rivco's
failure to contest the associated proposed civil penalty assessments because Mr. Wilson did not recognize or understand the
need to also file such a contest to be a moot point herein,
having no bearing on these two contest proceedings.

889

Regardless of Rivco's reasons for failing to contest the
associated civil penalty proposals, the fact is that a long
·line of precedent going back to the Interior Department's
former Board of Mine Operations Appeals holds that the 30-day
time limit prescribed in the statute for the filing of an
application for review is a statutory limitation on the
Commission's authority to review such an application and is
jurisdictional. Freeman co:al Mining Corp. I 1 MSHC 1001 (1970).
Therefore, even if I should find that Rivco's failure to
contest the associated civil penalty proposals was due to the
excusable neglect, mistake or inadvertence of the operator, it
would not serve to create subject-matter jurisdiction where
none heretofore existed, i.e., in these two contest proceedings.
Apropos that point, I also note for the record that unlike
the M. M. Sundt Construction Co., 1/ and Kelley Trucking Co., 2/
cases referred to by the Commission in its Order of May 26, 1988,
there are no civil penalty cases before me which could serve as
the potential vehicle to give equitable relief to the operator
herein should that be appropriate because the Secretary has
never filed and presumably does not intend to file a Complaint
Proposing Penalty concerning these two citations. Under those
circumstances, there is not now nor will there ever be created
a civil penalty case in which to litigate Rivco's objections to
these citations.

Distribution:
Gene A. Wilson, President, Rivco Dredging Corporation, P.O.
Box 702, Louisa, KY 41230 (Certified Mail)
G. Elaine Smith, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)

1/

2/

8 FMSHRC 1269 (1986).
8 FMSHRC 1867 (1986).

/fb

890

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

July 12, 1988

NICKIE D. ORTEGA,
Complainant

DISCRIMINATION PROCEEDING

v.

Docket No. CENT 88-52-D
DENV CD 87-6

ROBERT TRUJILLO,
(KAISER COAL COMPANY),
Respondent
ORDER OF DISMISSAL
Before:

Judge Broderick

On June 23, 1988, the Commission received a letter from the
complainant stating that he no longer wishes to proceed with the
above-captioned case.
Accordingly, this case is hereby DISMISSED.

~µgvck~
mes A. Broderick
Acting Chief Administrative Law Judge
Distribution:
Mr • Ni c ki e D• Ortega , 1401 Ar no 1 d , Raton , NM
Mai 1 )

8 7 74 0

(Certified

Mr. Robert Trujillo, Prep Plant Foreman/Dayshift, Kaiser Coal
Corp • of York Canyon , P. 0. Box 110 7 , Raton , NM 8 7 74 0
(Certified Mail)
I gl

891

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

JUL 131988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 88-6-M
A.C. No. 05-00571-05501 R83
London Mine

v.
J.S. REDPATH CORPORATION,
Respondent

DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Patrick J. Dougherty, Senior Mining Engineer,
J.S. Redpath Corporation, Mesa, Arizona,
for Respondent.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and Heal~h
Administration CMSHA), charges respondent, J.S. Redpath Corporation,
with ·violating a safety regulation promulgated under the Federal Mine
Safety and Health Act, 30 u.s.c. § 801 ~t seg., (the Act).
After notice to the parties a hearing on the merits was held in
Phoenix, Arizona on May 17, 1988.
The parties waived their right to file post-trial briefs and
submitted the case on oral argument.
Jurisdiction
J.S. Redpath Corporation is a subcontractor providing a service
for a mine owner.
In turn, the mine owner produces a mineral product
(Tr 24-26).
The foregoing facts establish jurisdiction.
Summary of the Case
§

Citation 2639288 charges respondent with violating 30 C.F.R.
57.15004, which provides as follows:

892

§ 57.15004

Eye Protection

All persons shall wear safety glasses,
goggles, or face shields or other suitable
protective devices when in or around an
area of a mine or plant where a hazard
exists which could cause injury to unprotected eyes.
~he

alleged violative condition, as modified, was described as

follows:
(2) Employees was not wearing safety
glasses prior to commencing rock bolting
underground. A eye injury could exist
without protecting the employee's eyes
with suitable protective devices.
(Exhibit P3)
Summary of the Evidence
On June 23, 1987 federal mine inspector Ronald Simpson inspected
a mine facility operated by Cobb Resources Corporation (Tr. 6-8>.
Employees of J.S. Redpath were doing development work in driving
drifts and raises (Tr. 8). When the inspector came on the working
area the man had just stopped drilling. The inspector was the last
one to reach the end of the drift. Upon checking, he asked if they
were using eye protection. They replied it was foggy and hard to see.
At least one of the miners had safety glasses but he wasn't wearing
them (Tr. 10, 11, 18 and 21). The driller didn't have any glasses
on his person.
The inspector left the area when the helper gave him
his glasses (Tr. 11).
Failure to provide eye protection can cause permanent eye damage
including loss of sight (Tr. 12, 14). The inspector presented
evidence for eye injuries incurred on a nationwide basis since 1981
(Tr. 15-17, Ex. Pl).
The workers did not acknowledge that they had drilled without
glasses.
The miner actually doing the drilling stated he had taken
the glasses off because of the foggy conditions (Tr. 22, 23). The
foggy conditions could have been definitely helped with use of the
ventilation bag (Tr. 23).

893

When he talked to the driller, the driller's helper pulled a
pair of glasses out of his pocket and gave them to the driller.
Harold Roy Walker, a retired superintendent, testified for
Redpath.
He indicated that as the inspection party approached miners
Sullivan and Herrera, the men took their glasses off. Sullivan put
his glasses inside his hard hat.
Herrera put his in his pocket
(Tr. 27, 28).
The inspector came in, quizzed the men .about the
glasses, and the two miners exchanged their glasses (Tr. 28).
The
inspector did not observe the two miners in the act of drilling
(Tr. 29-30).
Mr •. Walker, who has a hearing impairment, observed Herrera and
Sullivan switch glasses (Tr. 36-39).
Patrick John Dougherty, a senior mining engineer for Redpath,
testified that the company stresses a nonadversarial relationship
with regulatory agencies. Arguments with inspectors are avoided
(Tr. 45).
Witness Dougherty was not present on the day of the inspectLJ:ti
(Tr. 47).
Discussion and Evaluation
A credibility issue is presented here as to whether the miners
were wearing safety glasses.
On this issue I credit the testimony of
Redpath's witness Walker. He was the first to arrive at the point
where the drilling was taking place.
The inspector agrees he arrived
after the drilling had stopped.
The foggy conditions in the draft
merely confirmed why the miners removed their glasses when they
finished drilling.
In addition, the violative practice described by the inspector
in his citation does not constitute a violation of§ 57.15004.
The
violative condition is that the employees were not wearing safety
glasses prior to commencing rock bolting. The regulation requires
eye protection where a hazard exists, not prior thereto.
ORDER
Based on the foregoing findings of fact and conclusions of law
I hereby enter the following order:
Citation No. 2639288 and all penalties therefor are vacated.

Law Judge

894

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)
Patrick J. Dougherty, Senior Mining Engineer, 1745 South Alma School
Road, Suite 275, Mesa, AZ 85210 (Certified Mail)
/ot

895

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

JUL131988

.
.
.
.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
c
ADMINISTRATION (MSHA),
ON BEHALF OF
MICHAEL L. PRICE AND JOE
JOHN VACHA,
Complainants :
v.
JIM WALTER RESOURCES, INC.,
Respondent
and
UNITED MINE WORKERS OF
AMERICA (UMWA),
Intervenor

DISCRIMINATION PROCEEDING
Docket No. SE 87-128-D
No. 4 Mine

..
.
DECISION

Appearances:

Before:

Frederick w. Moncrief, Esq., and Thomas A.
Mascolino, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Secretary of Labor and Complainants;
Robert K. Spotswood, Esq., and John W. Hargrove,
Esq., Bradley, Arant, Rose & White, Birmingham,
Alabama, for Respondent; Robert H. Stropp, Esq.,
and Patrick Nakamura, Esq., Stropp & Nakamura,
Birmingham, Alabama, for Intervenor, and
Complainants.

Judge Broderick

STATEMENT OF THE CASE
On May 14, 1987, the Secretary of Labor (Secretary> filed an
application for an order requiring Respondent Jim Walter
Resources, Inc. (JWR) to temporarily reinstate applicants
Michael L. Price and Joe John Vacha to the positions from which
they were discharged on March 2, 1987. At the request of JWR, I
held a hearing on the application on June 29, 1987, following
which I ordered JWR to reinstate Price and Vacha to the positions
from which they were discharged and to pay back wages and other
benefits retroactive to June 8, 1987. The order was based on my
determination that the complaints of Price and Vacha to the
Secretary were not frivolously brought. My order was affirmed by

896

the Commission, Secretary/Price and Vacha v. Jim Walter
Resources, Inc., 9 FMSHRC 1305 (1987), and is presently on appeal
to the United States Court of Appeals for the Eleventh Circuit.
The Secretary filed a Complaint of discrimination on behalf
of Price and Vacha with the Commission on September 2, 1987. JWR
filed its Answer on September 25, 1987. There has been
substantial pretrial discovery, including depositions and
interrogatories by all parties. The United Mine Workers of
America (UMWA} intervened in the proceeding and took part in the
discovery and the hearing, as it did in the hearing on the
application for temporary reinstatement. Pursuant to notice, the
case was heard on the merits on March 21 through March 24, 1988,
in Birmingham, Alabama. The Secretary called Richard Brooks as
an adverse witness and William Leow, Donald Pennington,
Dan Green, William Glover, Kenneth Smith, Robert Galasso,
Jerry Whitley, Earl Odum, Danny Joe Nelson, Barry wood,
Dwight Cagle, Herbert Jefferson, John Parrot, Jerry Grogan,
Jeff Wilkes, John McVernon, Allen Robbins, Steve Anderson, and
Pearlie sue Gray as its witnesses. JWR called Christopher
Frings, Michael Hall, Robert Hendricks, William Beemer,
Dr. G.M.' Shehi, Richard Brooks and Michael Johnson. Brooks Rouse
was called as a witness by UMWA. The transcript of the Temporary
Reinstatement hearing and the exhibits introduced at that hearing
were admitted in this proceeding as Joint Exhibits. The
transcript includes the testimony of Joe John Vacha,
Michael L. Price, Thomas F. Wilson, Richard Brooks, Rayford
Kelly, William Carr, Richard Donnelly and Wyatt Andrews. The
exhibits include the opinion of arbitrator Samuel J. Nicholas
dated January 29, 1987, on the class action grievance filed by
UMWA concerning the drug testing program. They also include the
transcript of the hearing before arbitrator Nicholas, March 18,
1987, on the grievance of Price and Vacha, as well as arbitrator
Nicholas' opinion of April 13, 1987. All parties have filed post
hearing briefs. The parties have agreed that should I find a
violation of section 105(c} of the Federal Mine Safety and Health
Act (the Act), they will att~npt to agree on the appropriate
monetary remedies.
I have considered the entire record and the
contentions of the parties, on the bases of which I make the
following decision.
FINDINGS OF FACT
JWR MINING DIVISION
JWR operates five underground coal mines, a training
facility and a central shop, all located in the State of Alaba.ma.
It employs over 2800 people, including 2200 hourly rated workers.
The hourly employees are members of the UMWA; each mine has a
local union, and all are affiliated with Distrct 20 UMWA. ·rhe

897

UMWA and JWR are signatories to a collective bargaining
agreement (in effect through January 31, 1988), which governs
labor relations in the JWR mines.
It covers, among other things,
the establishment and the rights and duties of a Mine Health and
Safety Committee at aach mine.
It provides for dis~ipline and
discharge of employees for just cause.
·~
JWR'S SUBSTANCE ABUSE AND REHABILITATION & CONTROL PROGRAM
JWR perceived that it had a substance and alcohol abuse
problem among its employees because a number of hourly and
salaried employees had been discharged or had resigned in lieu of
discharge because of alcohol or drug abuse.
In addition JWR had
what it considered a relatively high accident rate and a high
rate of absenteeism, both of which it attributed in part to a
drug and alcohol problem among its employees.
It further
believed that it had high and escalating health care and workers'
compensation costs, which it believed were related in part to
substance and alcohol abuse.
In April 1986, Mike Gossett, President, District 20, UMWA,
contacted Richard Brooks, Vice President of Industrial Relationfr
JWR, request.ing a meeting to discuss the problem of employee drug
use in the JWR mines. A meeting was held in which Brooks and
Eddie Roberson, JWR Labor Relations Manager, represented JWR, and
Gossett and Gene Hyche, UMWA District Representative,
represented UMWA. All the participants agreed that a problem of
drug and alcohol abuse existed at JWR mines. They also agreed
that a joint union-management program would be preferable to a
company imposed work rule.
Brooks proposed that the program
include employee testing, education and rehabilitation and that
it include families of e!nployees. He also emphasized the
importance of it being confidential. Brooks prepared a draft of
a proposed prograill and gave a copy to the union representatives
in late July 1986. Some time later Brooks talked to Tommy
Buchanan, International Executive Board Member for District 20 of
the UMWA.
Buchanan told him he had sent his copy of the program
"to Washington." Later Buchanan told Brooks that the UMWA and
MSHA were working on a joint program in Washington.
Brooks
concluded that the UMWA was not interested in agreeing on a
substance abuse program at JWR. He thereupon modified the draft
of the program and prepared it as a company work rule.
A.t a companywide communications meeting on September 24,
1986, attended by m1wA District representatives and all the local
union presidents, copies of the .JwR substance abuse program were
distributed.
None of the union representatives indicated any
problem with the progra1n.
On October 16 and 17, 19 86, JWR called
a series of communications meetings at each mining location
during which the program was explained, and the union

898

representatives were advised that it would take effect January 1,
1987. In late October or early November 1986, a notice with a
copy of the plan was posted at each mine location, and each
employee received a copy of the plan with his or her paycheck.
In early January 1987, a special issue of the JWR magazine,
"Workings" was entirely devoted to the drug abuse program.
The Program is entitled Substance Abuse Rehabilitation and
Control Program.
It covers five typewritten pages and is divided
into four main topics: Employee Testing, Disciplinary Action,
Rehabilitation, and Education. It applies to all hourly and
salaried employees of JWR's mining division. The testing
provision is directed first to employees demonstrating a
reasonable cause for testing, including {a) anyone involved in
two or more mine accidents within a 12 month period, or involved
in one accident which injures another employee or causes property
damage; (b) an "irregular worker"; (c) an employee who comes
under an attendance control policy; (d) an employee on company
property who appears to be under the influence of drugs or
alcohol; (e) an employee who is indicted, arrested or convicted
under state or federal drug laws. Any employee who enters
rehabilitation and fails to cooperate, or tests positive during
the rehabilitation program shall be removed from rehabilitation,
and will be subject to random testing for one year. An employee
may voluntarily come under the program. Laid off employees shall
be tested as a part of the recall physical examination.
Section II.E. of the program provides as follows:
Any employee whose duties, whether by job title or by
reason of elected off ice, involve safetyi shall be
subject to random testing for substance abuse up to
four times per calendar year.
Physicals for hoistmen
shall also include testing for substance abuse. All
provisions of the program shall apply to employees in
this category.
Brooks intended that the phrase "employee[s] whose duties •
by job title . • . involve safety" encompassed safety

inspectors, dust and noise control supervisors, and section
foremen. These are all salaried positions. The only hourly
employees covered are union safety committeemen who come under
the phrase "ernployee[s] whose duties • . • by reason of elected
office • . • involve safety."
Tbe UMWA protested the unilateral implementation of the drug
abuse program.
It filed a class action grievance under the
contract, and an unfair labor practice charge with the National
Labor ~elations Board (NLRB).
Initially, the NLRB deferred to
the arbitrator appointed under the collective bargaining contract.
The arbitrator issued a decision on January 29, 1987, based on a

899

settlement reached by the parties: the program was recognized by
the Union, but the Union disagreed with itf the Union reserved
the right to.file grievances on behalf of employees made subject
to the program. Thereafter, however, the UMWA filed suit to set
aside the January 29 award and subsequent individual awards
(including an award denying the grievances of Price and Vacha)
involving the program.
The District Court granted summary
judgment in favor of JWR, and the case is presently pending
before the court of Appeals. Apparently, the General Counsel of
the NLRB has reconsidered her deferral to the arbitrator, and has
instituted or contemplates instituting an unfair labor practice
proceeding involving the substance abuse program.
IMPLEMENTATION OF THE PROGRAM
In late February 1987, Richard Brooks decided to randomly
test the safety-related employees in all the JWR Mines under
paragraph II.E. of the Program on March 2, 1987. He notified the
industrial relations supervisors of the decision and "[swore]
them to secrecy." The industrial relations supervisors were
directed to test all employees covered by paragraph II.E. on that
date. For various reasons, however, the urine samples were take~~
from the affected employees on March 2, 3, 6 and 9, and on
April 8. Prior to March 2, there was considerable discussion and
joking about the program among union employees and management
officials.
In the subject mine, much of the joking was directed
at Price.
In November 1986, Price told Wyatt Andrews, the mine
safety inspector and Bob Hendricks, associate safety inspector
that he had difficulty urinating in front of others. Hendricks
laughed and made a vulgar remark to Price.
In late November or
early December a urine specimen bottle W;:).S exhibited on Wyatt
Andrews' desk with a label on it reading "Mike Price UMWA."
Andrews laughed when Price saw the bottle.
It remained in the
safety off ice for at least two days before Rayford Kelly directed
that it be removed. Andrews and another safety inspector had on
two other occasions jokingly thrust an empty CSE cannister and an
empty coca cola can toward Price and Vacha telling them that they
were practice piss cups. Later a styrofoam cup with Price's name
and the notation "practice cup" written on it was displayed in
the safety off ice. All these incidents took place prior to March
March 2, 1987.
Price and Vacha worked on the day shift--7:00 a.m. to 3:00
p.m. At about 8:00 a.m. on March 2, Price was told that he would
have to submit a urine sample. Vacha was informed at about 11:30
a.m. At the end of their shift, they went to the office of the
Industrial Relations Supervisor of the No. 4 Mine, Rayford Kelly.
Urine samples were taken at the No. 4 Mine from four management
saf2ty personnel and the owl shift safety committeeman. The

900

samples were taken under the supervision of Andrews and
Hendricks, rather than Kelly.
In the other mines, the samples
were taken under the direct supervision of the industrial
relations supervisors.
Price and Vacha signed the release form and submitted union
prepared protest forms in Kelly's office. They asked whether
they would be paid for the time spent in the off ice and were
informed that they would not. Along with the other safety
committeemen, they filed grievances for this, and were ultimately
paid for one hour. Vacha then went to the bathroo1n with Andrews.
He told Andrews that he was unable to urinate. He was taking a
physician prescrl.bed medication, lomotil, for a nervous stomach
related to personal problems. One possible adverse reaction to
this medication is urinary retention. Vacha tried on a nwnber of
subsequent occasions but was unable to provide a urinary specimen.
He was clearly nervous and upset. Price also was unable to
urinate. He offered to go into the bathroom naked if he could go
alone, but this off er was refused. He tried a number of times to
provide the sample but was unable to do so. Water, coffee and
soft drinks were made available, but the requested urine samples
were not forthcoming. At about 7:00 p.m. (4 hours after
completion of their shift), Kelly told Price and Vacha that they.
would be given 30 minutes to provide a sample or be disciplined.
Vacha replied that "you [or they] can't make me piss." Price
asked whether they could return the next morning to give the
samples, but this was refused. At approximately 7:20 p.m., they
were given 5 minutes to produce a specimen or be discharged. At
7:30 p.m., they were each given formal five day suspensions with
intent to discharge because of insubordinate conduct, The
following morning, March 3, 1987, Price and Vacha had drug screen
tests at the Emergicare Center (J'iVR's contract physicians) and at
the Longview Hospital, respectively. The results, which were
negative, were submitted to JWR.
Many union members were upset over the drug testing program,
and a meeting took place prior to March 2, involving local union
presidents, District 20 officials and safety committeemen from
the No. 5 Mine. At this rneeting it was decided that if urine
specimens were requested, the committeemen should ask why, notify
management that the specimens were given under protest, and
provide the specimens if they could. There is no evidence that
Price and Vacha were at this meeting. However, it is clear that
they and lTiost of the other safety committeemen objected to the
implementation of the program, and believed that it was
discriminatory. They were also aware that if they failed to
furnish a specimen, they could be discharged.
Price and Vacha filed grievances over their discharge, and
the grievances were taken to arbitration under the collective

901

bargaining contract. The arbitrator, Samuel J. Nicholas held a
hearing on March 18, 1987. JW'R called Rayford Kelly and Richard
Brooks as witnesses. The Union called William Brooks, Dwight
Cagle, Joseph O'Quinn, Dennis Gilbert, Edward Smith, Joseph
Vacha, Michael Price and Dr. Daniel Doleys.
On Mar£h 19, 1987,
the arbitrator annouhced his decision denying the grievances on
the ground that the company had justifiable cause under the
contract for the discharges. He issued a written opinion on
April 13, 1987. In his opinion he concluded that Price and Vacha
could have given urine samples but "chose not to comply with
manage..'Tient's request." He further concluded that there was r.o
evidence of disparate treatment or discrimination against Price
and Vacha. He relied on the fact that 43 other similarly
situated employees "openly complied with management's request."
At the other JWR mines, some of the safety committeemen
tested were allowed to produce urine specimens without an
observer being present: in other cases, the observer was
immediately outside the bathroom: some produced the specimen
inside a closed toilet stall. In one mine, a committeeman who
was unable to produce a specimen when requested was permitted to
return at the end of his shift to do so.
In another instance a
miner being tested for cause Che had an accident), was permitted
to return thefollowing day to give a urine sample. However,
although the company had already notified the miner that it
intended to tiischarge him, he was reinstated the next day and
apparently was never actually tested.
SAFETY COMMITTEES
Article II, Section (d) of the Contract provides that each
mine shall have a Mine Health and Safety Committee made up of
miners "who are qualified by mining experience and training and
selected by the local union." The committee is given the right
to inspect any portion of the mine and report any dangerous
conditions to manage1nent.
If the coffil.nittee believes that an
imminent danger exists and recommends that the employer remove
all employees from the involved area, the employer must comply
with the recommendation.
Under the Act, the safety committeemen are considered
representatives of the miners. They may request MSHA inspections
under section 103(g), and normally accompany the MSHA inspector
during his physical inspections of the mine.
At the JWR mines, the safety committeemen are elected.
Committeemen choose their chairman, and select alternate safety
committee members.

902

Price and Vacha and their safety committee had the
reputation of being safety activists. In six years on the
committee, Vacha has filed from 75 to 100 Section 103(g)
complaints, and has participated in 50 to 75 safety grievances.
Price has annually filed approximately 25 Section l.03(g)
complaints and handled approximately 70 safety_grievances.
Vacha estimated that he spent approximately 50 percent of his
working time on safety committee duties; he was classified as a
miner operator, but actually worked on self-contained rescuers,
under Wyatt Andrews of the safety department. Price also devoted
about 50 percent of his time to safety committee work. He was
classified as a long wall helper. On one occasion while working
on the mining section, Vacha was removed from his continuous
miner operator job because he was thought to be shutting down his
machine because of face methane. On another occasion in June
1986, Price was told by JWR's vice-president of operations, Buck
Piper, that if he wanted to keep his job he "had better back off
on safety." Price was discharged in June or July 1986 "for
performing [his] job as a safety committeeman," but was
reinstated after arbitration. He was reprimanded in 1983 and in
1986, also while performing his duties as a safety committeeman.
JWR has blamed the safety committee for causing the mine to be
closed on different occasions, and for filing a large number of
103(g) complaints and safety grievances. After the discharge of
Price and Vacha on March 2, and a layoff affecting owl shift
committeeman Ed Smith, there were as of June 29, 1987, no elected
safety committeemen at the JWR No. 4 Mine.
INDUSTRY DRUG ABUSE PROGRAMS
On September 15, 1986, the President of the United States
issued an Executive Order, entitled Drug-Free Federal Workplace,
in which he stated that "[DJrug use is having serious adverse
effects upon a significant proportion of the national work force
and results in billions of dollars of lost productivity each
year." The Senate commerce Committee in Senate Report 100-43,
lOOth Cong. 1st Sess., to accompany s. 1041 filed April 10, 1987,
found that "Drug and alcohol abuse has become an increasing
problem in the workplace. Substance abuse leads to impaired
memory, lethargy, reduced coor..iination, and a whole series of
changes in heart, brain, and lung functions. These symptoms in
workers have resulted in lost productivity for American
businesses of as much as $100 billion a year, with significant
increases in employee acci-:1.ent rates, health care costs 1 and
absenteeism." A recent issue of the Duquesne Law Review has an
exhaustive commeat on compulsory drug screening in employment.
25 Duquesne Law Rev. 597 {1987). Tne problem is apparent; a
solution which recognizes the union's interest and the rights to
privacy and personal dignity of the employees is more difficult.

903

JWR and the UMWA officials involved with the JWR mines
agreed that a significant problem of substance abuse existed
among the employees in the JWR mines. They agreed that the
problem should be addressed by a joint Company-Union program.
They agreed that the program should include educati-0n, testing
and rehabilitation. The UMWA believed that the program should be
subject to collective bargaining. JWR, however, after some
cursory discussions with different union officials, concluded
that the UMWA was not interested in a joint program, and it
unilaterally promulgated the plan involved in this proceeding.
Prior to that time, the UMWA had not objected to, nor had it
agreed to the provision which became Section II.E. in the program.
Section II.E. (and much of the rest of the program} was drafted
by Richard Brooks. Brooks' experience with safety committeemen
was essentially limited to arbitration proceedings. He had
little direct contact with the safety committees in the
performance of their regular duties. There is no evidence that
Section II.E. or any other part of the plan was motivated in any
part by hostility to safety committee members.
I accept Mr.
Brook's testimony that he included safety committee members in
Section II.E. because he believed that they had such a high
degree of responsibility for safety in the mines.
Compulsory collection of urine for drug testing is "a highly
invasive experience" CR571}. This fact was recognized by the 5th
Circuit Court of Appeals in the case of National Treasury
Employees Union v. VonRaab, 816 F.2d 170, 175 (5th Cir. 1987):
·rhere are few activities in our society more personal
or private than the passing of urine. Most people
describe it by euphemisms if they talk about it at all.
It is a function traditionally performed without public
observation; indeed its performance in public is
generally prohibited by law as well as social custom.
Collection of urine under the observation of co-workers or
supervisors is especially uncomfortable for most people. 'l'he
employees at JWR believed that compulsory drug testing was in
some way accusatory, that being singled out for testing without
cause was an invasion of privacy and degrading. One employee who
was tested because she reported two back injuries within a year
"felt humiliated and embarrassed about" being required to gi•1e a
urine specimen. (R627) Recent news media stories have also
created the fear in the minds of many JWR employees that the
results of testing are not completely accurate, thus raising the
specter that they might be falsely and unfairly branded as drug
users. The evidence shows however that the drug screen testing
used by JWR--an initial screen and a confirmatory screen--is
better than 99 percent accurate. This, of course, presumes that

904

the collection procedures including chain of custody are strictly
followed.
A substantial number of JWR employees, including most
members of the safety committees, believe that singling out
safety committee members for random testing is_ unfair. Some
safety committee members have resigned because of the program. A
number of others have considered resigning. Miners have refused
to run for safety committee positions because they would be
singled out for random testing four times per year. Steve
Anderson who resigned from the safety committee testified:
[The drug abuse program] is just too much room for
harassment. You try to do your job and if you write a
103g or you file a complaint or the Federal, something
like that if they don't like it, they got too much room
for harassment just of the safety committee, that four
times a year. (R.618)
The bashful bladder syndrome is a psychiatric illness--a
social phobia--in which a person has a fear of urinating in
public restrooms or in any place where the person is, or fears
he/she is, in public view. Approximately one person in three
hundred of the general population has this condition. However,
stress, fear or anger can affect a person's ability to provide a
urine specimen, even though he/she is not suffering from a
clinical case of bashful bladder syndrome. From one to three
percent of the population may experience individual episodes in
which he or she has great difficulty in urinating because of- some
anxiety or pressure type situation.
I have considered the testimony before me of Dr. George
Michael Shehi, and the record of the testimony of Dr~ Daniel M.
Doleys before the arbitrator. I have also considered the
testimony -of Price and Vacha. I find as facts that neither Price
nor Vacha had a clinical case of bashful bladder syndrome.
I
further find that both Price and Vacha were anxious, fearful and
angry over the requirament that they submit urine samples on
March 2, 1987. I have very carefully and respectfully considered
the opinion of arbitrator Nicholas that Price and Vacha "chose
not to comply with Management's request" and that they "refused"
to deliver urine samples. However, I have an independent
responsibility under the Mine Safety ~ct, and have heard the
testimony of Price and Vacha among other witnesses.
I have
observed their demeanor on the witness stand, and have weighed
theic obvious interest in the outcome of this proceeding. I am
persuaded that they fully understood the nature of the oath they
took to tell the truth.
I disagree with the implied conclusion
of the arbitrator that they perjured themselves.
I find, as I
previously found in my Temporary Reinstatement Order, that Price

905

and Vacha had physical or psychological difficulties in providing .
the required samples on March 2, 1987. I find that they did not
refuse to submit the urine samples, but were unable to do so
under the circumstances present on the evening of March 2 a.t the
subject mine.
ISSUES
1. Is the JWR Substance Abuse Program on its face violative
of section 105(c) of the Mine Act, irrespective of the motivation
of JWR?
2. Was the JWR Substance Abuse Program as applied to
claimants Price and Vacha in violation of their rights under
section 105(c)?
3. What deference is owed to the findings and conclusions
of the Arbitrator who upheld the discharges of Price and Vacha?
CONCLUSIONS OF LAW
JURISDICTION
JWR is subject to the provisions of the Mine Act in the
operation of the subject underground coal mine. Michael Price
and Joe John Vacha were, as of March 2, 1987, miners and
representatives of miners as those terms are used in the Act.
FACIAL VALIDITY OF THE JWR SUBSTANCE ABUSE PROGRAM
The typical case of discrimination under section lOSCc) of
the Act involves adverse action taken against a miner for
activity related to safety and therefore protected under the Act.
In such a case, the motivation of the employer or other person
respondent is important. In this case, the Secretary contends
that the drug testing program Cor section II.E. thereof) is per
se discriminatory and therefore violative of the Act. The
employer's motivation is, if not irrelevant, at least not so
important. It: is clear that a policy or program of a mine
operator can itself be held to violate the Act. Local Union
1110, UMWA/Robert Carney v. Consolidation Coal Company, 1 FMSHRC
338 Cl979).
Enforcement of such a program by adverse action
against a miner or 1niner's representative, it seems clear to me,
can be prohibited regarulass of the mine operator's motive.
Insofar as it requires randoJn unannounced urine testing,
JWR's substance abuse program applies only to elected safety
committee members, among all hourly employees. The evidence
establishes thr.it. ti1e acti\ri ties of many other hourly employees,
including those who work at the coal face, and on-shift and

906

pre-shift examiners C"firebosses") are intimately related to
safety, but they were not included in the random testing
requirement.· JWR's explanation for the distinction is that
safety committee members have the greatest responsibility for
safety of anyone in the mine. Brooks sta.ted that it was for that
reason that these employees were to be tested first.
Brooks and
William Carr, President of JWR's Mining Division, implied that
they intended to test other hourly workers in the future.
However that may be, it is clear that the current program is
restricted to, and immediately impinges oa one small group of
hourly employees: the elected members of the mine safety
committees.
The evidence establishes that the miners at JWR view
mandatory drug testing with varying degrees of hostility: many
consider it to be accusatory and believe that it casts suspicion
of drug use on persons being tested. They look upon the testing
procedures followed by JWR as an invasion of privacy and an
affront to their dignity. Further, some of the miners have been
exposed to news media reports which cast doubt on the accuracy of
the testing procedures. Thus, they expressed fear that they
might be erroneously branded as drug users. These suspicions and
doubts seem to me to have resulted in part at least from an
inadequate education effort on the part of JWR, and from the fact
that the program was instituted unilaterally, without the
participation of the unions.
The members and potential members of the mine safety
committee reacted negatively and hostilely to the provisions of
II.E. which they viewed as unfairly singling them out for random
testing four times annually. As a result of this reaction, some
committee members have resigned; others have considered resigning
<only one test has been conducted to date because of the pending
litigation), and further testing may cause further resignations.
Still others have ref11sed to accept safety committee positions or
to run for election to them.
Based ori this review of the evidence, I conclude that one
effect of the drug abuse program has been to severely limit the
independence and therefore the effectiveness of the committees.
This is true without regard to the motivation of JWR in
instituting the plan. The importance of preserving the
independence of safety coffi!nittee personnel was underscored in the
case of Local Union 1110, UMWA/Robert Carney v. f2P~~lid~~~9...~
Coal Company, supra, a case unaer the 1969 Coal Act. The safety
committeeman is the representative of the miners under the Act.
He or she is the usual conduit for miners' safety complaints to
management or to MSHA. Although miners and mine manage.'llent are
both clearly intecested in safety, a safety committeeman brings .a
different perspective, a different attitude to safety matters,

907

the perspective and attitude of the miner. He may be less
concerned about production and more concerned about the lives and
limbs of the·workers. In some instances at least, his concerns
and opinions may clash with those of management. It is therefore
important that his independence be maintained. Congress
strengthened the antiretaliatory provisions in_the Coal Act when
· i t enacted the 1977 Mine Act. The legislative history of the
Mine Act makes this clear:
If our national mine safety and health program is to
be truly effective, miners will have to play an
active part in the enforcement of the Act. The
Committee is cognizant that if minars are to be
encouraged to be active in matters of safety and
health, they must be protected against any possible
discrimination which they might suffer as a result of
their participation. • • •

*

*

*

*

*

The wording of section [105 Cc)] is broader than the
counterpart language of section 110 of the Coal Act
and the Committee intends section [105{c)] to be
construed expansively to assure that miners will not
be inhibited in any way in exercising any rights
afforded by the legislation.

s. Rep. 95-181, 95th Cong., 1st Sass. 35-36 (1977), contained in
Legislative History of the Federal Mine Safety and Health Act of
1977; 95th Cong., 2d Sess. (1978) 623-624.
I have previously found that the program was not intended
to diminish the rights and responsibilities of the miners'
repre8entatives, but its effect has clearly been to do so. I
conclude that a retaliatory motive need not·be shown to make out
a claim of discrimination under the Mine Act in the circumstances
of this case. Cf. Simpson v. FMSHRC, 842 F.2d 453 CD.C. Cir.
1988). Therefore, I conclude that section II.E. of the JWR Drug
Abuse and Rehabilitation and Control Program is facially in
violation of section 105Cc) of the Act. The discharge of Price
and Vacha on the ground that they refused to participate in the
program was therefore also in violation of section 105(c).
IMPLEMENTATION OF THE PLAN-DISCHARGE OF PRICE AND VACHA
The Secretary and the Intervenor both contend that even if
the drug testing plan is not discriminatory on its face, it was
discriminatorily applied to Price and Vacha because of their
safety committee activities. Specifically, they argue that Price
and Vacha were harassed and were subjected to disparate treatment

908

because they were safety activists. Finally, they contend that
they were discharged because of their activity as safety
committeemen.. To establish a prima facie case of discrimination
under this theory of the case, complainants have the burden of
establishing that they engaged in protected activity and that the
adverse action complained of was motivated in any part by that
activity. Secretary/Fasula v. Consolidation Coal Co., 2 FMSHRC
2786 (1980), rev'd on other grounds sub nom. Consolidation Coal
co. v. Marshall, 633 F.2d 1211 (3rd Cir. 1981);
secretary/Robinette v. United Castle Coal Co., 3 FMSHRC 817
(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. The
operator may also defend affirmatively by proving that it was
also motivated by unprotected activity and would have taken the
adverse action in any event for the unprotected activity alone.
Fasula, supra; Robinette, supra.
The safety committee activities of Price and Vacha were
clearly protected by the Act. Safety inspections, safety
complaints to mine management and MSHA, relaying miner complaints
to mine management and MSHA: these are prototypically activities
protected under the Mine Act. Refusal (as JWR claims) or failure
because of inability (as Price and Vacha claim) to produce urine
specimens for drug tests would not on the surf ace seem to be
protected. But the specimens were sought only because Price and
Vacha were safety committeemen and therefore representatives of
the miners. Complainants contend that the pre-testing harassment
and the refusal to accommodate the difficulties complainants
experienced in providing the specimens are evidence of a
discriminatory motive.
·
Rayford Kelly, the Industrial Relations supervisor at the
No. 4 Mine, who discharged Price and Vacha, was not directly
involved with the safety committee activities of Price and Vacha
but was clearly aware of them. He knew they were safety
activists, that they were "notorious" for filing safety
complaints. The supervision of the urine collection at the No. 4
Mine was delegated to Andrews and Hendricks, company safety
inspectors, rather than remaining in the Industrial Relations
Department, as in the other mines.
In some of the mines, those
supervising the collection did not go into the bathroom with
those giving the sal!lples. No acco1amoda ti on was offered Pr ice and
Vacha when they claimed inability to produce urine specimens,
though some accommodation was given others involved in the drug
screening program.
I have found as a fact that Price and Vacha
did not refuse to give specimens, but were in fact physically or
psychologically unable to produce the specimens prior to being
aischarged on March 2, 1987. On the basis of this evidence, and
reasonable inferences from the evidence, I conclude that the

909

discharge of Price and Vacha was motivated in part because of
protected activity, i.e., because of their activities as safety
committeemen: The evidence also establishes that JWR made known
that refusal or failure to submit urine samples when required
under the program would be ground for discharge. This was based
on its conclusion that such refusal would be violative of a work
order and thus insubordination.
It is not my function to
determine whether such a policy was a good one or was in
compliance with the contract.
(It involved a "work order" which
involved activity "off the clock"). Price and Vacha were
discharged for insubordination--violating a work order. Would
they have been discharged "in any event" for such
insubordination--that is, if they were not notorious for filing
safety complaints? Since none of the other employees tested in
March and April 1987 failed to produce urine specimens, answering
this question is not easy. JWR told those being tested that
failure to give a urine specimen would result in discharge.
I
believe that any safety committeeman who failed to produce a
specimen when asked would have been discharged. Therefore, I
believe that Price and Vacha would have been discharged for
failure to produce the specimens if they were not safety
watchdogs but harmless safety pussycats. I conclude therefore
that JWR would have discharged Price and Vacha for violating a
work order (not protected activity) in any event, and that the
drug testing program was not discriminatorily applied to Price
and Vacha. This conclusion does not affect my previous
conclusion that the program was discriminatory on its face.
DEFERENCE TO ARBITRATOR
In a "Summary Opinion" dated April 13, 1987, Arbitrator
Samuel J. Nicholas, Jr., restated his award of March 19, 1987,
denying the grievances filed by the UMWA on behalf of Price and
Vacha. The arbitrator determined that JWR had the right to
direct Price and Vacha to deliver urine specimens and that Price
and Vacha had the duty to provide them.
He held that the
discharge of Price and Vacha was not "colored by discrimination
and/or disparate treatment," that the discipline meted out was
appropriate "given the . • • circumstances surrounding
the[employees] refusal to deliver the . • . urine samples." The
transcript of the arbitration proceeding and the arbitrator's
opinion were before me when I issued my Temporary Reinstatement
order.
I held that arbitrator's findings are not binding on the
Commission, citing Pasula v. Consoli1ation Coal Co., supra.
It
is beyond argument that the Com11ission may not abdicate its
responsibility to decide whether a miner ~as discriminated
against under section 105(c) of the Act, because an arbitrator
has decided that the miner was or was not discharged for just
cause under the collective bargaining agreement.
JWR argues,
however, that I should defer to the arbitrator's conclusion that

910

Price and Vacha refused to provide the requested urine specimens.
I have considered this conclusion and have reviewed the testimony
on which it was based. I have also considered the testimony
before me and have elsewhere in this opinion given my reasons for
disagreeing with the arbitrator. I believe I have given his
findings great weight. But they are not compelling: Further, my
disagreement with the arbitrator's finding is of little
importance since, despite my finding that Price and Vacha did not
refuse to provide urine specimens, I concluded that they did not
establish (assuming the facial validity of the program) that they
were discharged in violation of section lOSCc). The arbitrator's
findings and conclusions are not entitled to deference or to
great weight in determining the legal issue whether Section II.E.
of the drug testing program was on its face violative of Section
105(c).
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1. Respondent JWR shall permanently reinstate Michael L.
Price and Joe John Vacha to the positions from which they were
discharged on March 2, 1987.
2. Respondent shall pay wages and other benefits to Price
and Vacha from March 3, 1987, until the date of their
reinstatement with interest thereon in accordance with the
Commission decision in Secretary/Bailey v. Arkansas Carbona Co.,
5 FMSHRC 2024 (1984).
3. The attorneys for the intervenor contributed
substantially to the successful litigation of the claim.
However, under the rule enunciated in Eastern Associated Coal
Corp. v. FMSHRC, 813 F.2d 639 (4th Cir. 1987), and Maggard v.
Chaney Creek Coal Co., 9 FMSHRC 1314 (1987), complainants are not
entitled to reimbursement for private attorney's fees.
4. Respondent shall expunge from its personnel records,
all references to the discharges of Price and Vacha on March 2,
1987.
5. Respondent shall cease and desist from enforcing the
provisions of paragraph IIE of its Substance Abuse Rehabilitation
and Control Program against safety committee personnel in all its
mines.
6. Counsel for the parties shall confer and attempt to
agree upon the amounts due Complainants under No. 2 above. They
shall report to me the results of their attempt on or before

911

August 12, 1988. This decision shall not be final until a
supplemental decision and order has been issued concerning the
amounts due under No. 2 above.

j

/l4/1'U!-5

/46,,; d.1-v;;i

James A. Broderick
Administrative Law Judge

Distribution:
Frederick W. Moncrief, Esq., U.S. Department of Labor, Office of
the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
James P. Alexander, Esq., Robert K. Spotswood, Esq., John H.
Hargrove, Esq., Bradley, Arant, Rose & White, 1400 Park Place
Tower, Birmingham, AL 35203 (Certified Mail)
Robert H. Stropp, Esq., Patrick K. Nakamura, Esq., Stropp &
Nakamura, 2101 City Federal Bldg., Birmingham, AL 35203
(Certified Mail)
Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th
St., N.W., Washington, D.C. 20005 (Certified Mail)
slk

912

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

JUL 15 \988
TERRY MILLER,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. PENN 88-184-D
PITT CD 88-06

BENJAMIN COAL COMPANY,
Respondent

Benjamin No. 1 Strip

ORDER OF DISMISSAL
Before:

Judge Melick

Complainant requests approval to withdraw his Complaint
in the captioned case for the reason that the u derlying
issue has been settled. Under the circumstance herein,
permission to withdraw is granted.
29 C.F.R. § 2700.11.
This case is therefore dismissed and the hearin s previ usly
scheduled for August 10, 1988, ar cancelled.

Judge
Distribution:
Terry Miller, R.D. #1, Box 46, Fall
(Certified Mail)

Timber, PA

16639

Harry Benjamin, Vice President, Mr. John B. Martyzk,
Manager-Personnel/Safety, Benjamin Coal Company, R.R. 1, Box
409, LaJose, PA 15753 (Certified Mail)
nt

913

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

JUL 151988
-

JOSEPH M. MAZENKO,
Complainant
v.

DISCRIMINATION PROCEEDING

BENJAMIN COAL COMPANY,
Respondent

PI'rT CD 87-18

Docket No. PENN 88-192-D

ORDER OF DISMISSAL
Before:

Judge Melick

Complainant has filed notice that the parties have
reached an agreed settlement of the underlying issue. I
consider the notice as a request to withdraw the Complaint h.
the captioned case. Under the circumstances herein,
permission to withdraw is granted. 29 C.F.R. § 2700.11.
This case is therefore dismissed and the hea jngs previously
scheduled for July 26, 1988, are can elled.

G

Distribution:
Mr. Joseph M. Mazenko, R.D. #1, Box 16 , Irvona, PA
(Certified Mail)

16656

Mr. John B. Martyzk, Manager-Personnel/Safety, Benjamin Coal
Company, R.R. 1, Box 409, LaJose, PA 15753 (Certified Mail)
nt

914

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

JUL 181988
OF LABOR,
MINE SAFE'fY AND HEALTH
ADMINISTRATION I ( MSHA) I
Petitioner

SECRE·rAR~

..

CIVIL PENALTY PROCEEDING
Docket No. PENN 88-21
A. C. No. jG-07571-03515

v.
JPLMJ Strip Mine
WESTRICK COAL COMPANY,
Respondent
ORDER OF DEFAULT
On June 30, 1988, in response to Petitioner's Motion to
Dismiss Respondent's Notice of Contest, a Show Cause Order was
issued which ordered Respondent as follows: "Failure of
Respondent by July 11, 1988, to respond to the Prehearing Order
or show cause why it has not responded to the Prehearing Order
shall result in the Dismissal of Respondent's Notice of Contest,
and a default judgment will be entered in favor of the Solicitor
ordering the Respondent to pay the assessed penalties of $482.00.
To date, Respondent has not responded to the Show Cause
Order. Accordingly, it is found that the Respondent is in
default, and it is ORDERED that a default judgment be entered in
favor of Petitioner. It is further ORDERED that Respondent,
within 30 days of this Order, pay the assessed penalty of $482.
It is further ORDERED that the Hearing in this matter, set for
July 26, 1988, be canceled.

~~

Avram Weisberger
Administrative Law Judge
Distribution:
Judith L. Horowitz, Esq., Office of the Solicitor, u. 5. Department of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Mr. Ray Westrick, Owner, Westrick Coal Company, RD 1, Box 457,
Patton, PA 16668 (Certified Mail)
dcp

915

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

JUL 181988
-

JAMES BOWLING,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. KENT 88-39-D

WOODS CREEK COAL CORPORATION,
Respondent

BARB CD 88-01

.

ORDER OF DISMISSAL
On July 14, 1988, Respondent filed a Settlement in the above
case executed by both Parties. In essence, in the Settlement,
Complainant agreed, for considerations received, to "settle!" al I
claims against Respondent. As such the above proceeding is
moot, and it is thus ORDERED that this case be DISMISSED. It is
further ORDERED that the Parties shall abide by the terms of the
Settlement dated July 8, 1988.

Avram Weisberger
Administrative Law Judge
Distribution:

o. Box 53, Essie, KY 40827 (Certified Mail)
Mr. John Chaney, President, Woods Creek Coal Corporation, P. o.

Mr. James Bowling, P.

Box 149, East Bernstadt,

K~

40729 (Certified Mail)

dcp

916

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

JUL 221988
CONSOLIDATION COAL COMPANY,
·Contestant

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

v.

.
.
.
.

CONTEST PROCEEDING
Docket No. WEVA 88-8-R
Order No. 2947173; 9/9/87
Shoemaker· Mine

CIVIL PENALTY PROCEEDING

.

Docket No. WEVA 88-112
A.C. No. 46-01436-03713
Shoemaker Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

B. Anne Gwynn, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania,
for the Secretary of Labor (Secretary);
Michael R. Peelish, Esq., Pittsburgh, Pennsylvania,
for Consolidation Coal Company (Consol).

Judge Broderick

STATEMENT OF THE CASE
This proceeding involves the contest by Consol of a
withdrawal order issued under section 104(d)(2) of the Federal
Mine Safety and Health (Act), and a petition for a penalty by the
Secretary for the safety violation alleged in the withdrawal
ord~r.
Pursuant to notice the consolidated cases were heard in
Wheeling, West Virginia, on June 23 and 24, 1988. Federal Mine
Inspector Lyle Tipton and Robert Polanski testified on behalf of
the Secretary. Lloyd Behrens, Dave Hudson and Michael Blevins
testified on behalf of Consol. Counsel for both parties waived
their rights to file post hearing briefs.
I have considered the
entire record on the basis of which I make the following
decision.

917

FINDINGS OF FACT
1. Consol is the owner and operator of the subject mine
located in Marshall County, West Virginia.
2.
coal.

In 1986, the subject mine produced 2,334,000 tons of
Consol is a large operator.

3. There were 715 inspection days at the subject mine in
the 24 month period prior to the issuance of the contested order.
During that period 563 paid violations were assessed against the
mine, of which 463 were termed significant and substantial.
Eighty-six of these violations were of 30 C.F.R. § 75.200 and two
were were of 30 C.F.R. § 75.202. I consider this a substantial
history of prior violations.
4. There was no intervening clean inspection between
August 28, 1986, when withdrawal order 2828131 was issued under
section 104Cd)(2) of the Act, and September 9, 1987, when order
2947173 (the order contested herein) was issued.
5. Sometime during the week of August 31, 1987, a miner,
Dave Tkach told Consol Safety Inspector Lloyd Behrens that tha
entrance into the Brit Run Pumper Shanty had some areas of unsafe
roof and should be checked. This area is parallel to and close
to a part of the 5 North intake escapeway. Behrens went to the
area of the pumper and "couldn't find anything." He did not
inform Tkach of this.
6. The fresh air escapeway is required to be inspected by
the operator at least once each week.
On September 9, 1987,
during the midnight shift, Consol safety inspector Tom Duffy
walked the 5 North fresh air escapeway. He found 23 conditions
needing corrective action, all having to do with the condition of
the roof. He tagged the areas needing correction. He prepared a
three page report of the conditions and noted that a total of 42
posts and one crib were required to correct the conditions.
Copies of his report were given to the Assistant Superintendent,
Dave Hudson and to Safety Supervisor Michael Blevins, among
others. The reports were made prior to the shift change at
8:00 a.m. on September 9.
7.
Dave Hudson thereafter directed the Assistant shift
foreman, Jack Marvin "to continue posting in the 5 North Air
Courses." Two sections were then working inby this area and
dependent on the escapeway.
8. Federal Mine Inspector Tipton arrived at the mine to
make a regular quarterly inspection between 8:00 and 9:00 a.m. on
September 9, 1987. Robert Polanski, a member of the mine safety

918

committee, told Tipton that there were hazardous roof conditions
in the intake air escapeway and that a pumper named Tkach had
complained of them. For this reason Tipton proceeded to the 5
North intake air escapeway.

9. Inspector Tipton found 18 separate locations along
approximately 2000 feet of the escapeway whece the roof was
unsupported or inadequately supported. In three of the
locations, the roof was totally unsupported, and the inspection
team had to leave the escapeway to an adjoining airway and double
back to the escapeway beyond the unsupported area.
10. The unsupported roof resulted from the failure of the
bolts to hold. Some of the bolts were dangling, others had
fallen to the mine floor; some bearing plates were dislodged;
some rock and cap coal had fallen to the mine floor.
I find as
facts that the conditions were essentially as found by Inspector
Tipton and that there were 18 areas of unsupported or
inadequately supported roof in the 5 North intake escapeway on
September 9, 1987.

11. The intake air escapeway was approximately 5000 feet
long. It had been roof bolted many years previously using
conventional metal bolts. The area has a high velocity of air
and high humidity. Both of these conditions tend to cause rapid
deterioration in the mine roof and ribs. However, the roof
conditions found by Inspector Tipton on September 9, 1987, were
such that they could not have occurred in less than one week.
12. The conditions cited in the contested orde~ were
promptly abated after the order was issued. The work of
abatement had actually commenced before the order was issued.
The order was terminated at 5:22 p.m. on September 9, 1987.
ISSUES
1. Did the condition found by Inspector Tipton on
September 9, 1987, constitute a significant and substantial
violation?
2. Did the condition result from the unwarrantable failure
of Consol to comply with the mandatory standard?
3. What is the appropriate penalty for the violation cited
in the order?

919

CONCLUSIONS OF LAW
1. Consol is subject to the provisions of the Act in the
operation of the subject mine, and I have jurisdiction over the
parties and the subject matter of this proceeding. :
2. The condition found to exist in the 5 North intake
escapeway of the subject mine by finding of fact No. 10
constitutes a violation of 30 C.F.R. § 75.200. The roof was not
supported or otherwise controlled adequately to protect persons
from falls of the roof. The escapeway is an active underground
travelway. Consol did not seriously contest the fact of
violation.
3. For a violation to be of a significant and substantial
nature, there must be a reasonable likelihood that the hazard
contributed to will result in a serious injury. Cement Division,
National Gypsum, 3 FMSHRC 822 (1981); U.S. Steel Mining Co~,
Inc •• 6 FMSHRC 1573 (1984). The hazard in the case before me is
two ·fold:
Cl) a roof fall endangering miners travelling the
escapeway; (2) the blockage or rendering impassable the
designated escapeway. The condition of the roof here was such
that a fall was reasonably likely to occur; in fact some falls
had occurred. The escapeway was without any roof support in at
least three areas. Any injury resulting from a roof fall would
likely be serious. I conclude that the violation charged in the
contested order was of a significant and substantial nature.
4. unwarrantable failure was held by the Commission to mean
"agg:i:-avated conduct, constituting more than ordinary negligence."
Emery Mining Corp., 9 FMSHRC 1997 (1987); Youghiogheny & Ohio
Coal Co., 9 FMSHRC 2007 {1987). I conclude that the viol~tion
cited in the contested order was due to Consol's unwarrantable
failure because Cl) the condition was such that it must have
existed for more than seven days prior to the order; therefore it
existed when the examination of the area was made (or should have
been made) on or about September 2, 1987; {2) Consol was put on
notice of the "ratty" and unsafe condition of the roof in the
area when the pumper Dave Tkach complained of it during the week
of August 31, 1987; (3) Consol safety inspector Duffy during the
midnight shift on September 9, found 23 areas in the escapeway
needing corrective action. Yet there was no corrective action
taken until after Inspector Tipton began his inspection of the
escapeway after the beginning of the day shift. These facts in
my judgment establish aggravated conduct, constituting more than
ordinary negligence.
5. The condition cited was serious and was caused by
Consol's aggravated conduct. Consol is a large operator with a
significant history of prior violations at the subject mine. The

920

violation was promptly abated in good faith. There is no
evidence that the imposition of a penalty will affect Consol's
ability to continue in business. I conclude that an appropriate
penalty for the violation is $1000.
ORDER
Based upon the above findings of fact and conclusions of
law, IT IS ORDERED:
1. Order 2947173 issued September 9, 1987, is AFFIRMED,
including its special findings that the violation charged was
significant and substantial and resulted from Consol's
unwarra.ntable failure to comply.
2.

Consol's notice of contest of the order is DISMISSED.

3. Consol shall within 30 days of the date of this order
pay a civil penalty of $1000 for the violation found herein.

tug

ffivt!Jdvz;~/

ames A. Broderick
dministrative Law Judge
Distribution:
B. Anne Gwynn, Esq., U.S. Department of Labor, Office of the
Solicitor, 3535 Market St., Philadelphia, PA 19104 <Certified
Mail)

Michael R. Peelish, E~q., Consolidation Coal Co., 1800 Washington
Rd., Pittsburgh, PA 15241 (Certified Mail)
slk

921

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 60204

IRVIN L. GAGON,
Complainant

v.
CYPRUS-PLATEAU MINING
CORPORATION,
Respondent

.
.
.
.

JUL 2 51988

DISCRIMINATION PROCEEDING
Docket No. WEST 88-144-D
DENV CD 88-4
Starpoint No. 2 Mine

DECISION APPROVING SETTLEMENT
Before:

Judge Lasher

The parties have reached a resolution of this matter without
the necessity of litigation. Pursuant thereto, the parties
through counsel have submitted a Stipulation and Settlement
Agreement dated July 18, 1988, the terms of which are here
approved.
Pursuant to the agreement of the parties, this proceeding is
dismissed with prejudice with each party to bear his Cits) own
costs.

~-~/'
~ .~4~ ~
-ii'~hael A. ~{6~-, Jr.
Administrative Law Judge
Distribution:
Mr. Irvin L. Gagon, 131 South 5th East, East Price, UT 84501
(Certified Mail)
Edward B. Havas, Esq., Giauque, Williams, Wilcox & Bendinger, 500
Kearns Building, 136 South Main, Salt Lake City, UT 84101
(Certified Mail)
Kent W. Winterholler, Esq., Parson, Behle & Latimer, 185 South
State Street, Suite 700, P.O. Box 11898, Salt Lake City, UT
84147 (Certified Mail)
Stan Warnick, Personnel Director, Cyprus Mining, P.O. Drawer PMC,
Price, UT 84501
/bls

922

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

JUL 2 81988
CONTES'r PROCEEDING

SOUTHERN OHIO COAL COMPANY
Contestant

v.

Docket No. LAKE 87-95-R
Citation No. 2945843: 7/22/87

SECRE'rARY· OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

..

.
.
..
.

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

v.

Meigs No. 2 Mine
Mine ID 33~01173
CIVIL PENALTY PROCEEDING
Docket No. LAKE 88-26
A. C. No. 33-01173-03743
Meigs No. 2 Mine

SOUTHERN OHIO COAL COMPANY,
Respondent
DECISION
Appearances:

David A. Laing, Esq., Porter, Wright, Morris &
Arthur, Columbus, Ohio, for the Operator
Patrick M. Zohn, Esq., Office of the Solicitor,
U. s. Department of Labor, Cleveland, Ohio, for
the Secretary.

Before:

Judge Weisberger

Statement of the Case
In these consolidated cases, the Operator (Respondent) seeks
to challenge a citation issued to it by the Secretary (Petitioner)
for an alleged violation of 30 C.F.R § 70.100, and the Secretary
seeks a civil penalty for the alleged violation by the operator of
section 70.100, supra. Pursuant to notice, these cases were heard
in Wheeling, West Virginia, on April 19 - 20, 1988. Patrick Lester
McMahon, Marion D. Beck, and Judith Irene Johnson testified for
Petitioner, and David George Zatezalo, Jon Merrifield, and Mark
Randall Hatten testified for Respondent.
At the hearing, at the conclusion of Petitioner's case,
Respondent made a motion for summary decision, which was denied.
Petitioner filed its Post Trial Brief and Proposed Findings of
Fact on June 13, 1988, and Respondent filed its Proposed Findings
of Fact and Brief on June 10, 1988. Reply Briefs were filed by
·both Parties on June 27, 1988.

Issues
The issues are whether Respondent violated 30 C.F.R.
§ 75.100, and if so, whether the violation was of such a nature

as could significantly and substantially contribute- to the cause
and effect of a mine safety or health hazard. If section 75.100,
supra, has been violated, it will be necessary to determine the ~appropriate civil penalty to be assessed in accordance with
·
section llO(i) of the Federal Mine Safety and Health Act of 1977.
Stipulations
The Parties have stipulated as follows:
1. The Federal Mine Safety and Health Review
Commission has jurisdiction over this proceeding.
2.

The Southern Ohio Coal Company is a large operator.

3. The Meigs No. 2 Mine is owned and operated by the
Southern Ohio Coal Company.
4. The Southern Ohio Coal Company is an operator as
defined by section 3Cd) of the Act.
5. The Meigs No. 2 Mine is a mine as defined by section 3(h) of the Act.
6. The Southern Ohio Coal Company and the Meigs No. 2.
Mine are subject to the jurisdiction of this Court and
the 1977 Mine Act.
7. The size of the proposed penalty, if any assessed,
will not affect the operator's ability to continue in
business.
Findings of Fact and Conclusions of Law

I.
The essential facts are not in dispute. Patrick Lester
McMahon, a MSHA Inspector who is a health specialist, madH a
technical inspection at Respondent's Meigs No. 2 Mine, at the
southwest block third panel. On July 15, 1987, at that time, the
longwall panel was only in its third shift. Inspector McMahon
testified at length as to the procedures he used in setting up
the test equipment and as to the equipment itself. No evidence
was adduced to either contradict McMahon's testimony as to the
procedures he used in setting up the equipment, nor was any

924

evidence adduced which would tend to impeach either the
reliability of McMahon's methods, or the reliability of the
equipment he used. McMahon furnished the test equipment to be
worn, for 8 hours, by miners with the following occupations:
headgate operator intake, 040; jack operator intake., 041; shear
operator intake (head), 064; shear operator return (tail), 044;
jack setter return, 041. The shear operator return was
considered to be the "designated" occupation in this group as
being exposed to the most dust on the longwall operation. At the
end of the shift, McMahon collected the equipment containing the
dust samples and returned to the MSHA Off ice. McMahon testified
in detail concerning the nature of the equipment used to test the
dust samples, the procedures that he used in setting up the
equipment, and in testing the samples. No evidence was adduced
which contradicted McMahon's testimony as to the procedures he
performed. Nor was any evidence adduced which would tend to
impeach the reliability of either the procedures or equipment
used by McMahon in testing the samples. Accordingly, I find that
the dust sample results obtained by McMahon on July 15 to be
reliable. These indicate the following milligrams of dust per
cubic meter for the following occupations in the section:
shear operator intake
headgate operator intake
jack operator intake
jack operator return

2.2
0.3
1.5
2.5.

The sample for the designated occupation of shear operator return
was voided as the sample contained oversize particles. The average for the section was 1.5 milligrams per cubic meter. McMahon
decided, to return for additional testing, because the sampling
for the high risk occupation was void, and because sampling for
the shear operator intake and jack setter return yielded samples
which exceeded the maximum set forth in section 70.100, supra, of
2.0 milligram per cubic meter.
On the following day, testing was performed by MSHA Inspector
Marion D. Beck. In essence, the procedures and equipment used by
Beck were the same as those used by McMahon. 1/ (Beck had inadvertently placed the wrong occupation number on the equipment.

_!_/ Respondent, in essence, argues, in paragraph B of its Brief,
that 30 C.F.R. §§ 70.20l(c), 205(b), and 207Cd), containing
requirements foe dust sampling by Operators should be imposed on
the Secretary, and that these Sections were violated by Beck. I
find that I do not have any authority to essentially crate a
regulatory obligation 011 the Secretary where none exists.

925

However, inasmuch as this error did not change the overall average
for the section, and inasmuch as the error is corrected by
reversing the dust concentrations for the shear operator return and
shear operator intake, the error was found to be inconsequential.)
Beck, at the conclusion of the 8 hour shift on July_ 16, 1987,
obtained the dust samples from the miners tested, and took them to
the MSHA Laboratory. Judith Irene Johnson, a MSHA Lab Technicia~~
testified, in essence, that she tested the samples on July 16~
·.
using the same equipment procedures and methods as testified to by
McMahon. She also reweighed her results the following day with no
change in the results. Also, McMahon testified that on July 20 he
verified the results obtained by Johnson on July 16. Accordingly,
I find, that on July 16, the following occupations were tested with
the following concentration of du3t in milligrams per cubic
centimeter:
shear operator intake
shear operator return
headgate operator intake
jack operator intake
jack setter return

void due to oversize
particles
7.1
1.7
. 0 .1
7.1.

The average for the section was 4 on July 16, and the cumulative
2 day average was 2.7.
McMahon testified that because two occupations sampled were
above the limit of 2.0 milligram per cubic meter on July 16, he
had to return for additional testing. McMahon further testified
that pursuant to MSHA policy, which indicates that an occupation
with an average dust concentration of 1.6 or less after the second
day of testing may be dropped from further testing. McMahon
decided not to test the headgate operator intake on the third day
as the 2 day average for this occupation was only 0.9, and there
was no reason to continue testing that occupation. However,
according to McMahon, inasmuch as there were two occupations whose
test results on July 16 exceeded the regulatory maximum of 2.0j he
decided to return on July 21 for additonal testing. McMahon's
testimony with regard to the procedures and equipment used in
testing on July 21 was not contradicted. Accordingly, I find, that
on July 21 when tested, the following occupations in the sections
had the following concentratioa of dust per cubic meter:
shear operator intake
shear operator return
jack operator intake
jack setter return

926

1.7
1.1
0.2
0.2.

I further find that the average for the section based upon the
cumulative results for the 3 days of testing, to be 2.1
milligrams per cubic meter.
Inspectoc McMahon, when presented with these results, issued
a citation for a violation of section 70.100, supra, which provides, in essence, that the average concentration of respirable·
dust during each shift, to which each miner in the active workings
of the mine is exposed, shall be at or below 2.0 milligrams per
cubic meter.
Inasmuch as the third panel had been in existence
for two shifts prior to the inspection on July 15, and was actively
engaged in the mining of coal, I conclude that the panel in question was a "active workings," as referred to in section 70.100;
supra, (see also 30 C.F.R. § 70.2). Further, inasmuch as the
cumulative average for the occupations tested in the section in
question on July 15, 16, and 21, 19 87, produced a cu1uulati ve
average of dust concentration for the section of 2.1 milligrams
per cubic feet, I conclude that section 70.100, supra, has been
violated.
II.
It appears to be the position of Respondent that the
Petitioner has the burden of establishing that the method used in
sampling the dust herein was reasonable.
In this connection, it
is Respondent's further argument, that the omission by McMahon of
the headgate operator intake from the testing on July 21, was
arbitrary, and that accordingly the cumulative average of 2.1 was
not arrived at reasonably.
In this connection, Respondent makes
reference to uncontradicted testimony that the headgate operator
intake, being closest to the source of the intake air, normally
has the lowest exposure to dust of the five occupations in the
section which were subject to the testing. Thus, Respondent
argues that it is likely that had the headgate operator intake
been tested on July 21, the result would have been a dust
concentration equal to or less than that of 0.2, which ~as the
dust concentration yield for the two occupations whose result was
the lowest in the section on July 21. Respondent argues that had
the headgate operator intake not been dropped from the testing on
July 21, 1987, it is very likely that he would have been subject
to dust concentration of equal or less than 0.2, hence bringing
the 3 day cumulative average to 2.0 or less and thus being within
the regulatory standard. Respondent, in essence, also argues
that omitting a previously sa1npled occupation when computing a
section average, is not rational. Further, Respondent argues
that when policy which provides for the omission 0£ those
occupations with previous tested concentrations of less than or
equal to 1.6 results in the section average based on greater
samples from "dustier" occupations, the test result3 are
irrationally detrimental to the operator.

927

I find however that there is no evidence that McMahon dropped
the headgate operator intake from the testing on July 21, 1967,·in
order not to have the average for the section .decreased. Indeed,
it is to be noted that McMahon retained for testing on the July 21
t~e jack operator intake whose test result of 0.1 on July 16 was.
even less than the result of 1.7 yeilded for the headgate operator
intake. Moreover, since it is manifest that the purpose of s~ction
70.lOO(a), supra, is to protect miners from excessive exposure to
the hazards o~ dust, it is not irrational, oer se, to discontinue
testing an occupation (040) which had evidenced exposure to dustconcentration in 2 previous days of testing substantially below the
regulatory ceiling.
If the resulting section average will be then
based on greater samples from dusty occupations, the section average will thus realistically reflect the hazards to the section.
Accordingly, I find that Petitioner herein acted reasonably
in its method of testing, and that there was insignificant
evidence that it acted arbitrarily. 2/

III.
McMahon testified that he considered the violation herein to
be significant and substantial, inasmuch as exposure to dust
concentrations of more than 2. 0 milligram per cubic 1neter
contributes to the hazard of a pulmonary diseas~ which is a
disease of reasonably serious nature. Respondent indicated at
the hearing that it did not dispute the significant and
substantial aspect of this case. Accordingly, I find that the
violation herein was significant and substantial.

IV.

In assessing a penalty herein, I have the adopted the
uncontradicted testimony of McMahon with regard to Respondent's
negligence and find that Respondent acted with a low degree of
negligence.
I further find that the Respondent herein acted in
good faith in abating the violation, and I find that, based
upon the te.stiinony of McMahon, the violation herein was of a
moderately serious nature as exposure to excessive respirable
dust is likely to contribute to the hazard of pulmonary diseas~.
~/

Resoonden~, in its Brief, nas argued that the manner in which
ibateme~t was required was unlawful. I find this argument to be
irrelevant in.evaluating the validity of the citation that is at
issue herein.
I also nota that Respondent does not seek any
relief for the Petitioner's allegedly unlawful manner of abatement.

928

Further, I have adopted the stipulations of the Parties and the
factual data on GX 14, with regard to the remaining factors in
section llO(i) of the Act. Accordingly, I find that a penalty
herein of $259 as proposed is appropriate.
ORDER
·It is ORDERED that Respondent shall pay, within 30 days of
this decision, a civil penalty of $259 for the violation found
herein.

rt-~

Avram Weisberger
Administrative Law Judge
Distribution:
David A. Laing, Esq., Porter, Wright, Morris & Arthur, 41 South
High Street, Columbus, OH 43215 (Certified Mail)
Patrick M. Zohn, Esq., Office of the Solicitor, u. s. Department
of Labor, 881 Federal Office Building, 1240 East Ninth Street,
Cleveland, OH 44199 (Certified Mail)
dcp

929

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

JUL 281988
. DISCRIMINATION PROCEEDING
STANLEY BAKER.
..
Complainant
v.

.
.

KEN'rUC.KY s·roNE COMPANY,
Respondent

Docket No. KENT 87-142-D
Pulaski Plant

DECISION
Appearances:

Philip P. Durand, Esq. and Wendy Tucker, Esq.,
Ambrose, Wilson, Grimm & Durand, Knoxville,
Tennessee, for Complainanti
John G. Prather, Jro, Esq., Law Offices of John G~
Prathe:c, Jr., Somerset, Kentucky, for Respondent.

Before:

Judge Weisberger

Statement of the Case
Complainant filed a complaint with the Commission under
section 105Cc) of the Federal Mine Safety and Health Act of 1977,
30 U.F.Co § 815(c) (the Act) alleging, in essence, that he was
illegally fired in violation of the Act.
Pursuant to notice of November 6, 1987, the case was set for
hearing in Knoxville, Tennessee, on December 8 - 9, 1987. In a
conference call initiated by the undersigned on November 30,
1987, between the undersigned and the attorneys for both Parties,
the Complainant's attorney made a request for the hearing to be
adjourned. This request was not objected to by Respondent's
attorney. Accordingly, pursuant to notice, the case was rescheduled and subsequently heard in Knoxville, Tennessee, on March 15
- 16, 1988. Stanley Baker, Charlotte Dykes, Roger Hasty, Sherman
McClure, Melvin Thomas, Mark Lueking, Dale Tabor, Johnny Bruner,
and Donny Tabor testified for the Complainant. Dennis Halcomb,
Glennis Miller, Danny Roberts, Earl "Howard, and Herbert Robbins
testified for the Respondent.
At the hearing, at the conclusion of the Complainant's case,
Respondent make a motion for a directed opinion in favor of the
Respondent, and decision was reserved on this motion.

930

Complainant filed its Proposed Findings of Fact and
Memorandum of Law on June 1, 1988, and Respondent filed its
Proposed Findings of Fact and Memorandum on June 1, 1988.
On June 10, 1988, Complainant filed a·Response to Respondent's
Summary of Proceedings and Response.to Respondent'~ Memorandum of
Law.
Stipulations
1. Except for occasional layoffs, Complainant worked at
Kentucky Stone Corporation's Pulaski Plant from September 15,
lg76 until he was fired on May 2, 1985.
2. The Kentucky Stone Corporation <"Kentucky Stone") is a
wholly owned subsidiary of the Kopper•s Corporation and is
located in Pulaski County, Kentucky.

3. The Kentucky Stone ·corporation is engaged in limestone
mining operations and is subject to the provisions of the Federal
Mine Safety and Health Act of 1977, including§ 815Cc)Cll. Further, Kentucky Stone falls within the definition of an "operator"
as provided for in the Act.
4. Complainant was operating a Caterpillar'988A (Company No.
444) front-end loader, which was owned and/or lea~ed by Kentucky
Stone at the time of his discharge on May 2, 1985. At no time
did Complainant refuse to operate the Caterpillar 988A (Company
No. 444) front-end loader.

5. Dennis Halcomb was acting as an agent for Kentucky Stone
when he fired Complainant.
Findings of Fact
1. Stanley Ray Baker, Complainant herein, was first employed
at Kentucky Stone Company on September 17, 1976. While employed
with Kentucky Stone Company, he has also operated a bulldozer and
a "front-end loader" which, for the purpose of this proceeding, ·
pertains primarily to the operation of a Caterpillar 988A loader.
2. A Caterpillar 988A loader is a large rubber-tired piece
of equipment used, by Kentucky Stone Company in its quarrying
operations, to load stone into the trucks hauling stone for its
customers, to clear and organize stockpile of stone, and to clear
roadways and pathways from spillage within the plant area.
3. Complainant has substantial experience operating frontend loaders, having previously operated a 980C Caterpillar, a
988B, and an HlOO, as well as a 275 Michigan, a 125 Michigan, a
175 Michigan, and other models of loaders.

931

4. Kentucky Stone Company, Respondent, at its quarry in
Pulaski County, Kentucky, is engaged in the buainess of quarrying
(mining) limestone rock from an open pit. When consumers purchase the rock, trucks are obtained to haul the rock from the
"plant" at the quarry to the sita designated by the consumer.
Complainant's job included loading those trucks from the stockpiles. Some of the locations where the trucks parked to be loaded
included grades. Loading the trucks requires the loader, with the
bucket in a lowered position, to be driven into the stockpile to
obtain limestone rock and to then be backed out of the pile,
raising the bucket as the piece of equipment moves backward, and
then maneuvering the loader into a position sufficient to permit
the limestone rock to be dumped from the bucket into the truck.
Throughout the time that the loading of the truck occurs, the
loader is kept in first gear. The distance of travel is some 10
to 20 feet and the brakes of the loader are usually applied 8 to
12 feet before reaching a truck bed •
5. Occasionally, Complainant took the loader into the pit
to clear off areas in the pit, or on shelves, to provide areas
for the rock drills to drill, or he would haul fuel into the pit
area.

6. The loader is used, from time to time, to "push off the
stockpiles." This means that the crushed material is dumped on
the stockpiles and then has to be organized or pushed around on
the stockpiles to permit the piles to be orderly and usable.
Roadway grading with the loader involves filling small potholes
that occurred in the roadways, and clearing haul roads •
7. It was Baker's responsibility to watch the quarry site
for trucks which were seeking to be loaded and to load them
promptly in order to avoid delaying other trucks seeking to be
loaded.
8. Baker testified that he was required to complete a daily
checklist on every piece of equipment that he operated, and that
he always filled it out.
9. Prior to operating the 988A loader, which is principally
the subject matter of this action, Baker operated a 980C loader,
which was a later model loader. On the April 24, 1985, Baker
marked the brakes on the 980C loader "inoperable" and that loader
was taken out of service and sent off to a shop for repairs. He
was then assigned to the 988A loader and continued running it
until the end of the shift.

932

10. The safety checklist, designed and supplied by Respondent,
contains two columns for marking. One column is headed "OK" and
the other column is headed "INOP." Mr. Baker believed that "INOP."
meant "improper" (Tr. 120) or "inoperable" CTr. 121). Neither side
of this form contains any space specifically desig~ate~.for comments.
11. On the date that he first operated the loader, Baker
claimed the brakes would not catch proparly when they were
applied and that the loader would continue to roll 5 to 10 feet~
He testified, in essence, that the distance the loader rolled
after the application of the brakes varied. Baker testified that
because of the condition of the brakes, he was concerned for his
safety because if the brakes did not catch, the loader would
roll, possibly backwards into a stockpile or forwards into the
side of a truck. Once the loader stopped it did so abruptly.
This created a danger because the loader bucket of ten held 10 to
12 tons of gravel in the air while loading a truck. The sudden
stop would shift the weight of the bucket and thus force the back
wheels of the loader to lift off the ground, causing the gravel
to scatter into the objects below. Baker was concerned that the
gravel would damage the trucks and injure the truck drivers who
were on the ground below. Baker said he had trouble with the
windshield wiper, that the windshield was cracked, and that he
also marked problems with one mirror and an accessory ladder. .He
also claimed he was having problems with the steering, but that
he did not report the problems with the steering because there
was no place on the safety checklist to report problems with
steering. He alleged he did tell the Superintendent, Dennis
Halcomb, he was having problems with the steering and that he
also told the on-site mechanic, Glennis Miller, of such problems.
12. The safety checklists are posted on clipboards and hung
on a wall in the shop.

13. Baker testified that Glennis Miller indicated on one of
the early days of his usage of the loader that there was a
"problem" with the brakes (Tr. 129). Also, Baker said that
Sherman McClure said the brakes were "no good" and they "wouldn't
catch when you first hit them" CTr. 129). Baker also claimed
that the brakes wouldn't hold, so he attempted to use the fuel
control to hold the loader in place. For safety reasons, Baker
did alter the way he loaded trucks. Baker no'rmally loaded trucks
on an incline so that his loader would be above (on the upper
side of) the truck. After Baker detected oroblems with the
brakes, he reversed this process and began.loading from below the
trucks. He also positioned his loader so that if the brakes did
not catch he would roll backwards into a pile of gravel co cushion his .stop.
14.

Baker denied anyone inspecting the brakes on the first

day that he marked the safety checklist.

933

15. Baker continued to operate the loader on Monday,
April 30. Baker denied that anyone from Kentucky Stone Company
talked to him about the brakes on the second day of operation.
Two sets of checklists were marked on April 30. In,- filling out
the checklists, throughout the entire time that he operated the
988A, Baker continued to mark the brakes "INOP."
16. Baker acknowledged that he discussed the brakes of the
loader with Glennis Miller, on-site mechanic, on the first or
second day· that he had operated it, and told him the loader would
roll before the brakes caught. Baker denied that anyone got on
the loader or stood by and watched him operate the loader on the
first or second day.
17. When Dennis Halcomb, Respondent's Superintendent, first
received a form indicating the 988A brakes were marked "INOP.",
he went to talk to Baker and was told that the brakes were inoperable. Halcomb told Baker that he would have the mechanic check
the brakes. Halcomb said the mechanic, Glennis Miller, got on
the loader, drove it into the pile, backed out, checked the
brakes, oil, fluid, and other items to determine if there was a
problem, taking approximately 10 to 15 minutes. Halcomb said
Miller reported to him that there was nothing wrong with the
brakes.
18. On the next day, Halcomb again had Glennis Miller check
the brakes. Miller said Baker was present, but did not tell birn
there was anything wrong with the way he was testing the brakes.
Halcomb .said Miller reported back that the brakes had nothing
wrong with them and that he suspected that Baker had been used to
the disc brakes on the 980 loader which catch more quickly than
the ballon-type brakes on the 988A. Halcomb said he told Baker
what Miller said about the brakes.
However, based upon observations of his demeanor, I placed
more weight on the testimony of Miller as to what he actually did.
I find thus that all Miller did was to travel forward with the
loader and hit the brakes two to three time. He noted after the
brakes were applied, the loader would roll a few feet before stopping and he told this to Baker statiag there was a problem,
although he did not say the brakes were unsafe. He also noted
the loadeL stopped in the same distance at the same speed each
time and that there was no inconsistency in stopping distance.

19. On the third day, another complaint was made regarding
the brakes and Halcomb felt that the machine could not continue
to be operated with the brakes designated as inoperable as a

934

?iolation of MSHA policy. Miller checked the brakes again the
same way he did the two previous days. Halcomb theri contacted
Herbert Ray Robbins, Mechanic Superintendent over the Eastern
Division of Kentucky Stone Company at the Mt. Vernon Shop.
-

20. Robbins began to operate the loader, putting it in first
gear, revving it up, then letting off the throttle and hitting
the brake. He applied the brakes just one time. He found "that
the brakes were still plenty safe to operate" (Tr. 566). He also
tested the right brake by putting his left foot on the ~ight
brake and revving the engine to about half throttle to determine
whether the brakes would hold, find.ing the brake.s held it OK. He
then told Baker "it was okay to go ahead and run it 11 ( 'l'r. 5 69 ) ,
and told Halcomb that he would giva the loader a thorough check
when it was taken into the shop, but he did not see any re~son to
. take it to the shop at that time, and said there was no reason to
take it out of production. Halcomb was told that it was okay to
run it and that it was safe to run, but Robbins said the brakes
were not as fast catchiag as a 980 loader with disc brakes •..
21. On the last day that Baker worked, May 2,. 1985, he marked
the brakes "INOP." but continued to use the loader. Miller got on
the loader and there was no difference in the ooeration of the
brakes from the previous examinations, indicati~g that the delay
in stopping was 2 to 3 feet and never 10 or 12 feet. This distance was within the normal limits established in the testimony of
Complainant's expert, Mark Lel;lking. At about 11:00 a.m., Halcomb
told Baker he (Halcomb> was sure there was nothing wrong with the
brakes and that Baker was marking the check.list "false" (Tr~ 438).
According to. Baker, Halcomb informed hi1n that he will have to let
him to go. According to Halcomb, he told Baker that. if he (Baker)
did not want to talk about it and work something out "I would let·
him go" (Tr. 438). Based on observations of Baker's demeanor, I
adopt his version. Baker left and has not subsequently been
employed by Kentucky Stone Company.
22. The Caterpillar ~88A loader has two brakes. One brake,
located on the right hand side of the steering column, applies
i11mediate braking pressure and does not take che piece of equip~
ment out of gear. The other brake, known as the "D-clutch,"
first takes the piece of machinery out of gear, then permits the
engine to be revved to permit raising of the bucket, and thert
begina braking. It is customary in Caterpillar 988A loaders for
the braking process on the application of a D-clutch to be
slightly delayed.
23. On cross-exarnination, the Complainant acknowledged that
no one informed him that the brakes on the 988A were unsafe.
24. Roger Hasty was working for Respondent at the time of
the discharge of Baker. Hasty indicated that he operated the
988A for several days, approximately 2 weeks, after Baker was

9 35

dismissed, and he had some problem with the loader stopping
inconsistently. Because of this inconsistency he placed his
loader on the lower side of the truck when loading on a hill side.
Hasty did not fill out a safety checklist for the 988A loader •
.
25. Sherman McClure, an employee of Respondent, was working
at the Pulaski Plant in 1985. He operated the 988A loader
approximately 2 or 3 weeks after the discharge of Baker, and felt
something was wrong with the brakes because they would roll 1 to
4 feet before coming to a complete stop, at which time they would
hold firmly. Even though McClure did not usually fill cut checklists, he indicated that he would have "probably" marked the
brakes inoperable had he been requested to fill out a safety
checklist (Tr. 286). During the time that he operated it, he
felt that he was familiar with the length of the roll upon
application of brakes and that the rolling was something that he
had been able to get used to.
·

26. Melvin Thomas has worked for Kentucky Stone Company for
22 years and works as a mechanic at the Mt. Vernon Shop. He
recalls being on the loader at approximately the same time Baker
was discharged and recalls that when the brakes were applied, th~
loader went approximately 3 feet and then stopped.
27. Mark Leuking was presented as an expert for the
Complainant. He has worked with two 988A loaders and operated
one on a daily basis. He experienced situations in which the
brakes on a 988A would permit rolling of varying distances before
the brakes caught.
28. Dale Tabor, Johnny Bruner, and Donnie Tabor all essentially noted that Baker, in loading their trucks with the 988A
loader, placed his loader below their trucks while loading on an
incline.
29. When a piece of equipment is transferred in or out of a
particular Kentucky Stone location, the Office Manager sending
out the piece of equipment Eills out a transfer form, baaed upon
instructions from the Superintendent, and then when the pi.ece of
equipment is received, the receiving Superintendent also inspects
the equipment. Each plant has its own costs charged to that
particular plant. At the time the 988A loader was received in
the Pulaski Plant, nothing was found wrong with it on inspection.
At the time it was shipped out, ther3 was likewise nothing indicated to be wrong with the equipment.

30. On the day that Stanley Ba~er was discharged, Danny
Roberts, another loader operator, operated the loader for the
rest of the day and for an additional period thereaftar. During
the period of time that Roberts operated the loader, nothing was

indicated on any checklist to indicate that the loader brakes
were inoperable. In the testimony of Roberts, he indicated that
the travel on the loader when the brakes were applied, was
customary and usual for a 988A and that the travel did not create
a danger. The length of travel was consistent. Roberts had no
trouble with the brakes during the period of time that he operated
the equipment until it was transferred to Tyrone. Checklists for ·
May 21, 22, 23, 24, 28, 30, and 31 and June 1, 3, 4, 5, 6, 7, and
8, all signed by Russell Hines, indicate the brakes were marked

"OK."
31. The 988A loader was received on April 1, 1985, from
Yellow Rock, near Beatyville, Kentucky, and was shipped to
Tyrone, near Lawrenceburg, Kentucky, on May 7, 1985. It was
shipped back to the Pulaski Plant on May 13, 1985, and remained
in Pulaski County until June 20, 1985, when it was shipped to the
Mto Vernon Shop. The starter and electrical system were repaired
at that time, and the brakes were serviced. No problems were
reported with the brakes from the time the loader was received on
May 13 until it was shipped to Mt. Vernon on June 20.
32. Halcomb also indicated that he had had certain previous
problems with Baker, including cleaning up stone in the traveled
areas to prevent customers' trucks from having to back their
tires over them; problems with keeping Baker watching for trucks;
problems with Baker being in the Control Room; problems with
Baker leaving his loader; and problems with Baker not doing a
good job servicing his loader. He also recalled a problem of
excessive speed which resulted in damage to the pick-up truck
belonging to Roberts.
33. Halcomb indicated that he would not have "sent (Baker)
home if it hadn't been for the false check sheets" (Tr. 460).
34. Halcomb testified that Baker had at least two and maybe
three warnings before the day that he filed the last checklist
and was discharged. Halcomb said that throughout that time,
Baker did not tell him that the loader brakes were inconsistent
ana did not stop the same way every time, although he had several
opportunities to do so. Halcomb said he first heard Baker claim
a variation in the way the brakes stopped on the first day of the
trial proceedings. According to Halcomb, Baker did not tell
Miller or Robbins of variations in the brakes at the time of
stopping. In contrast Baker testified, in essence, that he told
Millec the loader rolled before the brakes caught. I adopt
Baker's version due to my observations of his demeanor and also
as it finds some corroboration in the testimony of Miller that he
checked the stopping distance of the loader.

937

Issues
1. Whether the Complainant has established that he was
engaged in an activity protected by the Act.

2. If so, whether the Complainant suffered adverse action
as the result of the protected activity.
3.

If so, to what relief is he entitled.

Discussion
The Commission, in a recent decision, Goff v. Youghiogheny &
Ohio Coal Company, 8 FMSHRC 1860 (December 1986), reiterated the
legal standards to be applied in a case where a miner has alleged
acts of discrimination. The Commission, Goff, supra, at·l863,
stated as follows:
~~
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 FMS.HRC 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 Fasula-Robinette test).
Protected activit;x
The key issue presented for resolution is whether Baker was
engaged in a protected activity when he checked the brakes
"INOP.", on the daily safety checklist. In essence, according to
Baker, he initially marked the brakes on the 98BA front-end
loader as being "INOP.", as it continued to roll between 5 and 12
feet after application of the D-clutch brake petal, and that when
the brakes did catch they would catch suddenly. Also, according
to Baker, the distance that the brake on the front-end loader
would roll upon application of the D-clutch was inconsistent.
Baker continued to mark the daily safety form up to and
including the date of his discharge as indicating the brakes
being "INOP." as the brakes continued to perform in the fashion
that they had on the first day. According to Baker, he was concerned with the hazard of being unable to stop upon approaching a

938

truck down the incline or upon working leveling at the top of the
stockpile. Halcomb, in essence, testified that marking the
brakes as being "INOP." was false, especially after he had Miller
drive it on three occasions after Baker had marked them to be
"INOP.", and Miller had said that he could not find any~hing
wrong with the brakes. However, according to Baker, Miller had
told him that the brakes are not catching like they ought to.
This is corroborated by Miller who indicated, upon cross examinations, that he told Baker that there was something wrong with the
brakes. Thus, I adopt Baker's version of what Miller told him,
rather than the version of Halcomb that he told Baker that Miller
told him that he could not find anything wrong with the brakes.
Habcomb testified that upon driving the f rout-end loader
Robbins had told him that the brakes were not as fast at catching
as the 980 with the disc brakes and that he sure he told that to
Baker. Robbins said he found that upon stopping, the brakes were
plenty safe to operate and stop within a acceptable stoppage.
Also, he said that any traveling of the loader upon the application of the brakes was consistent and could be adjusted to. He
also opined that he could not find any danger with this traveling.
Robbins had testified that he told Baker that the brakes were OK
and to run the loader.
Although Robbins indicated the brakes were OK, he did not
contradict the testimony of Baker on direct that specifically he
(Robbins) had told him that the brakes did not catch like they
ought to and that he was going to have to put on a booster on
them. .Also, although Robbins and Miller presented testimony at
variance with Baker with regard to the di3tance that the 988A
rolled upon application of the D-clutch and as to whether the
distance of the roll was consistent or not, I note that Robbins
tested it only once. Also, there is a no evidence that either
Miller or Robbins drove the front-end loader under the conditions
driven by Baker, i.e. loaded and down a incline. In this connection, I find that the testimony of Baker that Robbins tested the
loader by driving it on the level around a pile to be uncontradicted,
In addition, in evaluating whether Baker had good cause to
believe the brakes were not "OK" and were "INOP.", I placed more
weight upcn the testimony of Hasty and McClure, based on their
demeanor, rather than on the testimony of Miller and Robbins.
In
this connection, I noted that Hasty corroborated Baker's testimony
that the orakes were inconsistent and that once they caught they
caught suddenly. Also, McClure, who similarly operated the 988A
after Baker was fired, opined that something was wrong with the
brakes and that he would have ~ar~ed the safety form as "!NOP.",
as woulG have Hasty. Also, I find significant that Hasty, like
Baker, placed the trucks that he loaded uphill from the loader as

939

did Baker upon transferring to che 988A.
Indeed, Baker's action
in this regard was corroborated by Dale Tabor, Donny Tabor, Jack
Bruner. Also, Melvin Thomas, a mechanic at the Mount Vernon plant
under Robbins, had indicated that when he drove the 988A about the
time when Baker was fired it rolled and stopped suddenly.
Although he indicated that the rolling of the loader approximately
3 feet before it stopped was consistent, he opined that the loader
in question takes longer than usual to stop than other 988As, and
therefore that the brakes were not working properly and that there
had to be something-wrong.
Accordingly, I conclude that Baker operated in good faith in
checking the brakes as being "INOP."
(See, Secretary on Behalf
of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April
1981))0 No bad faith can be found by Baker not following the
opinions of Miller and Robbins.
Neither of them actually operated
the front-end loader while driving loaded down an incline, and
neither of them physically performed any mechanical investigation
or examination of the braking system.
I find that the record does
not present sufficient evidence to conclude that Baker's motivation
in checking the brakes as being "INOP.", was as a result of other
than safety concerns. Accordingly, I find that Baker engaged in
protected activity in filling out the daily safety forms during the
period that he was riding the 988A loader, and marking the brakes
as "INOP."
(Robinette, supra).
Motivation
I find that when Halcomb sent Baker home on May 2nd, 1985,
that Baker was, in essence, fired and that this constitutes an
adverse action. Halcomb testified, in essence, that when he sent
Baker home on May 2, 1985, for,in his opinion, falsely filling
out the daily checklist, it was the straw that broke the camels
back@ When asked whether the sole reason for firing Baker was
the false checklist, he indicated in the aff icmative and "the
other stuff building up to it too."
(Tr. 504 > In this fashion, he indicated various other complaints that he had with Baker
including Baker not cleaning up stones on tha road, not servicing
the loader properly, driving the loader at a unsafe speed, being
in the control room Can unauthorized location), and not being
available when needed to service truckers. However, there is no
evidence chat respondent would have fired complainant for these
activities alone.
Indeed, when asked why Baker was fired Halcomb
indicated that he was sent home "mostly" for filling out the
false truck sheets and that there were no other reasons "at that
time, 11 (Tr. 460). Also, I find it most significant that when
asked whecher the other problems he had been having with Baker
affected him in any way in determining to send Baker home on May
2, he said as follows: "No, I don't think I would have sent him
home if it hadn't been for the false check sheets," (Tr. 460).

940

Thusr based upon the testimony of Halcomb I conclude that the
complainant here has established that the firing was motivated in
any part by the protected activity.
~See, Robinette, supra.)
Respondent has not rebutted the prima facie case. Indeed
the evidence establishes that the sole motivation for the firing
of complainant on May 2, was the protected activity. I also find
that an affirmative defense of respondent cannot be sustained, as
the evidence fails to establish that respondent would have fired
complainant based on the nonprotected activities alone.
(Robinette, supra.)
·
Therefore I conclude that complainant has established a
cause of action under section 105(c) of the Act. In light of
this conclusion, Respondent's Motion, made at the Hearing for a
directed opinion, is DENIED.
ORDER

1. Complainant shall file a statement within 20 days of
this decision indicating the specific relief requested. This
statement shall show the amount he claims as back pay, if any,
and interest to be calculated in accordance with the formula in
Secretary/Bailey v. Arkansas Carbona, 5 FMSHRC 2042 (1984). The
statement shall also show the amount he requests for attorney's
fees and necessary legal expenses if any. The statements shall
be served on Respondent who shall have 20 days from the date
service is attempted to reply thereto.
2. This decision is not final until a further order is
issued with respect to Complainant's relief and the amount of
complainant's entitlement to b~nd~ees.

Avra1n Weisoerger
Adminis~rative Law Judge
Distribution:
Wendy .F. Tucker, Esq., Ambrose, Wilson, Grimm & Durand, Valley
Fidelity Bank Building, P. o. Box 2466, Knoxville, TN 37901-2466
(Certified Mail)
John G. Prather, Jr., Esq., P. O. Box 105, 38 Public Square,
Somerset, KY 42501 (Certified Mail)
dcp

941

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

JUL 2,81988
THE HELEN MINING COMPANY,
Contestant

CON'rEST PROCEEDINGS

v.

Docket No. PENN 88-52-R
Citation No. 2881573; 10/27/87

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

Docket No. PENN 88-53-R
Citation No. 2881574; 10/27/87
Docket No. PENN 88-54-R
Citation No. 2881575; 10/27/87
Docket No. PENN 88-55-R
Order No. 2881576; 10/27/87
.,

:

Docket No. PENN 88-56-R
Citation No. 2881577; 10/27/87
Docket No. PENN 88-57-R
Citation No. 2881578; 10/27/87
Homer City Mine
Mine ID 36-00926

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 88-219
A.C. No. 36-00926-03737

v.
Homer City Mine
THE HELEN MINING COMPANY,
Respondent
DECISIONS
Appearances:

Ronald B. Johnson, Esq., Volk, Frankovitch,
Anetakis, Recht, Robertson & Hellerstedt,
Wheeling, West Virginia, for the
Contestant/Respondent;
Howard K. Agran, Esq., Office 0£ the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Respondent/Petitioner.

942

Before:

Judge Koutras
Statement of the Proceedings

These consolidated proceedings concern six Notices of
Contests filed by the Helen Mining Company pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 815(d), challenging the validity of four section
104(a) citations, with special "significant and substantial"
(S&S) findings, one section 104(a) non-S&S citation, and one
section 104(d)(2) order, issued at the mine on October 27,
1987. All of the contested citations and order were issued
following a fatal accident investigation conducted by MSHA. A
hearing was convened in Indiana, Pennsylvania, on June 21,
1988, and the parties appeared and participated fully therein.
The parties waived the filing of any posthearing briefs, and
relied on the record made in the course of the hearing.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 U.S.C. § 801 et seq.
2.

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

The issues presented in these proceedings are as follows:
1. Whether or not the conditions and
practices cited in the citations and order
constituted violations of the cited mandatory
safety standards and the Act, and if so, the
appropriate civil penalty assessments that
should be assessed against the Helen Mining
Company, taking into account the civil penalty
assessment criteria found in section llOCi) of
the Act.
2. Whether the inspector's special
"significant and substantial" findings should
be aff i.cmed, and whether his "unwarrantable
failure" finding with respect to the contested
order should likewise be affirmed.
Discussion
The essential facts surrounding the fatality which
prompted an MSHA accident investigation and resulted in the

943

issuance of the contested citations and order are not in dispute. The record reflects that on October 25, 1987, a miner
was fatally injured when a runaway locomotive and trip of cars
crashed into a parked personnel carrier causing it to jump the
track and strike the miner. At the time of the accident, the
miner was performing work in connection with the repair of the
track in the vicinity of the parked personnel carrier.
Prior to the taking of any testimony in these proceedings,
and in the course of a brief bench pre-trial conference with
counsel for the parties, they advised me that after further
discussions and negotiations, the parties proposed to settle
all of the contested citations and order, and they were
afforded an opportunity to present their oral arguments on the
record in support of their joint proposals (Tr. 5). A discussion concerning the contested citations and order, including
the arguments presented by the parties in support of their
settlement proposals, follows below.
Docket No. PENN 88-56-R
In this case the inspector issued a section 104(a) "S&S"
Citation No. 2881577, on October 27, 1987, charging an alleged
violation of the safeguard requirements of 30 C.F.R. § 75.1403,
and the condition or practice is described as follows:
Material in the form of a 6' long track rail
was being transported on the top of a Galis
battery jeep TP7, serial no. 130-270115. This
information was revealed during a fatal accident investigation.
In issuing the citation, the inspector made reference to
a previously issued safeguard Notice No. 0616506, issued on
January 30, 1979, pursuant to 30 C.F.R. § 75.1403-7(0), which
provides as follows:
Extraneous materials or supplies should not be
transported on top of equipment; however,
materials and supplies that are necessary for
or related to the operation of such equipment
may be transported on top of such equipment if
a hazard is not introduced.
MSHA's counsel moved that the contested citation be
vacated, and in support of this request, co~nsel asserted that
based on interviews with the miners, as well as further discussions with the operator, the six-foot rail which was being
transported on the jeep was securely placed and posed no

944

hazard to any of the miners who were also being transported by
the jeep. Under the circumstances, counsel asserted that the
facts and circumstances presented do not establish a violation
of the safeguard provision relied on by the inspector in
support of the citation (Tr. 7-8).
After due consideration of the oral motion to vacate the
citation, it was granted from the bench, and my ruling is
herein reaffirmed (Tr. 9). Accordingly, Citation No. 2881577
IS VACATED, and MSHA's proposal for assessment of a civil
penalty IS DISMISSED.
Docket No. PENN 88-57-R
In this case the inspector issued a section 104(a)
non-"S&S" Citation No. 2881578, on October 27, 1987, citing a
violation of section 103Ck> of the Act, and the condition or
practice cited is described as follows:
103(k) order no. 2881572 issued 10-25-87 following a fatal accident was not complied with during the 8:01 AM to 4:00 PM shift on 10-26-87 in
that a 15 ton Goodman locomotive serial no.
437-366 was moved 500 feet to the motor barn.
Galis battery jeep TPS serial no. 130-270116
and w.va. Armature jeep TP 12 serial no. 2000766
were removed from the accident scene approximately 1,000 feet.
In the left bottom 5 supply
cars were moved approximately 1,600 feet to the
no. 6 side track, and a closed area between
no. 3 belt station box and 3C switch along the ·
South main track was entered by unauthorized
person and rehabilitation work done at the
accident scene. 103 K order no. 2881572 was not
modified or terminated to allow any of the above
work to be performed.
Section 103Ck) of the Act provides as follows:
In the event of any accident occurring in
a coal or other mine, an authorized representative of the Secretary, when present, may issue
such orders as he deems appropriate to insure
the safety of any person in the coal or other
mine, and the operator of such mine shall
obtain the approval of such representative, in
consultation with appropriate State representatives, when faasible, of any plan to recover
any person in such mine or to recover the coal

or other mine or return affected areas of such
mine to normal.
MSHA's counsel asserted that no proposed civil penalty
assessment was filed with respect to the conteste_d citation,
and that the citation was subsequently vacated by the· inspector on March 22, 1988 (exhibit P-1). The justification by the
inspector for vacating the citation states as follows:
104(a) Citation No. 2881578 issued on 10-27-87,
for a violation of 103Ck) of the Act is vacated.
Upon review and discussion it was determi~ed
that company personnel could have interpreted
that MSHA was in agreement with the State mine
inspector that the investigation of the equipment involved in the accident had been completed and the equipment could be moved.
MSHA's oral motion to dismiss this case on the ground
that the contested citation has been previously vacated was
granted from the bench (Tr. 9-10), and my ruling in this
regard is herein reaffirmed. This case IS DISMISSED.
MSHA.'s counsel stated that the remaining contested citations and order were issued as a result of a fatal accident
which occurred at the mine on October 25, 1987. He explained
that three workers were repairing a track haulage rail when
they suddenly discovered that some equipment was moving on the
rail toward them. All of the workers, except for the accident
victim, were able to get out of the way of the moving equipment. The victim was struck by a TP-8 jeep personnel carrier
which had been parked on the rail approximately 15 feet from
where the work to repair the broken rail was being performed.
That particular jeep was struck by a second TP-7 jeep parked
on the rail, and it was struck by the moving equipment consisting of a trip of five supply cars and a locomotive that were
all moving together towards the accident scene. Each of the
contested citations and order concern certain alleged violative conditions with respect to each of these vehicles CTr.
12).
Docket No. PENN 88-52-R
In this case the inspector issued a section 104Ca) "S&S"
Citation No. 2881573, on October 27, 1987, citing a violation
of the safeguard requirements of 30 C.F.R. § 75.1403, and the
condition or practice cited is described a3 follows:

946

The safety chain for the brake wheel of
the 15 Ton Goodman battery locomotive, serial
no. 437-366, was not attached to the brake
wheel when the locomotive was parked on the
track haulage at the motor barn area of the _
shaft bottom. This condition may have been.a
contributing factor to the cause of a fatal
accident that occurred on 10-25-87. This information was revealed during a fatal accident
investigation.
In support of the citation, the inspector made reference
to a previously issued safeguard Notice No. 2 TJS, issued on
February 5, 1974, (Exhibit G-3). That safeguard required that
all track locomotives be maintained in a safe operating
condition.
MSHA's counsel moved to amend the proposed civil penalty
assessment for this violation from $3,500 to $500. In support
of the motion, counsel stated that the original assessment was
based on the conclusions made in MSHA's accident report of
investigation that the failure to connect the safety chain to
the braking wheel used to prevent the wheel from moving once
the brake is engaged caused the accident.
Counsel pointed out that the citation states that the
failure to connect the safety chain may have been a contributing factor to the accident, rather than the cause, and that·
MSHA now concedes that the failure to connect the chain may or
may not have been a contributing factor.
Counsel explained further that the locomotive was
with thee braking systems consisting of an electrical
braking system, a pneumatic air-powered system, and a mechanical s~stem similar to an emergency brake on a car. The
pneumatic brake would be used to engage the brake shoes to
make contact with the locomotive wheels. The mechanical wheel
in question would be turned to prevent the brakes from moving •
. Once this wheel was turned and set, the chain would then
prevent it from moving. However, the use of the chain alone
would not have prevented the locomotive from moving, and even
if it were attached to the wheel, it would not have prevented
"a runaway." MSHA now believes that the cause of the accident
was the failure to place blocking material to prevent the
locomotive and supply trip from moving (Tr. 13-17).
equipp~d

Helen Mining's counsel stated that the wheel in question
. is a self-locking mechanism, and if the wheel is turned tight,
it would be impossible for it to turn on its own, and the

947

chain simply prevents the wheel from moving further. Since
the wheel cannot move on its own, the chain would be meaningless in terms of its relationship to the accident (Tr. 48-49).
MSHA's counsel confirmed that a safety chain_ was in fact
provided for the cited locomotive, but was not used, and that
in the case of the underlying safeguard notice issued in 1974,
no chain was provided at all (Tr. 49). Counsel also confirmed
that aside from the safety chain, the locomotive was inspected
by MSHA and found to be in a safe operating condition, and the
mechanical braking mechanism was operable. In.addition,, the
brake pads and linkage were also inspected and found to be in
proper operational condition (Tr. 51).
Docket No. PENN 88-53-R
In this case the inspector issued a section 104(a) "S&S"
Citation No. 2881574, on October 27, 1987, citing a violation
of the safeguard requirements of 30 C.F.R. § 75.1403, and the
condition or practice is described as follows:
There were 5 loaded supply cars consisting
of 3.cars of concrete block and 2 cars of
wooden crib blocks and a 15 ton. Goodman locomotive standing on the track in the chute between
the 2 West track and the South main track, and
the cars were not blocked. This condition may
have been a contributing factor to the cause of
a fatal accident that occurred on 10-25-87.
This information was revealed during a fatal
accident investigation.
In support of the citation, the inspector relied on a
.previously issued safeguard Notice 1 TJS, December 26, 1983,
requiring that standing cars on any track be properly blocked
or dragged.
MSHA's counsel took the position that had the locomotive
and the 5-car trip been properly blocked there would have been
no movement of the equipment and no accident (Tr. 17). However, counsel moved to amend the proposed civil penalty assessment from $3,500 to $2,500, and in support of this motion,
asserted that contrary to the special asseosmenc: narrative
findings that the three miners working on the track rail were
not normally assigned to those d~ties, and that the foreman
should therefore have instructed them on safe work procedures,
including the blocking of the trip of cars, the facts disclosed that two of the miners, including the accident victim
R. D. Schaffer, were locomotive motormen with approximately

948

18 years of mining experience, and that the other miner was a
trackman.
Counsel stated that while it may be true that the three
miner's were not normally assigned to do track re.pair work,
their regular work assignments as motormen and trackmen
required them to be familiar with the necessity for blocking
haulage equipment against possible movement, particularly in
the case of the two motormen who had over 18 years of experience. Based on interviews with witnesses, counsel stated that
contrary to MSHA's special assessment narrative statement, the
miners in question knew that the equipment needed to be
blocked, and they failed to insure that this was done either
through a mistake or inadvertence. Counsel proffered that -if
called to testify, one of the witnesses, William Knesh, who
was present in the courtroom, would so testify. Mr. Knesh was
the locomotive operat0r when it was parked, and he would
testify that he yelled to the accident victim to make sure to
block the cars, saw him duck behind the cars while bending
over, and he assumed that he had blocked the cars against
movement (Tr. 18-22).
MSHA's counsel also pointed out that although the investigating team could find no evidence of any blocking material at
the time of the investigation, since the equipment had been
moved during the rescue of the victim, any blocking materials
which may have been present would also have been moved (Tr.
22).
Docket No. PENN 88-54-R
In this case the inspector issued a section 104(a) "S&S"
Citation No. 2881575, on October 27, 1987, citing a violation
of the safeguarding requirements of 30 C.F.R. § 75.1403, and
the condition or practice is described as follows:
The Galis battery jeep TP8 serial
no. 130-270116 was parked on the track haulage
at 4 left crossing and was not block_ed when not
in use. This information was revealed during a
fatal accident investigation.
In support of the citation, the inspector relied on a
prior safeguard Citation No. 2254834, April 26, 1984, issued
pursuant to 30 C.F.R. § 75.1403-lO(e), and which required
positive acting stopblocks or derails for all mine haulage
equipment.

949

MSHA's counsel proposed no changes for this citation and
stated that Helen Mining Company has agreed to pay the full
amount of the proposed civil penalty assessment of $136 (Tr.
23). The parties offered supporting arguments for my approval
of this settlement (Tr. 24-27).
Docket No. PENN 88-55-R
In this case the inspector issued a section 104(d)(2)
Order No. 2881576, on October 27, 1987, citing the safeguard
requirements of 30 C.F.R. S 75.1403, and the condition or
practice is described as follows:
The Galis battery jeep TP7 serial
no. 130-270115 was parked on the track at the
motor barn area by Sam Ferguson, Foreman, and
was not adequately blocked in that a cap wedge
was used f6r blocking. This condition may have
been a contributing factor to the cause of a
fatal accident that occurred 10-25-87. This
information was revealed during a fatal
accident investigation.
In support of the order, the in~pector relied oh a previously issued safeguard Notice No. 2254834, April 26, 19a4,
requiring the blocking of all haulage equipment when it is not
in use. This safeguard was issued when an inspector found
that a shuttle car was not provided with positive active
stopblocks.
MSHA's counsel pointed out that this violation concerns
inadequate blocking for the TP-7 jeep, and that the jeep was
in fact blocked with a cap wedge. Counsel conceded that the
cited condition may or may not have contributed to the accident.
Counsel also pointed out that the safeguard upon which
the order was based applied to a shuttle car, and it did not.·
specify the appropriate method for blocking a jeep. Under the
circumstances, counsel moved to modify the order to a section
104(a) citation, and to amend the proposed civil penalty
assessment from $3,500 to $500.
In suppoct of the motions, counsel asserted that the lack
of any specific notice in the underlying safeguard as to the
type of blocking which would be considered adequate for the
jeep does not support the unwarrantable failure order.· F~r~ .
ther, counsel asserted that the faces establish that a wooden
wedge was used under the wheel of the jeep, and that coupled
with the fact that the jeep was braked, it was highly unlik~l~.

950

that the jeep would have moved on its own had it not been
struck by the runaway trip of cars (Tr. 28-38).
MSHA's counsel confirmed that the inspectors who issued
the citations and order and conducted the acciden.t investigation were presenc in the courtroom, and that they concurred
with the settlement proposals advanced by the parties (Tr.
41-42). The parties also confirmed that the arguments presented on the hearing record in support of their joint settlement proposals in these proceedings would be corroborated by
their respective witnesses who were present in the courtroom
in the event they were called to testify (Tr. 51).
The parties submitted information concerning Helen
Mining's history of prior violations, mine production information, and the size and scope of its mining operation (Tr. 57;
Exhibits G-4, G-5, and G-6), and I have considered this information in approving the proposed settlements. I have also
considered the inspectors' negligence and gravity findings as
reflected by the contested citations and runended order, and
take note of the fact that all of the contested violations
were timely abated in good faith by the mine operator.
After due consideration of the arguments presented by the
parties, MSHA's oral motions for approval of the settlements
and to amend its civil penalty proposals for Citation
Nos. 2881573, 2881574, and 2881576, and to modify section
104Cd)(2) Order No. 2881576 to a section 104(a) citation were
granted from the bench (Tr. 43-44, 54). With regard to the
settlement proposal for Citation No. 2881575, requiring Helen
Mining Company to pay the full amount of the $136 civil
penalty assessment for the violation in question, the settlement proposal was likewise approved from the bench (Tr. 43).
Conclusion
Pursuant to the requirements of Commission Rule 30,
29 C.F.R. § 2700.30, and after careful consideration of the
pleadings and arguments in support of the proposed settlement
dispositions agreed to by the parties, I conclude and find
that they are reasonable and in the public interest and they
ace approved. Accordingly, my bench decisions in this regard
ARE REAFFIRMED. ·
ORDER
In view of the foregoing findings and conclusions, section 104Ca) Citation No. 2881577, October 27, 1987, 30 C.F.R.
§ 75.1403, Docket No. PENN 88-56-R, IS VACA'rED, and MSHA's

951

proposed civil penalty assessment IS DISMISSED.
Company's Notice of Contest IS DISMISSED.

Helen Mining

Section 104(a) Citation No. 2881578, October 27, 1987,
Docket No. PENN 88-57-R, citing an alleged violation of section 103(k) of the Act has been previously vacated by-MSHA and
no proposed civil penalty assessment was filed. Accordingly,
Helen Mining Company's Notice of Contest IS DISMISSED.
All of the remaining contested and settled citations not
otherwise dismissed or vacated ARE AFFIRMED, and Helen Mining
Company IS ORDERED to pay the following civil penalty assessments in satisfaction of the violations in question within
thirty (30) days of the date of these decisions and order:
Docket No.
PENN 88-52-R
PENN 88-53-R
PENN 88-54-R
PENN 88-55-R

Citation No.

Date

30 C.F.R.
Section

Assessment.

2881573
2881574
2881575
2881576

10/27/87
10/27/87
10/27/87
10/27/87

75.1403
75.1403
75.1403
75.1403

$ 500
$2,500
$ 136
$ 500

In view of the settlement disposition of the aforementioned dockets, Helen Mining Company's Notices of Contest ARE
DISMISSED.

~~u~s~
Administrative Law Judge

Distribution:
Ronald B. Johnson, Esq., Volk, Frankovitch, Anetakis, Recht,
Robertson & Hellerstedt, 3000 Boury Center, Wheeling, WV 26003
(Certified Mail)
Howard K. Agranr Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)

/f b

952